A Catalogue Description

A CATALOGUE DESCRIPTION

(Wellington 1969)

   I.FACTS OF THE CASE

 

            In those days – the late 1960ies –  my office was on the first floor of the Victoria University of Wellington’s  19^th century building. To get to it from the lobby, I had to enter the   corridor leading to the library and pass the guard who asked you not to take your bag into the library. In my case, this rule did not apply.

I suspected that my office  used to be the librarian’s room. Still, for the last ten years it had been the office of the Head of the English and New Zealand Law Department. I got its use when I was constituted a professor at Wellington’s University.

            The spacious room was well designed. The window had a  breathtaking harbour view. I could enjoy it from my desk. A few steps led to the main reading room of the  law library. Most of the books I used were stacked on shelves on the  mezzanine terraces. These terraces had been constructed by the turn of the 20^th century. Originally, the architect installed   movable library ladders, which used to go from the ground to the high ceiling. They had been replaced by  the current terraces   after one of my predecessors had had a bad fall.  

On this specific morning – early in 1969 – I walked to the library in order to get a book on the sale of goods. I needed it to prepare a reading list for classes to be conducted in the coming teaching semester. To my surprise, the book was not in its place. Was it possible that any one of our students would want to read it during the recess?

As I gazed  down, my eye caught Robert McBride, one of my professorial colleagues, who appeared to be the only other person in the spacious reading room. Noting my glance, he smiled at me warmly. “Are you, by any chance, looking for Benjamin’s Sale of Goods?”

“As a matter of fact I am. It’s out of date but still a good source for finding authorities.”

“I’ll bring it to your office when I’m finished with it. It won’t need it for long.”

Robert came over some 15 minutes later. Noting my quizzical expression, he explained that he had consulted the book on a point arising in a respect of a  brief sent to him by a local law firm. As the book did not provide an answer, he wanted to gauge my reaction. Was a horse a ‘chattel’ as defined in our antiquated Sale of Goods Act? Following some prompting on my part, and some hesitations on his, he narrated to me the facts of the case.

His client, one Jack Smith, who was an amateur horse breeder, spotted an interesting item listed in the catalogue of  a then forthcoming auction. The catalogue listed as a breeding mare, with a distinguished lineage of racing horses, some five years old. Jack Smith did not have the time needed inspect the items put up for sale. Still, he flew to Auckland to attend the auction. When the horse  came up for sale the auctioneer, Douglas Brown, waved a document and advised he had a certificate attesting the mare was ‘with fowl’. Jack Smith entered the ring and had the mare knocked down to him. When he took possession, he realised the she  was not carrying. He had paid twice the amount she was worth in this condition.

“Why do you want to proceed under the Sale of Goods Act, Robert?”

“The ‘chattel’ was not as described! We have a cause of action if the Act applies.”

“Any ‘thing’ put up for sale is a chattel within the meaning of the Act. But let us see the catalogue.”

 

The catalogue did not mention anything about the mare being with fowl. Worse still, it included the ordinary exemption clause, found in most auction catalogued and regarded as a common, or boiler-plate clause, to the effect that the sales house did not warrant the accuracy of any description. Would-be participants were invited to inspect the items and to form their own opinion respecting them. And this  clause was printed in large bold letters.

“Don’t tell me Jack Smith did not notice this clause, Robert. No judge will believe him!”

“But Douglas Brown advised the audience that the certificate was to ‘augment’ the catalogue description.”

“How much did Jack Smith pay for the bloody horse?”

“Mare – Peter! He paid $3000 for it.”

I felt a shock. In those golden days such an amount would enable you to acquire  a sound new car. My own Hillman Hunter had cost me considerably less than that.

            “Robert, how can any man spend such a sum without having a look at the goods?”

            “Jack Smith relied on the good name of the sales house. He has known them for years!”

I understood the point made. I had bid substantial amounts on rare books in reliance on entries in catalogues and advertisements. Naturally, I had had my disappointments. The sums, though, were minute in comparison to the price paid by Jack Smith.

