DW: Yes, this was in the context of the old chestnut question of the law governing an arbitration agreement. So, I argued a case called Shashoua v Sharma before Justice Cook. And as you know, the chestnut is the law governing the agreement to arbitrate. Is it the law of the contract or the law of the matrix contract in which the agreement to arbitrate is usually found? Or is it the law of the seat? I argued in Shashoua v Sharma that it was the law of the seat, and I won.
A few years later, Justice Cook had another case on this point, which I didn’t appear in. He followed his previous decision and held it was the law of the seat. I then appeared in the Court of Appeal, arguing that it should be the law of the contract. The master of the rolls, who was then Lord Neuberger, pointed out that I’d argued the opposite in Shashoua v Sharma and had won, and the judge had followed Shashoua v Sharma in this case, and I was now arguing the contrary. I said that I was absolutely correct. And he said, “Well, do you accept you were wrong?”
I replied, “No, my Lord, although I might be prepared to accept that the judge was wrong to agree with me!”
I tell it as a joke, but that’s a really important point. When barristers or advocates stand up in court, we’re not saying what we think, we’re advocating a position for the client. That’s why we don’t say ‘I think’ or ‘I believe.’ We say ‘I submit’ or ‘we suggest’ – language like that. It’s really important that an advocate is not to be identified personally with the argument they’re making. Otherwise, who in the criminal context is going to defend a person who’s already been convicted of child rapes? And in the commercial context, who’s going to act for some of the less salubrious, let’s say, commercial entities around? Just as a doctor should not be judged by the identity of their patients, so also a lawyer should put their clients’ case fairly and fearlessly and properly. That’s their duty to the court, and I think that’s a very important part of the Rule of Law, which underpins any civilized society.
Source: Barandbench
