by David Cooper
The judge’s clerk interrupted their discussions to inform them that they should come through to the courtroom. Lennie brought up the rear, and noticed that Avery and his team had already taken their places on the right hand side of the court. He struggled to keep his composure at the sight of the baleful glare Karen cast in Avery’s direction. He winced in embarrassment as Avery returned her venomous look with a mocking grin, silently mouthing what Lennie did not doubt for a minute was ‘bitch’. Seconds later, a loud knock at the door announced the entrance of His Honour Judge Tristan Chandler, and everyone stood.
Just over two hours later, Karen felt even more bewildered and confused than she could ever have thought possible. The hearing was over, and the judge had reserved his decision until midday on the following morning, giving no hint of which way he was going to lean. He had asked both counsel to update their skeleton arguments – Lennie quickly translated the term for her as ‘written outlines’ – and to send them to his clerk by email as soon as possible. Avery and his team had quickly left as soon as the judge had risen. Save for a passing farewell to Hopkinson from his opponent, there had been no other discussion.
“Well, I really can’t read this judge at all.” Hopkinson observed. “It could go either way.”
However accurate Hopkinson’s initial remark may have been, it only served to push Karen close to the end of her tether. She had hoped for reassurance and had received none. Amid the semi-academic argument of the hearing, where the occasional cross reference to the facts of the dispute had stood out from the smoke and mirrors, Karen had been left with the impression that Hopkinson’s opponent Grant Collins had enjoyed an easier ride. It had been particularly disturbing for her to see the judge nod benevolently when Collins suggested that the application might have a hidden agenda of ‘strangling a green shoots business at birth’. In marked contrast, when Hopkinson had referred to the concerted joint efforts of the paralegals to defect from Ripple in the same manner, with Avery’s hand clearly guiding them, the judge had wondered out loud if that was really a question for the trial rather than the application.
“What do you know about this judge?” Lennie was still looking for a way to gain an edge, late in the day as it was. “Surely there might be something else to get across in the updated skeleton?”
“Interesting background. He was about to leave the Bar for the bench five years ago, then decided to accept a professorship in international trade and shipping law. Bristol University, if I remember rightly. Finished his tenure there, back in practice for around a year, and suddenly he’s on the bench after all. It wouldn’t surprise me if the last Labour Lord Chancellor tipped him the wink…..”
“I’m sorry, I can’t take any more of this.” Karen’s patience had finally been stretched to breaking point. She sensed that Hopkinson was far too keen to expound on who and what he knew, rather than to try to turn it to her advantage. “There’s obviously nothing else I can say or do now. I’m stuck in limbo, I might lose my case, I’ve got a crucial candidate interview tomorrow morning that I can’t rearrange, and I’m all set for another sleepless night.” She promptly burst into tears. As Lennie did his best to comfort her, Hopkinson gathered up his papers and made his excuses to leave, promising Lennie that he would be back up from London by eleven o’clock on the following morning.
Friday 12 th April
As Karen had predicted, she had spent a deeply troubled night, barely able to sleep. By eleven o’clock that morning, having started the day badly by arriving late, it was plain that she had given a poor account of herself to a prospective new candidate. Instead of signing Ripple’s terms of business straight away and allowing Karen to initiate a search for a new role immediately, he had decided to think about his position further. She was left in little doubt that he would not be returning. It was insult to injury that her interviewee was a partner in a long established regional firm, who had told her that he no longer wanted to be a big fish in a small pool and was keen to join a much bigger practice.
Half an hour later, as Karen was about to leave for court, the phone rang and she could not bring herself to ignore it. The temporary receptionist announced that a candidate by the name of Gemma Gabriel, who had cancelled an interview four weeks earlier, had changed her mind and wanted to reschedule it after all. Cursing inwardly at the fact that Dawn would have made all the arrangements without interrupting her, Karen took the call and fixed an appointment for the following Tuesday. She realised that this was the candidate whom she should have been interviewing on the day after she had broken the news to Avery that she might have to make him redundant.
Yes, you treacherous swine, Karen reflected. All I told you was that I thought I’d have to let you go, I didn’t tell you I’d made a final decision. If only you’d switched your damned tape recorder on thirty seconds earlier.
Late as she was, it made no difference when Karen finally stepped out of the lift at the second floor of the Bull Street court centre. Save for the judge’s clerk, the courtroom was empty. In near panic, she hurried to the conference room where she and her team had based themselves on the previous day, found it occupied by a party of complete strangers, and realised that Lennie and Hopkinson were in the room next door. She burst in and found them huddled together over a typescript. It was plain from the look on Lennie’s face, as he raised his eyes from the pages in front of him, that he had bad news for her.
“I’m sorry, Karen. The application’s been dismissed. I’m afraid we’ve lost.”
“Fucking hell.” Karen slammed her handbag onto the table in reaction to the news that she had feared the most. She had never been averse to forceful language, although her use of the strongest expletives had always been exceptional. On this occasion, her enraged outburst came as a complete shock to Lennie, but Hopkinson kept a straight face and carefully concealed his distaste. “How come you’ve already been told? Don’t we get it read out?”
