Being there part 10
On one memorable occasion I had a disagreement with a judge about whether I was actually at court on time or not.
I was appearing on another circuit. I will not say where. It was a case all about a right of way. Did the owners of a particular farm have the right cross my client' s land or not? Had they acquired this right by the necessary period of use? My clients wanted to sell the property and the outcome made a big difference to the value.
My opponent was an able and talented barrister who I knew well (and although we were both juniors then he is now QC also), and also a fellow member of the Northern Circuit (and so like me appearing on a circuit which was not where he usually practised). There were a number of issues in the case which I will not bore you with. However one issue was crucial and both myself and my opponent thought that this should be a preliminary issue, which might mean that a case that would go for three or four days might finish in one and a half. We had to put quite a lot of careful thought into deciding precisely how the preliminary issue should be phrased. (With legal issues set down for the court, as with questions generally, if you ask a silly question you are likely to get a silly answer).
We were both at this particular court at 9 a.m. The case was due to start at 10:30 a.m. However the court had a very full list. That meant that there were various other cases which would be called on in court at that time. We spoke to the court usher and asked her to let us know as soon as the court will be ready for us. We explained that we were working on trying to save court time by setting out a preliminary issue. We thought it would be ready for 10:30 a.m. but it was touch and go.
Moments after 10:30 a.m., just as we had finished drafting the preliminary issue, she came into the robing room and said "you are needed in court". We popped on our wigs and gowns (already having put our winged collars and bands on). I popped briefly to the toilet on my way to court. Neither of us had any idea that there was any particular rush. It was not as though we had been loafing around. We were working hard at trying to restrict the issues and so save court time (which judges always encourage). We also decided that a site visit was necessary to allow the judge to do the case as quickly and effectively as possible. The land was only about 20 minutes drive away.
Due to my visit I arrived in court about two minutes after my opponent. As I walked in to my astonishment the judge was tearing into him for allegedly being late. The judge then said to me, "where have you just been?". "The gentleman's toilet" I replied. "I think that is a most impertinent answer." retorted the judge in some indignation. " I am sorry that you feel that way, but you asked me a question and I gave you a truthful answer." I responded. Bear in mind this is all going on in front of each side's hapless clients. "Neither of you are from this circuit are you? " said the judge. "No." I replied. "No one from this circuit would ever behave like this" the judge carried on, with rather more of the same. When the torrent of complaints slowed down, I explained to him what we have been doing, and that we thought there ought to be a preliminary issue and a site visit. "Nonsense", he said. Very well then, I said, in that case I will open the case as a whole (when you open the case you explain what it is about).
After about 10 minutes, as I unfolded the story and the issues the judge suddenly said "I now see why you thought that a preliminary issue and a site visit would be a good idea. I have changed my mind. We will have a preliminary issue, and we will go on a site visit. Is it all right if I travel with both counsel in one of your motor cars?".
My opponent and I looked at one another. This promised to be the mother of all fun journeys. I will tell you how it developed next week.