 “What does the sales house say on this point?”

“They deny that any statement had been made! So does Douglas Brown, who – as I told you – acted as auctioneer that day.”

“Do you, in the very least, have a copy of the certificate?”

“No!”

“Any witnesses?”

“Nobody is prepared to come forward, especially the under bidders!”

“So – all in all – it is your client’s word against Douglas Brown’s.”

“True.”

“Best of luck then.”

“How would you rank our chances?”

“It all turns on a point of fact. Did Douglas Brown make any statement. If you establish the point, then he made a misrepresentation. You do not need the sale of Goods Act! It is a simple case of a negligent misrepresentation. But would the judge take your Jack Smith’s word?”

“Would you?”

“I’ll have to see Jack Smith and Douglas Brown on the witness stand. For God’s sake, Robert, cover your own back!”

“I shall in my acceptance of the instructions.”

 

II.THE PLEADINGS

 

Some two months later, Robert consulted me on the draft of his statement of claim, that is, the document in which the party that brings the action – the plaintiff or claimant – narrates his case.  To my dismay, Robert had decided to proceed under both counts. He proposed to allege that the sales house had breached a duty imposed  under the Sale of Goods Act. In other words, the auctioneers had given an incorrect  description of the ‘goods’. As an alternative, Robert alleged that the statement respecting the mare’s condition, namely her being with fowl, constituted a negligent misrepresentation on the part of Douglas brown and that the sale house was liable together with him.

“But Robert: you have not dealt with the exemption clause, which exonerates the sales house from any responsibility of the condition of the items listed in the catalogue!”

“If the sales house denies that a statement had been made, I shall deal with the point in the reply.”

“They are bound to deny any responsibility for any statement! So why not deal with the problem at the outset?!”

Our latest exchange dealt with a complex point of procedure. If the person sued – the defendant – raised a point that required to be dealt with by the plaintiff, the latter was entitled to file a ‘reply’. Such tactics were bound to lead to delays and to amendments of the pleading (the statement of claim and the defence). Years earlier, my own pupil master taught me to meet hurdles at the outset. It was simple minded to expect your opponent to overlook them. Still, Robert was entitled to give preference to tactics he considered appropriate.

            “There is yet another difficulty, Robert. Suppose that the sales house simply claims that the item was as described in the catalogue. That is the best course available to them. So why not leave the antiquated Sale of Goods Act out. How is it going to support you?”

            “But if I do, the sales house can refer to it. So why not rely on it at the start?”

            “Because they may then also refer to the exemption clause. You are preparing the case for the ‘other party.”

            “I disagree!”

            I gave Robert a searching look. By now, I was convinced he had made a hasty commitment when the matter was discussed with him informally. Robert was impetuous and, occasionally, plain careless. Still, he had to protect himself.

            For a few minutes I stared at the breath-taking view through the window of my office. Had any sailor been foolhardy enough to try to steer his way through the numerous cliffs without studying his maps carefully? But then, who was in a position to tell a skipper how to navigate his ship?

            “Well, it’s all up to you, Robert.” I told him at long last. “But consider another point. Is it possible that we are dealing with a mistake – a mistake on Jack Smith’s part such as his failing to understand a statement made by Douglas Brown?”

            “But an action based on a mistake would not help us. The contract would then be void. Jack Smith will have to return the horse and take his money back.”

            “Correct. But then, what does he want?”

            “He wants to have the bid reduced to $1,500 and keep the horse. He says he is prepared the risk involved in using the mare for breeding. But, if he had made a bid on that basis, he would have stopped at $1,500. He says his loss is about $1,500 and requires an award of damages of such an amount.”

            “So, he wants to have his ‘cake’ and … pay less for it than what he bid? H’m.”

            “He regards it a matter of principle!”

“Best of luck to him then. But, Robert, have you covered your back?”

            “In my acceptance of the instructions, I told Jack Smith’s solicitors that  my opinion was based of the facts as stated by the client. Surely, that is good enough!”