“It’s all here.” Lennie answered, gesturing to the typescript with a dejected air. “Some judges like saving time this way. I thought that was on the cards when he asked for submissions by email.”
“What did I do wrong, then?” Karen threw the question in Hopkinson’s direction, her anger still plain.
“I don’t think you did anything wrong, my dear. The real problem…”
“Don’t patronise me.” The moment she snapped back at Hopkinson, Karen realised she had overstepped. “Sorry, I shouldn’t have said that. But I’m absolutely incensed. Surely you can realise that? How’s he got away with it?”
“Let me explain.” Hopkinson realised that his previous comment had been misguided, and that his lay client needed to be handled very carefully. “It seems that the judge was troubled by the different versions of events that you and Mr Avery gave about what happened on that Thursday morning. He wasn’t even sure you’d satisfied the test for a serious case to be tried…”
“Even when Avery knew damned well that his own tape recording proves he’s lying?”
Lennie gently touched Karen’s forearm, in the hope of ending the interruptions. He was by now convinced that Hopkinson had not made the right call in deciding that there was no need to serve a short additional statement in Karen’s name addressing that very issue.
“That’s not all, I’m afraid. The judge has gone on to decide that the balance of convenience in this case doesn’t justify Mr Avery being stopped in his tracks when he’s just set up his new business, especially when there’s no candidate exclusivity in the recruitment industry. He’s gone off on some crusade about how oppressive it would be, not just to Mr Avery but to the candidates and the firms too. I have to say that I’m not at all sure that he’s got the law right on those issues, not with the precedents I put to him.”
“Fat lot of good that does me.” Karen angrily replied.
“Any point in appealing?” Lennie spoke up, keen as ever to ensure that no stone was left unturned, but his question was half hearted as he anticipated Hopkinson’s a
nswer.
“Not when you’ll be getting an accelerated trial timetable. If there was ten times the amount of value involved here, we could bend the Court of Appeal’s ear, but it’s still borderline, and I doubt that a bust up between two small employment agencies in Birmingham would survive the initial sift.”
Hopkinson was oblivious to the tactless nature of his comment, but fortunately for him Karen had other matters on her mind, as she frantically thought of how best to steel herself for the inevitable further onslaught on her business. Breaking the uneasy silence, she brought herself back to the immediate issues and threw a further question in Hopkinson’s direction.
“What about those paralegals working in cahoots? And what about his letterhead? Stealing my logo, and slandering me personally over and above?”
“Well, it ticked all the right boxes for seriousness, but the judge says it all needs to be put to the test at trial, and again he’s been fairly lenient to Mr Avery, as far as convenience is concerned. The cost of new stationery, redesigning his website…”
“Utter crap. He’d be able to deal with all that himself in less than half an hour.”
“I hear what you say, but I’m afraid that we’re stuck with this.” There was a knock on the door, and the arrival of the judge’s clerk provided Hopkinson with welcome respite from Karen’s anger. “Let’s go back inside.”
As they returned to take their places inside the courtroom, Karen noticed to her relief that Avery had evidently chosen not to turn up. His place next to the unpleasant looking solicitor sitting at the bench behind Hopkinson’s opponent was now occupied by a rather dishevelled junior. Lennie explained that the older man was indeed Anthony Wagstaff, the solicitor who had made the statement in his own name to present the paralegals’ evidence, and that the younger was probably a trainee who had come along for the experience. Once more a loud knock heralded the judge’s arrival, and everyone stood.
“Please be seated. Mr Collins, Mr Hopkinson, you’ll both have read my judgment and I don’t think I need to add anything to it. The application is dismissed. I have made enquiries as to whether a speedy trial will be achievable before the restrictive covenant expires, and there is a free slot in Judge Banks’ diary on Monday the seventeenth and Tuesday the eighteenth of June. Plenty of time still left on the restraint clause, as at that date, so everything still to play for at trial. Does that suit you both?”
Each of the two barristers stood up in turn and nodded their confirmation.
“Good. You will no doubt have gathered that I only came to be dealing with this application because of Judge Banks’ absence, and I am not due to be sitting in Birmingham again until September, so I will be bowing out as from today once I have made a directions order. As far as the procedural timetable is concerned, which will necessarily be very tight, I am pleased to see that you have both reached a consensus…”
While the judge went through what Karen could only think of as an exercise in nit picking detail, she asked Lennie in an excessively loud stage whisper if this meant she was being stitched up again. Lennie attempted to reassure her that this was not the case, but felt by no means certain that she understood, let alone concurred.
“Anything else before I deal with the costs of the application?”
On the other side of the courtroom, Collins stood up.
“Your Honour, I am instructed to apply for security for costs covering the entire period up to and including the trial, by way of an order for the claimant company to make a deposit of funds in the prescribed manner. I appreciate that the claimant has been given no formal notice of any such application. However, in my submission there is sufficient evidence before you already that this claimant is a company with little substance to it, and if the defendants succeeded at trial it would be a clear injustice to them if their opponent was not good for the costs…”
As Collins continued, Karen caught the occasional mention of eye watering figures, before the judge intervened.
