Court Battle – A little local difficulty
Robert Griffiths, QC, tells Frances Gibb why he is philosophical about the outcome of a costly court battle
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The story of a top QC losing his own costly battle in the courts where he makes his livelihood was a media gift. Robert Griffiths, QC, knows that, and accepts it. “It was fair game – even if a rather distorted picture has been given as to the circumstances of the case.”
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Griffiths,one of the biggest names at the bar – as much for his outside activities such as in the world of cricket as his commercial and planning practice – has just lost a long-running fight over a £3.6 million country mansion, Laughton Manor in East Sussex, ending up with a bill of £360,000 plus legal costs – a total of some half million.
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It is six years since the Griffiths’s spotted the Victorian 30-bedroom property and fell for it. They agreed to a prompt exchange with a delayed completion of a year and arranged a survey to take place some months later, nearer the time of completion. It was bad news, showing extensive rising damp and wet and dry rot – “which would have cost me more to put right than the court case cost”, he says.
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He and his wife had paid an agreed £150,000 deposit. The owner, a brickworks tycoon, Alan Hardy, sued – winning a ruling that he could keep the deposit and receive £210,000 in damages.
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This week the QC spoke to The Times about his defeat. The award of damages he says, is the fundamental unfairness at the heart of the case. “It is basic principle that an award of damages is made to compensate for loss. The £210,000 was not the deposit that was forfeited – it was awarded as compensatory damages. But the vendor suffered no loss. [Had he done so through a lower purchase price, Griffiths says he would have paid for it.] It was in effect a windfall to him and the imposition of a financial penalty on the buyer.”
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The key question was – did the vendor know about the damp and rot? In other words, did he misrepresent the state of the house to them? “There are many cases where contracts are rescinded because of misrepresentation,” Griffiths says. The vendor however insisted that he did not know; and his lawyer argued that while a vendor is obliged to inform about known defects, the buyer also accepts the condition of the house at the point of contract.
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Unfortunately for Griffiths, the deputy judge in the Chancery Division backed Mr Hardy. No appeal was possible on the judge’s finding facts, but Griffiths tried to go to the Court of Appeal on a point of law. He was refused. “The courts, especially in the Chancery division, are more concerned with form than substance”, he says. “I accept that certainty and predictability are important considerations in the development of the law. But in my view, substantive fairness in reading a just decision should be at its heart – as Lord Neuberger has said, a fair process is not simply one that is procedurally fair but equally one that should seek to produce “a substantively just decision”. Ironically Griffiths has often spoken on that very issue of judicial fairness. To add insult to injury, the QC also came under fire from the deputy judge Amanda Tipples, who said that he had “found it difficult simply to answer the question put” and “could not resist arguing his case from the witness box”. Griffiths was “disappointed by her gratuitously critical remarks in this regard” but admits: “Giving evidence is very different from advocacy. It is hard to change the habit of a lifetime of being a professional advocate to being a witness of fact. My cross-examination drew me into areas where I mostly resisted, but the judge did not intervene to prevent the questioning.”
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Being a lawyer-litigant is not easy, he adds. Colleagues asked why he fought the case. I have always fought unfairness. I acted pro bono for Darrell Hair in 2007 where the umpire had approached me to act for him, even though he couldn’t afford my fees. I did so because I felt he’d been unfairly treated. If I had just paid up £360,000 for a quiet life, I couldn’t have lived with my conscience, it’d be rather cowardly because I’d be saying to others: you’ve a case here, we can have a good go.”
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Meanwhile, Griffiths has plenty of other things on the go. He is setting up a new set of chambers, Mondial, focusing on commercial law, international trade and arbitration, with a top-heavy list of big name silks. He has been appointed president designate of the newly formed London Chamber of Arbitration and is working with Baroness Scotland of Asthal, the new secretary of the Commonwealth Arbitration Panel and code of practice for Commonwealth transnational contracts. As for cases, he is acting for the French government in the Court of Appeal over a development in Kensington Palace Gardens; and for an investment trust in a compulsory purchase order case over a retail redevelopment in Edinburgh.
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The experience has not left Griffiths “battered and bruised”; nor “disenchanted”: he still has “great confidence” in the legal system. “The decision, in my view, was unfair, but you can get decisions in any system that are right but not fair. I have no sense of grievance at all. I regret having found myself in this situation but I am not obsessed with it. As [the late QC] George Carman said to me when dying of cancer, it is a “little local difficulty”. That is what this is.”
Court Battle, Court Case, Court Settlement
