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Joshua Rozenberg
Monday 15th February 2010
Do Commercial Colossi Lack Common Sense?

Sir Alan Ward, always the most charming and entertaining of appeal judges, is 72 today and seems to be getting demob happy. How else can one explain the glorious flights of rhetoric with which he concluded a dissenting judgment this morning?

There is little point in expanding upon these reasons for I am outnumbered, nay outgunned, by the commercial colossi seated either side of me. I prefer the instincts of the youthful Mr Justice Stanley Burnton before he became corrupted by the arid atmosphere of this court. It goes to prove what every good old-fashioned county court judge knows: the higher you go, the less the essential oxygen of common sense is available to you. So I am unrepentant. With, of course, great respect to my Lords, I dissent.

It was certainly a rather puncher peroration than that delivered by Lord Justice Longmore:

I would therefore allow this appeal. That I think, means that we should so declare and should also order that sub-sub-sub paragraphs 18(1)(i)(3) and (4) of the re-re-amended defence and counterclaim should be struck out. 

One of the two commercial judges to whom Lord Justice Ward was referring was the very same Stanley Burnton, promoted to the Court of Appeal after giving the judgment in 2002 which he and Lord Justice Longmore distinguished in the case before the court.

That, incidentally, was about whether evidence of “without prejudice” communications and discussions could be given if there was a dispute about the interpretation of a written settlement agreement.

Update: Lord Justice Ward assures me that he has no plans to retire. 

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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