            “I would have been inclined to refer to the alleged the certificate. How on earth does Jack Smith  explain that he did not ask to see it?”

            “He says he trusted the word of the sales house and their auctioneer (Douglas Brown). I told you so before.”

            “You did. Still, I am perplexed. To me $3000 is a lot of money.”

            “Jack Smith is a wealthy man and – you’ll be surprised to know – horse breeding is but one of his  hobbies. He is an industrialist.”

            “Then he ought to know how to take care of himself. Try to get supportive evidence, Robert.”

            “The solicitors are doing their best.”

Robert was referring to  a well-known fact. Officially, New Zealand had  rejected the English demarcation between barristers, who argue  cases before the court on the instructions given to them in the brief,  and solicitors, who deal with the client and have direct communications with him. If the matter had to go to court, the solicitors searched for right barrister and prepared the brief (or instructions) given to him. In New Zealand all lawyers had the right to appear before a court. They could act both as barristers and solicitors.

I reality, though, some New Zealand lawyers retained the role of counsel, or, effectively, acted only as barristers. Robert was one of them. The evidence would have to be obtained by the solicitors. Robert was required to keep his distance from the client and the witnesses. He appeared before the court with ammunition provided by the solicitors. Naturally, in many cases he had to ask them for further evidence or better ammunition, such as documents. Still, by and large he had no direct communications with witnesses and their records.

 

III.THE AUCTIONEERS’ DEFENCE

 

For a while, I heard no more about the case and, actually, it skipped my mind. Eventually, I recalled it when I walked up the stairs leading to the library mezzanine. Out of sheer curiosity I rang Robert up when I was back in my room. To my surprise, he had not changed his statement of claim. Further, he had no raised a count based on a mistake.

“But, Robert, haven’t you acquired a copy of the  certificate about the mare?”

“Our solicitors did not manage to get it. Actually, the  sale house’s defence is sparse. Their solicitors have denied the claims made by us. Do you want to see what  they have submitted?”

   It was clear from the pleading that the auctioneers  decided to treat the case as turning on the facts. They denied that the mare “was not as described in the catalogue”, added that the plaintiff was, in any event, not entitled to rely on it and, as expected, denied that any certificate at variance with the catalogue description had been produced. Robert had not filed a reply. To my mind the issues had crystallised in an unfavourable manner. Robert would have to establish the existence of the certificate. How was he going to do that?

“The Court is bound to believe my client. Jack Smith is a  respectable person.”

“But how about the sales house. You told me they were highly reputable.”

“But this time they erred! The auctioneer they used  - Douglas brown – is not a horse breeder and knows nothing about them!”

Robert was not keen to engage is an argument. So, I decided to keep my silence. But I had a bad feeling.

            A further glance  at the pleadings exacerbated my forebodings. Generally, lawyers fall into two groups. The first enjoyed fine legal points and thrived on theory. Robert was one of them. The other group comprised non-nonsense men, who would concentrate on the facts and seek to score with simple, common sense, arguments. Thomas Bardwell – Robert’s opponent – fell into this group. He was also known as a sharp – often unscrupulous – cross-examiner.

            Naturally, I appreciated that the classification of lawyers into such two groups was not conclusive. Most lawyers were intelligent professionals, who knew when to concentrate on legal point and when to fight a case of its ‘merits’ (facts). After a while, though, most lawyers tended to acquire a reputation for their skills in working out their tactics and approaches to a case. The ones most in demand had proved their skills both in taking up points of law and in arguments respecting facts. Neither Robert nor Thomas had attained such an outstanding reputation.

 

IV.THE TRIAL

 

 

            The trial, which took place some two months later on, demonstrated that, in the case in question, Robert was no match for Thomas. Jack Smith, the plaintiff, had to be the first to present himself as a witness. Robert asked him the usual questions respecting his background, his experience in horse breeding and his reliance on the catalogue. He ended his examination by a set of simple questions.

            “So why did you rely on the John Brown’s statement?”

            “I have dealt with the sales house for years and have full trust in them.”

