Dyson – No loss of Power

Lord Dyson

I was really pleased to see my old friend John Dyson – Lord Dyson as he now is – as one of the judges of the UK Supreme Court who has granted leave to appeal to Julian Assange against his extradition from the UK to Sweden.

For the early part of his career, John Dyson was, like me, a specialist in what is now known as the Technology and Construction Court, and so I first came across him when I was just a newly-qualified assistant solicitor at Masons, in the late 1970s.  In fact, he was junior counsel on the first really substantial case that I worked on, and I was given the task of preparing the instructions to counsel from which he then drafted the Statement of Case.  I had never done this before, but did my best.  Before the proceedings were filed, there was a big consultation to evaluate the case and review the draft claim.  Everyone was there: Patrick Garland QC, his junior John Dyson, John Bishop (who was then my boss), the managing director of the client building firm, and other members of the board of directors. Before Patrick Garland started dispensing his wisdom, John Dyson made a general announcement to the room: that the brief was the most helpful set of instructions he had ever had from solicitors on a major case, and that had been a major factor in formulating the case. I was rather chuffed of course – he must have known that I was a “new bug” and it was kind of him to be encouraging in this way.  There were real difficulties with that case but, with John Dyson’s help, we dug away hard at a novel but profitable seam (recovery of gross margin via then the-untested Hudson Formula) and ended up with a very satisfactory result for the clients.

John Dyson was a barrister and I was a solicitor, but we nevertheless crossed swords directly from time to time. By the mid 1980s I had set up my own firm and was starting to acquire a reputation for taking on and winning difficult cases.  One subcontractor came to me with a substantial problem: he was owed a fair bit of money by a main contractor who was refusing to pay, and who was relying on the weasel words in the contract which purported to give the main contractor pretty much carte blanche as to whether to pay or not. In this case, the contractor said “not” because he himself was losing money on the project, probably as a result of the mismanagement of his own site people. This was not my man’s fault, but he told me that unless he got this money quickly, he would certainly go bust.  So I issued proceedings on his behalf (knowing of course that unless we won, and won soon, I would never get paid my fee either). We had to go for summary judgment, because that was the only procedural route that would be fast enough. But the problem was that on summary judgment applications, all issues that could fairly be argued either way were presumed in favour of the defendant, and the question of how these weasel words in the contract should be construed was just such a point – arguable either way. I instructed a barrister, who came up with the bright idea of coupling the summary judgement application with an application for the determination of a preliminary issue on the contract interpretation point.  That way, we could get the court to decide the contract interpretation point on balance of probabilities test – which we thought we might be able to do – and then the way would be open for the court to give us summary judgment for the money claimed. It was a plan, and the only plan that could save my client’s business. But on the Friday before the Monday fixed for the hearing, our barrister rang up to say that he had not been able to get to read the papers, that he was off to Paris for the weekend for an ICC arbitration hearing, and so he could not appear for after all.  He was returning the brief.

That was a problem; we could not afford the delay of an adjournment in order to find another barrister. My client asked if I could be his advocate in court. This was also a problem; the case was in the High Court, and solicitors did not have rights of audience in the High Court. But there was a glimmer of light: although preliminary issues were always taken in open court (and hence without any right of audience for me) there seemed to be no absolute rule about this, and we could ask the court to hear the whole application in chambers (in which case I would have a right of audience).  So I rang John Dyson QC (as then was) as the barrister for the main contractor, and told him what we were proposing.  He said, “Humph” or something else equally non-committal.

Come Monday morning, we arrived at court. The judge was Judge Lewis Hawser, who was both shrewd and amiable, which are characteristics that are not always conjoined on the bench. I was wearing a suit, which was appropriate for a hearing in chambers.  For the defence, John Dyson was decked out in full robes, tabs and wig, backed by junior counsel, a team of solicitors and clients scowling like the bad people in an episode of Blackadder. I was there with no more that my small articled clerk and a very worried-looking client.  The judge knew something was in the wind, for he called John and me into his private chambers before the case started. He was robed up too.

“Well, Robert” he said, “What is all this about? Are you here without counsel?” I explained the problem, and my suggested solution.  The judge then asked, “John? What do you say to Robert’s suggestion?”

“I have had my junior do some research over the weekend”, he said. “Robert is right that there is no binding authority that requires you to hear preliminary issues in open court. But it is invariable practice, and it would be undesirable to depart from the practice.  The case must proceed in open court”.  At this point, I was starting to form the view that John Dyson might be a bit of a shit, especially since the barrister who had let us down at the last moment was a member of his own chambers.  But the harshness of this view was promptly mollified, as John Dyson went on:

“However, I have also had my junior research the question of rights of audience, and whilst solicitors do not ordinarily have a right of audience in this court, there is an exception in case of emergency. And in these circumstances, I acknowledge that this is indeed a case of emergency”. The judge turned to me and smiled, and asked if I had any objection to proceeding in open court on that basis?  I said no, as long as he was prepared to adjourn for 20 minutes while my articled clerk ran back to my office to fetch me a robe (she could not do it any faster than that, because she was wearing high heels and besides, had quite short legs.  Shapely, but short). And so it was.

