Simon Tolson Unlike the restrained and remote judges of the past, many now snap at the ankles of the advocates to ensure cases proceed in the way they should
The recent judgment of Mr Justice Coulson at the end of last month in Brookfield vs Mott MacDonald is a fine illustration of the courts showing leadership in the judging arena. Twenty years ago, judges were generally tame at the interlocutory stages and on a tight lead. Now, they regularly bark and bite when they see actions proceeding down the wrong path.
The aim of judicial intervention is to promote justice by saving time and costs and concentrating on essential issues. Not every intervention is of this character or achieves this goal and not everyone has adapted to this change or approves of it. However, my perception is that the appreciation of its value is on the rise and the aim of judicial intervention is to a considerable degree being achieved.
The philosophy governing a judge’s conduct of proceedings has been the subject of debate from the earliest times. The Book of Genesis says the judge is bound to revere the rules of natural justice and give both sides a fair crack. Before he pronounced judgment, God gave Adam the chance to put forward his defence to the charge of having eaten the apple. Similarly, he allowed Cain to explain the disappearance of his brother Abel.
These are but a few examples of codes that govern judicial conduct. These “principles” are everlasting and they retain their full force today. Put succinctly, they provide that the parties are entitled to a fair opportunity to present their cases before a judge who is open minded as to the merits and the outcome. However, the interventionist judge must always keep the principles in mind and they must inform his intervention. However, subject to this call for proper self-restraint, the interventionist role is both healthy and to be encouraged.
One area that exemplifies the advantages of judicial intervention and ensures that the overriding objective of the Civil Procedure Rules is safeguarded is skeleton arguments. Skeleton arguments are the primary weapon in the advocate’s armoury and the medium for short and focused hearings. As it is the party’s first speech to the judge that he is allowed to deliver without any interruption, its impact cannot be overestimated. Once the skeleton has been read, the purpose of the advocates’ speeches is essentially to elaborate and supplement the skeletons and answer the questions raised about them by the judge. This is an area where the judge must be particularly cautious: questioning out of turn may frustrate a planned cross-examination. If he asks (as he is entitled to) leading questions, the advocate may psychologically find it difficult to resist the perceived judicial pressure to give that answer.
However, judicial intervention can have the effect of converting the advocate’s monologue into a debate that concentrates on the issues selected by the judge. This has an impact on the role of the advocate and often, too, on the expectations of the client.
God gave Adam the chance to put forward his defence to the charge of having eaten the apple. Similarly, he allowed Cain to explain the disappearance of his brother Abel
The talent in advocacy is no longer the ability to drone on incessantly for hours. It is the ability to aid the judge, most particularly in answering his questions and resolving his doubts. The advocate must have the resources to deal with the judicial intervention, the confidence not to be repressed, the resilience to respond, the tact to placate and the authority to inform and persuade.
How about the client, and their expectations? The traditional course of litigation afforded them the pleasure of listening to the mellisonant presentation by their advocate of the history and facts as they contend them to be, and of the law as it appears to their legal advisers. This was their “day in court”.
If the client still has any such expectation, it is the duty of my profession to disabuse them of it and explain the critical role of the skeleton argument. They should be told that the skeleton takes the place (at least in part) of the opening address. I regret that the complaint of the client is often attributable to a failure to appreciate the role and importance of the skeleton – and the failure of their legal advisers to give the preparation of the skeleton the importance and attention it requires.
A last word on the Mott MacDonald case, where the legal costs have now reached £75m: will mediation be the medicine the parties require, as Mr Justice Coulson suggested?
We shall all have to wait and see.
Simon Tolson is a partner in Fenwick Elliott