            “How about the auctioneer – Douglas Brown?”

            “I have known him for a long time”.  Turning to the judge he added: “I thought he was a decent chap. And his statement was clear: he said the mare was with fowl.”

            “Did you ask for a copy of the certificate?” interceded the judge.

            “I saw no need for this, Your Honour. I was sure he was a gentleman and, further, could not imagine that the sales house would have any other type of man on its staff.”

            “No further questions,” concluded Robert.

 

Thomas Bardwell looked sombre. His own clients, Douglas Brown and the sales house,  were accused of misrepresentation and misleading practices. These were serious allegations. Thomas had to convince the judge they were unfounded. The plaintiff, Jack Smith, was a reputable businessman and his word should not be taken lightly. If the judge accepted his version, the sales house’s reputation would be tarnished regardless of legal niceties.

Thomas was considering his line of attack. Since his years as a law student, he had grown from a heavily set but agile young man into a middle-aged man. His hair was receding and his sunken eyes and tired expression evidenced the constant stress of his work. Still, I knew he was taking his daily exercise and often spent some time in the gym. In comparison, Jack Smith looked bloated and under-exercised. I thought it unlikely that he spent much time riding his horses. And his beer belly suggested that he frequented pubs and clubs rather than stables. My friend and colleague, Robert McBride, appeared younger and more vigorous than either of them. Was it possible that his studious life and regular lectures kept him from aging?  

“Your interest in horse breeding is only a hobby, Mr Smith” started Thomas.

“Quite,” replied Jack Smith.

“Could you please tell us more about your other hobbies and main occupation?”

To my dismay, Robert rose to his feet and objected to the question on the ground that it was irrelevant.

            “I’ll withdraw the question then,” volunteered Thomas. “We have no wish to probe into the witnesses’ private affairs.”

            “I have nothing to hide,” interceded Jack Smith angrily.

            “The question has been withdrawn. So, it is no longer before us,” explained the judge.

            Robert had disclosed his weak point. On legal grounds his objection was sound: the question was not in issue. The question, though, was harmless and the judge’s body language showed that the episode left  a negative impression on him.

            Thomas’ reaction was swift. “Well, Mr. Smith, how many hours a week do you spend on your … horse breeding hobby?”

            “Most weekends and about two mornings during weekdays.”

            “Quite a major hobby, isn’t it?”

            “Well, yes.”

            “And how many horses do you have?”

            “Objection, your Honour. I don’t see the relevance of the question,” interceded Robert.

            “I’ll allow it,” retorted the judge. “Answer the question, Mr. Smith.”

            “About thirty,” replied Jack Smith.

            “Quite a large stable for an amateur, isn’t it?”

            “It is,” conceded Jack Smith with some pride.

            “And how may of them have you bought from my clients?”

            “This was the first. I know them from transactions in my main type of business. It is …”

            “Please confine yourself to answering the question put to you,” instructed the judge.

            “We’ll accept the answer on the question asked,” clarified Thomas. “And Mr. Smith, you read the catalogue.”

            “I did. That’s where I got the description of the mare.”

            “Did the catalogue say she was with fowl?”

            “It did not. Mr. Brown augmented the description in catalogue!”

            “Did you read clause 15 of the terms and conditions printed on the first page of the catalogue?” asked Robert, referring to the exemption clause

            “I did. But I did not pay much attention to it.”

            “Why?”

            “It is printed in every catalogue I receive!”

            “So, you were told not to rely on the descriptions in the catalogue. You were asked to examine the items you were interested in.”

            “I did not have the time to do so! Nobody does”

            “Your Honour, I ask that the second part of the answer be struck out or that Mr. Smith convey to us the source of his information.”

            “Mr. McBride?” asked the judge.

            “I agree this part of the answer be struck out,” yielded Robert.

            “So, you took a calculated risk, Mr. Smith,” pointed out Thomas.

            “But Mr. Brown made an express statement!”

            “What exactly did he say?” Thomas lowered his voice.

