“Mr. Coldham’s case necessarily raises the question of what ought to be a lawyer’s responsibility in the management of his client’s concerns. Mr. Ponting, the sole survivor from the wreck of the Alert, sued the owners of that steamer for damages. The case was tried in the County Court before a judge and jury. Mr. Coldham acted as counsel for the defendant shipowners. One of the jury, a man named McGregor, was a personal acquaintance of the barrister. During the progress of the trial, according to one set of affidavits, certain winks and nods and smiles and by-play were indulged in between counsel and this juryman. Mr. Coldham denies the winking part of the business. However, there is something that he does not deny. This juryman of his acquaintance handed to him during the trial a private paper connected with the case, and subsequently he met his friend at an hotel bar, and had some drink and talk with him. This almost inevitably gave rise to the suspicion that the jury had been improperly influenced. A new trial was applied for, principally on that ground; and though Judge Chomley refused to grant it, and sustained the jury’s verdict, the Full Court judges have done otherwise, on the ground of the ‘highly indiscreet and highly improper’ conduct of Mr. Coldham.
“To the man of law the interest that centres in this case will be the grounds on which the judges differed from each other. To the ordinary citizen it will rather lie in the fact that the verdict of the Court mulcts the client for the lapse of the lawyer. Mr. Justice Chomley refused to disturb the jury’s verdict on the ground that, though Mr. Coldham’s conduct had been wrong, it had not corruptly influenced the jury’s minds. Mr. A’Beckett held the same opinion. Mr. Coldham, he holds, had done an exceedingly foolish act in hobnobbing with jurymen in an hotel bar during the progress of the trial. He said ‘it was conduct which the Court would not sanction or countenance; and if the Court had called upon those engaged in this matter, it would express its disapprobation and make them pay.’ But as the conduct in question was not corrupt, he refused to inflict the hardship of a new trial on Messrs. Huddart, Parker & Co. That is one view of the case. Justices Williams and Holroyd take quite another. They hold that Mr. Coldham’s acts gave rise to reasonable suspicions in the minds of onlookers. They no more say that the barrister acted corruptly than do the other judges, but they are clear that his conduct was such that any reasonable man might have entertained from it a suspicion of corruption. Mr. Justice Williams says that it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.”
“On these grounds Justices Williams and Holroyd have upset the jury’s verdict, and granted a new trial. There were other reasons alleged, and there may possibly have been other reasons in the minds of the judges. The Ponting trial is almost precisely on the same lines as three or four previous trials arising out of the same wreck. The widow of a drowned sailor named Kilpatrick sued the owners of the Alert, and got a verdict in two separate actions, on the ground of the vessel’s unsea-worthiness. On an appeal to the Full Court she was again successful, and the action was then carried to the Privy Council, where it now remains. Ponting’s case came before a County Court jury, and was dismissed. This might possibly have supplied an additional ground for suspicion that the jury had been improperly influenced. That suspicion may be ever so ill-founded; but there it was, and there it is. Mr. Coldham’s imprudence caused a miscarriage of justice, and a wrong to both the parties to the trial. The point of immediate interest to the litigating public is as to whether in a case like this the innocent client ought to pay, and the inculpated practitioner escape. Clearly, says Mr. Justice A’Beckett, the Court has power in cases like this ‘to make the lawyer pay.’ And we know this from the action of the Chief Justice on June 28, 1894, when he dismissed a jury in a part-heard case because Mr. Field Barrett, solicitor, had been seen speaking to one of the jurymen. The Chief Justice said that if he discovered the expenses of the Crown in the suit he would order Mr. Barrett to pay them. The excuse put forward that Mr. Barrett was a personal friend of one of the jury was declared by the Chief Justice to be an additional reason for ‘keeping him at arm’s length.’ Mr. Coldham could not have been ignorant of this case nor of the strict rule from which it had its rise. He therefore offended with open eyes against one of the canons of justice. The argument arising out of this act ought to have a strictly impersonal, and not a personal, bearing. It is that when an officer of the Court commits an improper and unprofessional act which entails cost on the public at large as well as on the litigants in the trial, he should be the chief sufferer, and not go scathless whilst others carry the burdens of his culpability. It is all very well to be tender of Mr. Coldham’s feelings; but the ordinary ethics of daily life demand that every wrong-doer ought as far as possible to bear the penalty of his own wrong, and it seems something like an outrage on equity if a lawyer is to be permitted to commit ‘improper’ acts against the dignity and sacredness of justice, and then lightly throw the penalty on others.”
Notwithstanding the seriousness of the “Bar” episode, there was a good deal of the comic element involved in it, and therefore the journal (quoted below), which is edited and conducted by and for barristers, evidently for once at least, carried out Pope’s advice:—
“Eye Nature’s walks, shoot folly as it flies,
And catch the manners living as they rise;
Laugh where we must, be candid where we can,
But vindicate the ways of God to man.”
JURISPRUDENCE IN MELBOURNE.