“Mr Collins, however persuasive I may find you, I sense that it would not be proper to allow such an application today without the claimant company having a fair and reasonable chance to respond. In the circumstances I will order…” The judge leaned down and consulted his clerk. “I will order that this action is relisted before Judge Banks at two o’clock on Friday the nineteenth, one week from today, in order to give the claimant a chance to file evidence in opposition to the application. Any objection?”
Neither barrister gave any sign of dissent.
“Splendid. Now, Mr Hopkinson, I have dismissed your client’s application, and I have Mr Collins’ application for costs before me. What do you have to say?”
“Your Honour, I oppose the application for costs on three grounds.” Hopkinson replied. “In the first place, it is undeniable that Mr Avery’s reaction to the claimant’s application for injunctive relief was inexcusably late in the day. If he had reacted to the pre-action correspondence in a proper manner, we may not even have had to make the application, let alone trouble you today. Secondly, it has been made plain that one of the key grounds underpinning Mr Avery’s opposition to the application is not only hotly contested in its own right, but also hotly contested by reference to evidence that Mr Avery has in his own possession, namely his concealed tape recording. Finally, when the action is going to be tried in less than three months’ time…”
Karen shuddered at the uncertainty. She was at least well aware of the legal principles involved, thanks to Lennie’s meticulous explanations ahead of the hearing. She also accepted that it had been her decision alone to take Avery to court, knowing that she might be gambling a substantial part of her inheritance in the process. Looking straight ahead, she saw Hopkinson sit down, with Collins shaking his head as the judge asked him if he wanted to respond.
“Very well. Gentlemen, I shall order that the costs of today’s application are reserved to the trial judge. I think that deals with everything. I will make one last suggestion, though. Clearly you are now looking at a very tight timetable to bring this matter on for trial, but no one in a dispute like this should close their minds to mediation. Just think about it. Good day.”
There was no need for the clerk to command the judge’s audience to stand. Everyone remembered their cue as the judge rose from his seat and left the courtroom. Karen’s short lived sense of relief, realising that she had not been landed with an immediate order to pay the other side’s costs of her failed court application, quickly gave way to another question.
“Lennie, what’s this business about coming back next Friday?”
Mindful of the fact that his opponents were still packing up their papers not far away, Lennie suggested that they stepped outside. Karen was relieved that Hopkinson did not follow them. She listened to Lennie’s hurried explanation of what was meant by ‘security for costs’. It did not take long for her to grasp the point that a claimant company with limited liquid assets could in certain circumstances be ordered to deposit funds in a court account, pending the trial of the action. The idea was to ensure, if justice so dictated, that its opponent was not at risk of losing out on recovering its legal costs altogether in the event that the claim failed and the company then ceased trading.
“Ok, I think I’m on top of that one. Let’s leave it for now. But I’m damned if I’m going to deposit cash just to give him comfort over his costs, when he’s inflicted all this on me. And for Christ’s sake, find me another barrister. I’ve got absolutely no confidence in this old codger Hopkinson at all. From where I was sitting yesterday afternoon, that slimy creep on the other side ran rings round him. And I don’t appreciate being talked down to as if I was some kind of idiot.”
Lennie realised that there was no point in arguing with Karen, and she lost no time in making herself scarce. Returning to her office, with Neeta otherwise engaged and only the temporary receptionist elsewhere on the floor, Karen closed her door behind her. She made one phone call, gratefully accepting an invitation for a takeaway
and a consoling drink with friends that evening. It did not then take long before her emotions overwhelmed her and she dissolved into a flood of uncharacteristic tears for the second time in two days.
* * * * *
“Sure you won’t stay for a quick one, Grant?”
“Thanks, Tony, but I’d better get back down to London. I never expected to be called back up here today anyway. Hopefully that’s the first and last time you and I will be troubled by this one. ”
At the very moment that Karen and Lennie had headed outside, Avery’s barrister Grant Collins had declined Wagstaff’s offer of a celebratory drink, preferring an early train south. Once Collins had made his exit, Wagstaff looked at his watch and turned to his companion.
“Tell me, Jake, where is it that you Bastables people go on Friday lunchtimes? I hear you’re all pub regulars.”
“The Old Joint Stock, on St Philips’ Square. Can I tempt you to come along?”
“Yes, I think you can.” Wagstaff paused. “But let me ring Rufus first.” Hutchings set to the task of gathering their papers together, delighted that his trip to court as a spectator was going to end up in a celebration, and Wagstaff stepped outside the courtroom to make his call.
“Rufus, we won. Just as we expected. Application dismissed, timetable fixed for a speedy trial. If that doesn’t break her, I don’t know what will.”
“Great news.” They continued to discuss the morning’s events until Squire remembered that he had sent Hutchings along for the experience. “How did Jake like his morning out?”