            “Could you please repeated the question. I wasn’t able to hear you.” Jack Smith sounded flustered. The judge, in turn, took notes of the incident.

            “Well Mr Smith, what exactly did Mr. Brown say?” Thomas raised his voice to its normal level.

            “He said the mare was with fowl.”

            “So now you can hear me,” noted Thomas. “Are you hard of hearing Mr. Smith?”

            “I am not,” replied an irritated Jack Smith.

            “I don’t see the relevance of this enquiry,” objected Robert.

            “Mr Bardwell has demonstrated that Jack Smith’s hearing is not perfect,” observed the judge. I heard the question well when first asked. I’ll allow the record to stand unless you establish its irrelevance later on.” Turning to Jack he asked:  “Mr. Smith, was the room noisy?”

            “It was, rather,” conceded Jack Smith.

            “And how many dealings have you had with Douglas Brown?” asked Thomas.

            “None.”

            “So how comes you know him well and have formed opinions about his gentlemanly character?”

            “I have met him in clubs and have dined with him!”

            “Very well,” conceded Thomas, adding firmly: “and how much did you bid for the mare, a mare you had not viewed or examined?”

            “Three thousand dollars,” muttered Jack Smith.

            “A very substantial amount of a man’s yearly income, isn’t it?”

            “Not of mine,” protested Jack Smith. The judge,  I noticed, raised his eyes from the notes he was taking. His annual salary, as we all knew, was in the vicinity of $10,000.

            “And you started bidding without having a look at the alleged certificate waved by Douglas Brown?”

            “True,” conceded Jack Smith.

            “No further questions,” said Thomas and resumed his seat.

            “You are satisfied Mr. Brown waved a certificate and alleged a veterinary had certified the mare was with fowl,” asked Robert, exercising his right of re-examination.

            “He did indeed!”

            “No further questions,” said Robert, adding: “this is the plaintiff’s case.”

Robert’s statesmen indicated that he had resolved to rest his case on Jack Smith’s testimony. If his allegations remained unchallenged, Jack was in a powerful position. Thomas Bardwell’s task was to refute them. He was ready to rise, when the judge looked at his watch. As it was mid-morning, his Honour called a 15 minute break.

 

The first witness produced by Thomas was John Hicks, a store man and administrative clerk of the sales house. He confirmed that all communications respecting the mare had been between himself and its owner.  The documentation related to the mare were all in a file. At Thomas’s request he produced the file which was thereupon treated as record submitted to the court and marked Def1 [Def exhibit 1].

“Is there any document in Def1 which suggests the mare was with fowl?” asked Thomas.

“No.”

            “No further questions”, said Thomas.

            “Could a certificate attesting the mare was carrying be handed to the auctioneer just before she was put up?” asked Robert.  The judge raised his eyes. The question called for the witness’s conclusion on matter unknown to him. It was therefore contrary to strict evidence rules. Thomas, though, did not raise any objection.

            “I have no idea. Still, I was at the auction and would have taken a note and asked that the certificate by handed to me.”

            “On what do you base your assertion?” Robert McBride let his irritation show.

            “We follow certain procedures during auctions. If any statement made by the auctioneer is at variance with the catalogue description, we have the practice of recording it.”

            “Don’t tell me you never depart from practices,” Robert sounded victorious.

            “I have no recollection of having done anything like that for years,” John Hicks let his annoyance show.

            “Can you be certain?”

            “I am!” responded John Hicks.

            Thomas did not find it necessary to re-examine. Instead, he put Douglas Brown on the stand.

            “Mr Brown, did you make any statement about the mare when the bidding started?”

            “I did,” answered Douglas turning to the judge.

            “What did you say?”

            “I read out a certificate, handed to me by John Hicks. It stated that one of the horses bred from her had won a minor race in Auckland.”

            “Please look through the file, marked Def1.”

Obediently Douglas perused the file. I felt confident that Thomas had trained him well. When Douglas raised his eyes, Thomas asked directly.

          “Did you make any statement about the mare carrying a fowl at the time of the auction?”

            “I did not.”