John Dyson was not merely being generous, of course. He was from that old school that believed barristers to be inherently better lawyers than solicitors (in the past, of course, there was an element of truth in this, but the world was changing), and presumably calculated that it would be better for his clients to fight against me – a mere solicitor – that to have us turn up on another day armed with leading counsel.

So, we argued the case out for 2 days. The judge then gave his judgment on the spot; happily for my client, we won every penny we had claimed. John’s reaction afterwards in the robbing room was illuminating: “You are not really a solicitor, Robert, at all. You should be at the bar”. He had not been worsted by a solicitor, but by a barrister flying under false colours.  My client did not go bust, and enjoyed a prosperous and successful business for many years after that, which was good, because my client was a really nice guy.

In the 1990s, John Dyson was appointed to the High Court bench himself, and because of his background, was soon presiding over the specialist Technology and Construction Court as well as taking more general cases.  He was rather good at it, I thought.  At one point, following to Woolf reforms, it was necessary to prepare a Pre-Action Protocol, in order to prescribe what pre-action steps should be taken before launching into litigation. Rather wisely, I thought, he entrusted the task of preparing a first draft – not the Technology and Construction Bar Association – but to the Technology and Construction Solicitors Association, of which I was then the chairman.  TeCSA was then – and still is – a very effective group – lawyers who fight hard against each other on behalf of their clients come together in a spirit of real cooperation and indeed friendship to make sensible suggestions about how to reduce the burden of litigation for our clients.  So TeCSA formed a small sub-group, and we came up with a draft containing the somewhat novel suggestion that, not only should the parties exchange letters setting out their views on what they were disputing and why, but also that they should meet – with lawyers and clients – and talk about the likely cost and timescale of the various dispute resolution systems available (litigation, mediation, expert determination etc) and in light of those estimates, try to agree on a sensible and proportionate way of resolving the dispute.  But some stakeholders (in particular the insurers) hated the idea, and so Mr Justice Dyson (as he then was) called a meeting of all the relevant industry and legal groups. When put under the spotlight, the opponents of the meeting idea really could not articulate any good reason why these meetings should not take place. “Well” said Dyson. “I think that what this process has demonstrated is that there is often good reason for a meeting to get to the bottom of these sorts of issues. I think the requirement for a pre-action meeting should stay in.”  And so it was.

FPSO

But his aversion to solicitors having a voice in court did not disappear. At about the same time, I was acting for a South American client in a claim for some tens of millions of pounds arising out of the conversion of an FPSO (an FPSO is a technically complex system for extracting and temporarily storing oil offshore using a converted tanker instead of a fixed platform). As the senior judge, John Dyson took the first hearing.  I was representing the contractor, and wanted the hearing to be in a particular courtroom, which had the technical facilities available for me to present these technical complexities; and arrangements were made for this with the court staff.  At the last moment, however, John Dyson has the proceedings moved back into a different, smaller and less suitable courtroom, being heard loudly exclaiming to his staff backstage, “I’m not having any bloody solicitor tell me where to sit”.  When the hearing eventually started, he refused point blank to listen to any explanation from me about what the case concerned from a technical point of view, and was evidently very unhappy about being addressed by a solicitor instead of a barrister. My clients, of course, were appalled – it did nothing to enhance their confidence in the English justice system, and although we eventually ended up with a decent result in the case, it was not thanks to this outburst.

In other cases, his judgments have done very useful things.  In particular, his judgment in Macob v Morrison has set the tone for the enforcement of adjudicators’ decisions for over a decade now, and has been felt throughout the common law world. One can only guess how much money has been saved in legal costs as a direct result of the firmness of that judgment: it is certainly a very large sum.

It is a fair way from construction and engineering cases to extradition for alleged rape, but I was pleased to see that leave to appeal has been granted in this case. For too much of my career in the law, the House of Lords (as it was before changing its name to the Supreme Court) was appallingly ineffective. It is supposed to be there to fix problems, but for years was overshadowed by the Court of Appeal, led by Lord Denning, as the powerhouse of legal reform.  All too often, instead of making law, it said, “Oh, this is tricky: we should leave this one for parliament to fix”.

I think many of us feel profound unease about the new European Arrest Warrant system.  If it means that any prosecutor in Europe can whistle for any Commonwealth citizen who happens to be in the UK to be extradited for something that would not warrant prosecution in the UK, then we would feel much happier if the courts would set some sensible limits on the process. Quite apart from the facts of the case in question (a separate post on that, perhaps) if the rossers in Romania or Bulgaria want to bang someone up because they assert there has been a breach of their laws, one hopes that the UK courts would think very carefully before ordering extradition.

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