Tough Call

Tough Call

We all want the best outcome in court, but judgment can just as easily go against you.

I was involved in a motorcycle collision, which finished up in court, I had solicitors. The case was that I was knocked off my motorbike as I was filtering past cars.

One car turned right into an industrial estate and knocked me off my bike, I broke my leg in the collision, and it is still not right.

Anyway, I was sued by the other driver. They told me to offer 50/50 blame, which I reluctantly did. The car driver managed to get two witnesses to say I was filtering far too fast, which is bullshit, and my barrister, who looked about 12, did not call these witnesses out for what they were… liars.

The judge found I was 80% to blame, can I sue my solicitors or my barrister? Or should I appeal against the biased judge? (My solicitors are not prepared to appeal on a ‘no win, no fee’ basis and have told me I need to front up close to £2,000 to send my child barrister off to the High Court for permission to appeal – not even an appeal.

Answer

The short answer is none of the above. When a case goes before a Judge, it is the judge’s job to hear the evidence and make ‘findings of fact’. Or in English, what happened. He was not there. He does not know what happened, so he relies on people who were there, that is the witnesses, you and the other car driver to say what they saw. He then makes a finding, it might be wrong. Judges are not perfect and they rely on imperfect witnesses, but the judge did his job.

Your solicitors and your counsel (who I have checked and he is indeed young and a little bit baby-faced, but he has been qualified for five years) took your case to trial. The judge accepted the evidence of two witnesses that you were travelling on the outside of traffic too fast, and he is allowed to exercise his wide discretion. So long as he does it properly then you cannot successfully appeal, it is for this reason your solicitors are not prepared to put your appeal on a no win, no fee basis. Possibly you might get leave to appeal, but I think even this is doubtful, and I think your chances of getting home on a full appeal are about nil.

As to your barrister calling the witnesses ‘liars’- something you think he should have done. Ail professional advocates in court have professional conduct rules which forbid them from alleging dishonesty against a witness unless the advocate has proper grounds for suggesting it.

He can suggest a mistake, over statement, over estimation of your speed, or the witness is just plain wrong, or he could not have seen what he said he saw, but he cannot call a witness a liar because you think the witness is a liar. Apart from anything else, the judge will tear the barrister’s head off and spit down the hole.

So you went to trial and did less well than you had hoped. It is sad, but it is the nature of a trial. One of you was going to end up unhappy, I am saddened that you have an injury which is still not right, but you are going to have to put this down to experience. The judgment was based an what the judge found and his division of blame was definitely on the tough side for you, but it falls within his range of lawful decisions.

I acknowledge when you contacted me you gave me a number of cases which you thought the court should have taken into account. The cases which you mention, all of which are very familiar to me, are not a huge amount of help to you. I do not blame you for doing your own research into the law, and the authorities that you have discovered are not irrelevant authorities.

They all concern vehicles turning across the path of filtering motorcyclists and the usual rule is that, absent inappropriate speed from the motorcyclist most concluded at 50/50. It does not mean, however, that the judge must find 50/50.

Your solicitors made a 50/50 offer. The defendants chose to reject it, and it turns out that they were right to reject it. Your solicitors have done nothing wrong, and neither has your barrister. I think you had a tough day in court, but I am afraid tough days in court happen.

You would be wasting your money and the court’s time in seeking leave to appeal. No appeal court win overturn this decision which, to use the language of the law, ‘falls well within the wide ambit of discretion allowed to the judge’.

Andrew Dalton

Fast Bikes Magazine – October 2019

Posted by Andrew Dalton. Last modified: September 21, 2020 at 5:11 pm

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.
Disclaimer: The legal advice and statements contained within this/these articles is correct at the time of printing. If you are seeking legal advice after a motorbike accident please contact us to speak directly with one of our lawyers.

Comments

  1. Tony WilsonJuly 31, 2020

    Excuse me Andrew, but have I not seen you argue in the past that the driver turning right had a duty of care to ensure he was not being overtaken?
    Just curious.
    Tony Wilson.