            “Did you wave any certificate and proceeded to sum it up for the attendants?”

            “Only the certificate handed to me by John Hicks.”

            “Are you certain there was no other certificate?” asked the judge.

            “I am, you Honour.”

            Robert’s attempts to shake or break the witness were futile. Douglas Brown stood his ground. I sensed that Robert was getting nowhere and, on top of it, was exhausted. Everyone in court, except himself, knew he had lost the case.

            The proceedings were brought to their end by the judge. “I do not see the object of your line of questioning, Mr. McBride. The witness has made his position very clear.”

            For the first time Robert looked deflated. “In that case, you Honour, I have no further questions.”

            Thomas waived  re-examination and, further, closed his case. All that was left, were the addresses to be made to the court by the counsel of the parties. Still, it was by then well past noon. The judge rose for the lunch break and advised that, unless the parties came up with a settlement, he would listen to their arguments when the Court resumed at 2.30 p.m.

            Thomas Bardwell’s address was short. On the evidence, the ‘item’ was as described in the catalogue. He agreed that any misleading behaviour could lead to actions for misrepresentation or non-compliance with the Sale of goods Act. Here no such facts were established. To the contrary: the item put up for sale was described as a pedigree mare; and that was exactly what she was. The certificate on record did not establish that any incorrect description had been made. He asked that the action be dismissed with costs.

            Robert address in return was complex. He asked the judge to accept the version put forward by Jack Smith. He then analysed a substantial number of authorities which established that, if a wrong statement had been made, the sales house and Douglas Brown were liable.

            The judge took notes but looked only marginally interested. Then, unexpectedly, Robert raised a new point. Even if the facts were as alleged by the defendants, the contract respecting the mare was null and void as it had been entered into under a genuine mistake made by the plaintiff, Jack Smith.

            Instantly, Thomas Bardwell was on his feet. He pointed out, vigorously, that to  ‘mistake’ was not pleaded. Accordingly, this line of argumentation was precluded. Robert countered by an application to amend the pleadings. Thomas objected on the ground that this application was made at far too late a stage.

            For a few minutes the judge wavered. Initially, he asked for further arguments on this point. Thomas was well prepared. Evenly but firmly he pointed out that the defendants should not be subjected to surprises. Justice in proceedings had to be observed. Then, as coup de grace, he cited a passage from Robert’s own book which suggested that an amendment could not be allowed once both parties closed their respective cases.

            “In any event,” interceded the judge, “the plaintiff claims monetary compensation. Does an action based on a mistake support such a claim?”

            “Not normally,” conceded Robert. “But if the mistake is linked to misleading dealings on the defendants part it can! In their absence it cannot!”

            “In this case what is the basis for application?” asked the judge.

            “An attempt to do justice!”

            “Which can be done if the defendants were guilty of a misrepresentation,” chimed in Thomas. “And this very question before Your Honour even if no ‘mistake’ is added to the pleadings at the last moment and without warning.”

            For a few more minutes the judge hesitated. Then he disallowed the application, pointing it could be raised if the case was taken further up. Robert retorted that, in the circumstances, he had nothing to add. Thomas in turn waived his right to have the last word.

 

            “I’ll allow a coffee break,” said the judge. “I’ll deliver judgment when we resume in 45 minutes. All rose ad bowed.

When the judge returned, he went directly to the point. He found Douglas Brown’s evidence reliable and preferred it to Jack Smith’s. He held that no misrepresentation had taken place and that the mare was as described in the catalogue. The certificate on file reaffirmed her being of a  good pedigree but did not state she was with fowl. His Honour did not accept that any other information was provided by the sales house or Douglas Brown. Accordingly, he dismissed the case and ordered that Jack Smith pay the defendants’ legal costs.

The parties, the lawyers and the few onlookers milled out of the courtroom. As I made my way into the street I ran in Thomas Bardwell. He grinned at me and observed, nonchalantly, that it had been a nice experience to cite Professor McBride’s book against his own application. I could not help nodding sympathetically.

