In a characteristically incisive flash of inspiration, Benet Hytner QC (father of Sir Nicholas, and my ante-pre-penultimate head of chambers), formulated the now famous test of the ‘fair minded and informed observer’.
Those with criminal practices will immediately recognise this “relative newcomer among the select group of personalities who inhabit our legal village” – as a resident from the criminal appeal of R v Gough (1993) in which Lord Goff of Chieveley was concerned with the issue of bias concerning a jurer. This particular villager grew up to be the one ‘to be called upon when a problem arises that needs to be solved objectively’; and yes, it was Lord Hope of Craigshead who, in Helow v Sec of State for the Home Department so Christened her and went on to define her perfectly.
In A v B & X (2011) EWHC 2345 on 15 September 2011, Flaux J exhumed the FMIO to deal with an important matter that affects us as practicing barristers. The case concerned a challenge to the appointment of a barrister arbitrator who had historically accepted unrelated instructions as an advocate from one of the two firms of solicitors involved in the arbitration, and where a previously ‘stayed’ case in which he was instructed by them, revived before he delivered his award. A host of arguments were raised relating to the possibility of ‘unconscious bias’ and conflict of interest. Fortunately for the arbitrator, Flaux J held that the FMIO would have seen no problem – counsel acts for the lay parties, not for the solicitors, and in any event there had been a firewall between the two matters.
A v B & X did highlight the need for counsel, through their clerks, to check with care for potential conflicts of interest.
However, a wider issue is raised by the lurking presence of our FMIO. How do we as individual barristers measure up against her; indeed should we be thus measured?
There was a time when the principal quality of a good barrister was ‘someone who simply stood up for their client and fought the case’. A quick look through the dinosaur publication ‘Legal 500’… (or is it now Legal 50,000) would identify our heroes – “good fighter”, “doughty opponent”, “a determined advocate”. Now, I sense that all of that is changing.
So often, the blogger is finding the expectation of the bench is to advocate less and, with the skills of a FMIO, to advise and reposition more. Ours is the task of changing the perceptions and expectations of our clients – bringing them right to the middle ground in order to gain any degree of judicial sympathy and attention. Outside positions are not seen as having real merit, and we are invited not to go, or stay there.
With ‘mediation and compromise’ being encouraged, getting quickly to the middle ground is becoming more and more important. Finding our way there requires special skill generally not supported in either our clients’ position statements or our instructions. The courts say ‘no’ to the fight – red meat is off the menu, and easily digestible, shared fast food is the order of the day.
As an advocate of the ‘old school’, I miss the cut and thrust of conflict. Maybe I should return to criminal defence work. But in the family, civil and employment fields polemics are best avoided. We are to become ‘fair minded and informed observers’, who guide our clients in debate rather than conflict.
In his superb article ‘Neutrality is an Unattainable Idea and Should be Abandoned’, Aled Davies raises the impossibility of avoiding becoming part of what we observe. To use Carl Jung‘s terminology, we put that which does not resonate with us into ‘our shadow side’ – a place to which we transfer unwanted thoughts and feelings, where the true merit of those ideas is not properly explored. Thus we loose the objectivity of a fair minded observer, and become part of the problem.
Yesterday’s case was an excellent example. The parties were polarised from the outset, by their history, personality and events. That polemic was re-enforced by their solicitors’ conduct of their cases – on specific instructions – to fuel the fire. As counsel new to the case, we were already infected by the conflict, with large stores of unwanted feelings hidden away in our ‘shadow side’.
In the event, we sat, we talked, and explored – road testing ideas, freeing ourselves and our respective clients from unattainable positions. But the hardest part was letting go of our own particular prejudices forged both on the pleadings, and the anvil of life experience. The turning point was when we decided to meet together with each other’s clients. How quickly did the shadows resolve? No battle, no drama, a little compromise – and contented clients who departed to drink coffee together; leaving us to surf on their wave of thanks.