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Court of Appeal - be prepared for the unpredictable

A famous lawyer and keen equestrian eventer once asked a fellow jockey, before the off at a point to point, whether he had ever been in the Court of Appeal. Anticipating the white-knuckle ride over the jumps, with an uncertain outcome and a real risk of personal injury was, he felt, the same as waiting to appear in the appellate court.

My pupil master, now a senior QC and wellknown construction arbitrator, was of the same view. Once, when pacing up and down outside Court 64, waiting to be called on, he observed that once you got going it was usually all right but that the waiting was the worst thing. So what is all the fuss about?

For a start, in the Court of Appeal there are three judges in place of the usual one, and whereas your average high court or county court judge has a good idea of what is going on, Lord Justices of Appeal are fearsomely bright else they would not be there in the first place.

Secondly, they have usually read all the written material in advance and have often made up their minds as to what the answer is before you've so much as unpacked your laptop. It is not uncommon for counsel to stand up to explain why the appellants take issue with the original judgment, only to be told to sit down.

Instead the attention of three highly tuned forensic minds turn to the hapless respondents' barrister who is asked: 'Can you explain why this judgment is right?'

Thirdly, there is no saying what they will be like. Traditionally they are a pretty grumpy lot. Increasingly now they are at least polite. In the appeal in the case of West Faulkner Associates v London Borough of Newham , the architects were appealing against the judge's finding that they ought to have known what 'proceed regularly and diligently' meant in clause 25 of the JCT standard form.

The judge found that it ought to have been clear to the architects that the contractors were in breach of their obligation to get on with it and the architects ought, therefore, to have issued a certificate to such, effect and if the architects were in any doubt they ought to have taken legal advice on the point.

Instead, the architects had held back, believing that as the issue of such a certificate would set the ball rolling for determining the contract, it should not be done lightly. More fundamentally, they believed that they had no grounds to issue the certificate since although the contractor's progress was far from diligent, they were at least on site regularly.

When their appeal was heard, their counsel was given a particularly hard time, even though he was a senior construction QC. This is apparent from the judgment which dismisses each of the arguments raised on behalf of the architects as either 'impossible' or 'unarguable', or both.

The truth is, as a colleague once observed, they can be the most charming tribunal all the time you are on top of the argument and talking sense. The minute you lose the plot they come down on you like a ton of bricks. I was there recently, on one of those Chambers beanfeasts, which involves five parties and eight barristers to argue one point of law.

Don't get me wrong - it was a novel and tricky point of law and the only reason the court was able to assimilate the argument from five different view points, in a day and a half, was because all parties had produced comprehensive written arguments in advance.

So was it really that bad? On the contrary, the three appellate judges were all sweetness and patience. We could only conclude that they were as mystified as we were as to the answer. But, of course, we did not know that before we went in.

And as I stood between two leading counsel, waiting to be called in, and watched them swallow, stiffen and take a deep breath, I was tempted to ask: 'Have you ever taken part in a point to point?'

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