“Weren’t you surprise he had not pleaded ‘mistake’ from the start?”

“No, I was not. They wanted to keep the mare and, in addition, get damages. Don’t you think this was too greedy?”

“The less said on the topic the better,” I told him and added: “But don’t tell me Robert was a poor teacher. I came over to enjoy his lectures. The class liked him!”

“So did I. He was a clear even if somewhat dogmatic lecturer. Still, his place is in the ivory tower. In the courtroom he is out of his depth.”

“You have a point there, Thomas,” I conceded and rushed off.

 

For the next few days I avoided Robert McBride. Twice I saw him on the mezzanine, checking books on the law of contract. I appeared best to return quietly to my office and to keep looking out of the window. The view was as fascinating as always. The harbour was beautiful. Still, the taste in my mouth was bitter. Robert had made a fool of himself and even failed to see what happened to him.  If he ran into me he was bound to complain about the judge’s lack of understanding and the scoundrels in the sales house. I did not want to have to listen to such futile arguments.

 

V.POST MORTEM

 

Things came to their head a few days later on. One the senior professors came over to my room. Lawrence Gent was known as a fine courtroom advocate. He was as excellent when it came to legal points as when a case turned on the facts. At one stage, we appointed him dean but his commitments at court prevented him from running the faculty efficiently and so resigned.  All of us treated him as the grand old man of the law school. His visits to the rooms of other colleagues were scarce.

For a while we looked out of the window and relished the view. Eventually, Lawrence broke the silence.

“You do have a grand view, Peter. Best office in our faculty.”

“You did me proud,” I smiled at him. “but did you really just want to enjoy the view from my window,  Old Boy?”

“That too; but I am delighted to drop in on my friends when time permits.”

“You didn’t look too ready for a tête-à-tête when I spotted you in our library a few days ago.”

“Well, I was writing an opinion and, alas, business takes priority overly friendly chats.”

“Were you by any chance dealing with Robert McBride’s latest case and have come over to discuss this matter now. I believe you knew that he had discuss this matter with me.”

“Spot on, except that – as I said before – I enjoy catching up with all friends whenever time permits.” After pausing for a moment, he added: “And as to the matter you just mentioned: not one of Robert’s successes, I fear.”

“That’s putting it mildly. The fellow made an ass of himself.”

“Aren’t you too blunt? Still, from what I hear our Robert was not at his best.”

“Actually, what is your connection with the case, Lawrence?”

“Initially, I turned down the brief offered to me by the sales house. I avoid taking up cases, when a good friend is on the other side.”

“Commendable. Still, your reticence didn’t save Robert. Thomas Bardwell made mincemeat of both Jack Smith and our Robert.”

“Thomas is a fine lawyer. Not the best when it comes to analysing authorities or awkward points of law. But the man has common sense and is a good fighter. And he knows when to pull his punches.”

“He acquired his strategical skills from accomplished teachers!”

“Oh well, he is a good student,” conceded Lawrence.

 

By then, the reason of Lawrence’s visit and discussion dawned on me. Jack Smith’s solicitors  must have asked for his opinion about an appeal. Lawrence, who was watching me keenly, turned to this very matter.

“Well, Peter, what do you think about an appeal?”

“Not on,” I told him.

“But how about the last minute points concerning Smith’s purported mistake?”

“Jack sought damages, Lawrence. Effectively, he wants to keep the mare and get the price reduced.”

“Do you think he can get this?”

“Off the record?”

“Of course.”

“The judgment is sound.  A last minute attempt to amend the pleading was uncalled for. I would leave matters alone. At best, the Court of Appeal may send the case back for a rehearing. But on the judge’s findings a claim for damages is bound to fail.”

“I agree,” Lawrence was resolute.

“When you fine tune your opinion, do try to play down Robert’s blunders.”

“I shall. But I’m afraid the harm has been done. It will take Robert some time to live the cese down.”

 

Neither of us had any more to say about the subject. For a few minutes we gossiped about Faculty affairs. We then proceeded to the canteen for a cup of coffee.