The Court of Appeal has provided valuable guidance for advocates in civil proceedings on how far it is necessary to push a point, when the Judge hearing your case has indicated in clear terms that (s)he intends to reach a particular (albeit wrong) decision.
The case was Frey v Labrouche  EWCA Civ 881. The defendants had applied to strike out claims in a complex multi-jurisdictional trust dispute. At first instance in the High Court, the judge hearing the application stated at the outset that with the benefit of five hours pre-reading he was “firmly of the view” that on the basis of the papers the application for striking out was “beyond the reach of sustained argument”. He therefore indicated, before hearing either party, that he simply intended to allow the claim to proceed and to make case management directions.
When addressed by the Defendant’s advocate, who said that he was prepared if necessary to spend the time allocated to the application in attempting to persuade the judge that his initial view was wrong, and that if he did not do so his only alternative would be to appeal the decision, the judge responded that “I do not intend to force you to try and persuade me to the contrary. It is a pointless exercise.” After further exchanges to no avail, the Defendants effectively acquiesced in the judge’s approach, but then sought and obtained leave to appeal from the Court of Appeal.
Before the Court of Appeal the other side argued that having acquiesced to the High Court judge’s approach, the Defendants could not now seek to challenge it. The Court of Appeal agreed that:
“it is the duty of an advocate to stand up to a judge who is proposing to take an inappropriate course”; and
if a judge states that he is proposing to take a certain course and a party’s advocate does not object to that course, an appeal by that party based on the proposition that the judge ought not to have taken that course would … be doomed to failure”
Nevertheless, in this case the Court’s view was that:
“where a judge makes it clear that he is resolved on taking a certain course and that there is no prospect of a party’s advocate being able to dissuade him from that course, it is hard to see what the party or his advocate can do other than to appeal against the judge’s decision.”
The Court of Appeal were at pains to stress that this decision should not be taken as a precedent authorise challenges by appeal to judicial conduct that was not adequately opposed at first instance. But their view was that, particularly where the Defendants had effectively been deprived of their right to be heard in Open Court (with the implications for procedural fairness and access to justice that this entailed) the appeal should be permitted to succeed.
As such, the case provides an important reminder to all civil advocates to hold your ground when confronted with judges who have already made up their minds, but also to take comfort for the Court of Appeal’s willingness to recognise that “it is important to adopt a realistic approach to what is to be expected of an advocate (or indeed a judge…) in the heat of the moment in court.”