COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited  EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel in an attempt to settle. These opinions were then placed before the trial judge. He was clear in his view as to their value.
” providing an English court with the views of English barristers on questions of English law is wholly unusual, inadmissible and in my judgment of no assistance whatsoever. I have had no regard to these opinions at all.”
THE RELEVANT PART OF THE JUDGMENT
“There is one unusual aspect to this part of the case and it is that each party served upon the court written opinions of other leading counsel who had been instructed in the case previously, and also one of Mr Mort’s opinions, on the subject of this claim for repayment. These had been exchanged between the parties on a without prejudice basis as part of their fruitless attempts to reach a settlement of the litigation. Oral submissions, particularly by ICI, as to the appropriate consideration and weight to be given to these opinions were attempted. There might, very occasionally and most rarely, be some circumstances where a court might possibly be assisted by such documents, but I cannot envisage what they might be, none apply in this case, and in my judgment such views are inadmissible. They are certainly not evidence, and they have no status as authority. If points of foreign law are involved in a case, then opinions of distinguished practitioners in that foreign law are admissible (with permission) as expert evidence, on what are seen in English law as matters of fact. However, none of that applies here, and providing an English court with the views of English barristers on questions of English law is wholly unusual, inadmissible and in my judgment of no assistance whatsoever. I have had no regard to these opinions at all.”