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With prejudice

I went to court today with my solicitor SlipperySlope on a road traffic case in which liability was in dispute. The judge opened the proceedings with the following. “I’ve read through the papers and I’m afraid that I stumbled upon a reference in the correspondence to a without prejudice offer made by the defendant to settle liability on a 75/25 basis in the claimant’s favour. My first question is how on earth this managed to get into the papers?”

SlipperySlope passed me a note which he instructed me to read. It was several sentences long and couldn’t possibly just have been drafted in those few seconds. I stood up. “Your honour,” I read, “may I humbly and respectfully [Slippery's words, not mine] apologise to the court. I don’t know how on earth that has happened and can only assume it was an administrative error by one of the legal secretaries at the office of my instructing solicitors. I apologise profusely.”

I then took the pause suggested in Slippery’s note before continuing. “For what it’s worth, we remain happy for you to continue hearing the case and are quite assured and indeed trust wholeheartedly that you will be able to erase it from your scrupulous judicial mind.”

Now this was rich given the fact that the offer prejudiced the other side and not us. However, it had the intended effect of setting the narrative for what came next.

“Yes, I’m sure you would be quite happy with that, Mr BabyBarista, since as you well know the prejudice doesn’t lie with you. The real question is whether the other side are willing to be quite so trusting of my, er, scrupulous judicial mind.” He smiled and looked over at my opponent who was looking furious at the trick which had just been pulled.

“Your Honour, er…” he was clearly struggling to find the form words to tell the judge that they most certainly didn’t trust him to be fair after he had stumbled upon such a prejudicial piece of information.

“Yes?” smiled the judge, all innocence and light. He then added, “If it helps, you might also want to consider that if you would like an adjournment then there are no judges free today and in all likelihood the case won’t come come back for another two or three months.”

“Oh,” came the reply.

“I say that only because I can imagine how inconvenient it would be for your independent witnesses to have to return once more.” The judge smiled again.
“Yes, quite so,” said my opponent looking completely lost.

“So, taking account of all the circumstances, do you think that you will find it possible to trust my impartiality in this case.”

Now this was the moment of decision for my opponent. Either he stood up to the judge’s bullying and demanded that he withdrew from the case or alternatively he back down immediately and with as much grace as possible. But instead, having been ambushed so effectively, all he could muster was, “Er…”

In itself, a small hesitation might not have seemed significant. But when the judge had just put his own integrity on the line, it was enough to lose him the case. My opponent was caught between the proverbial rock and hard place and chose to plough on whilst facing a judge who had decided to take the lack of trust personally and was more than ever prejudiced against the other side’s case.

So much for the right to a fair trial. Though the real problem for me is that this is at least the tenth time that Slippery has pulled this trick and each time he manages to get away with it.

BabyBarista is a fictional account of a junior barrister written by Tim Kevan whose new novel is Law and Peace. For more information and to read past posts visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

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