  2. Carl JonesJuly 31, 2020

    I once got knocked off my bike as I was filtering in Matlock.
    I was lucky. I had an insurance accident assessor in the car behind, who sketched out where I ended up and where the other car was and gave me his phone number if I needed to contact him. I had about two pounds worth of damage to my bike, although I “milked” it when I informed the driver of the car a few days later that it came to just under five pounds!
    I was getting twelve pounds a week wages at the time so I was happy to settle out of court!

  3. 1st all if you had CCTV /dash cam none this would.have happened as you seen what the footage said you cant argue with that .
    2an.goong to court is very bad idea as I found out to my cost barristers dont give a shite to the facts ONLY they get paid stupid amounts. . They are only interested is a quick win or that the insurance comp they are representing doesn’t pay out much EVEN IF its against there own cliant .

  4. Andrew DaltonAugust 3, 2020

    Thanks for the comments gentlemen. Tony, as to your proposition, the driver does indeed have a duty to check he is not being overtaken which is why he was found partially to blame. However this type of case is on a spectrum – the vast majority come out an equal split of blame but on this one the Judge clearly found this rider’s speed was a factor which militated against the rider. Carl, unfortunately the days of the two quid repair are long behind us. Finally Iain, I suspect the barrister did give the case his best shot. Your barrister may not have done in your case but I am against barristers week in and week out in court and they do fight cases hard. For what it is worth, I too would have made the same 50/50 offer that these solicitors did – and punched on to court. You take your chances in court. Another judge, a different day and a 50/50 would have been the outcome. turning to on board cameras, these do not prove anyone’s case. They show what happened from a fairly narrow field of view and if the footage showed, say, the motorcyclist went for an overtake at 60 in a 30, then the reality is the judge may not even have given 20%. The correspondent is and was no fool. He had a number of authorities which support the proposition of an equal split of blame – I think his anger was that his barrister would not put to the witnesses that they were lying but this is something an advocate, whether solicitor or barrister, cannot do unless there is evidence of lying – and it is something which immediately raises the hackles of a judge because the witnesses are “civilians” coming to court as their civil duty. To be accused of perjury is a very serious accusation. Witnesses get travel and maybe lost wages and being cross examined in an unpleasant experience. They said what they saw. An advocate can suggest mistake, misconception, playing to a stereotype (ie You thought he was going too fast because he was on a motorcycle), lack of skill at determining speed or over estimation but lying-No. You need to have something very solid in your locker to put lying to a witness. The only time I have seen it done successfully was a witness being asked “Are you sure you had not met or knew this person before the accident?” Answer “no” – but you were Facebook friends for 4 years prior to this accident comes the supplemental question. Even then the barrister did not call the witness a liar but let the judge draw his own conclusions. However Iain, where I am with you is that where an insurer represents both parties and the injured motorcyclist goes with an insurance appointed solicitor, I am far from convinced that the conflict of interest is always or even ever properly dealt with. I have also seen insurers where they insure both parties try to bind the motorcyclist to an internal insurance deal. If that is what happened to you then you have my complete sympathy.

  5. Tony WilsonAugust 7, 2020

    Thanks, Andrew, for your explanation. Not cut and dried as I naively thought!
    Cheers
    Tony

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"The Fast Bikes Legal Clinic is compiled by Andrew Dalton, and his bike riding barristers and solicitors at White Dalton Motorcycle Solicitors.

They deal with personal injury claims and their sister company, Motor Defence Solicitors, deals with all the motoring offences. They know everything about bike law, Andrew is a former London motorbike courier turned barrister and solicitor, and we know he's good.

All the White Dalton lawyers are qualified barristers, or solicitors, or both - and they all have full bike licences, too. They don't act for insurance companies or the prosecution.

They are Britain's most specialist law practice, and if they don't know the answer to your question, there probably isn't one. Don't rely on the advice from your insurance appointed solicitor, get proper independent advice."

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