Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

19 April 2024



19 APRIL 2024



“Your case depends on your ability to persuade the Tribunal that the Seller’s evidence is true and that it has commercial integrity and the Seller’s market information ticks all the boxes. But you have quite reasonable doubts – so what is your next step? How do you engage with your client? What do you actually say to him/her?”

There is a parallel here with a legal case I handled as a defence solicitor in the mid-1970s. I represented a London Transport bus driver who was charged with stealing a motor car. His account was that he had met a Chap in a pub. They had a drink together. The Chap offered my Client a lift – the Client accepted. Whilst in the car with the Chap driving, a Police Car gave chase for what was then an unclear reason. The Client said the Chap slammed on the brakes, exited the car and made it away. The Client was arrested and charged with TDA – Taking and Driving Away a Motor Vehicle.

If found guilty the Client would lose his job. He was married with three young children. A likeable fellow but now in difficulties. His wife would be very angry and he would find it difficult to get new employment especially if he was sent to prison.

I adopted the forensic approach to the facts when the Client came to my office to prepare for his court appearance. How did you meet the driver? What was his name? Where does he live? Can you describe his appearance? Clothes, beard, moustache, colour? And any stand out physical qualities? Any idea why the police failed to give chase to the fleeing Chap?

My questions were asked in a logical non-confrontational manner but the answers were unconvincing. I thought – but did not say – that there was no Mr Chap and that my Client was in difficulties.

I went quiet allowing the client to reflect on his answers and then, without prompting from me, he looked up and admitted there was no other person. He was the driver and he had stolen the car. He was guilty.

He asked what he should do. I explained it was a decision only he could make but I would summarise his options. He could plead guilty. I would be able to speak on his behalf, explaining how and why the offence occurred, talk about his work situation and his family circumstances and seek to persuade the magistrate to pass a non-custodial sentence.

There was an alternative course – he could decide to contest the case in court. He was unlikely to be found not guilty but the option existed. He would have to use another solicitor because I could not represent him with a Not Guilty plea because he had told me he was guilty. It was for him to choose which way to go. I could represent him and make a plea of mitigation or another solicitor could represent him and fight the case on his behalf.

I was not sitting in judgment on him but I did say that if he decided to plead Not Guilty he needed to be consistent and stick to his defence throughout the case – weak though it was. He could not tell his second lawyer that he was guilty and then ask him to fight the charge on his behalf.

I will let you know what actually happened in the TDA case in the final episode but park it in your mind as we return now to the next episode of the Arbitration case focusing on damages. Remember in the arbitration case you, the Advocate, are representing a client who you believe may be relying on a false contract to establish a lower market figure for the damages he has to pay.




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