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