Barely arguable (2)

“I am instructed that …”: words that signal to the judge that you know your case is hopeless but your client is insisting that you run it. It was even referred to as “the traditional coded message” in a passage in Cook on Costs (2010).

Dyson LJ made it clear in a case called Richard Buxton (Solicitors) v Mills-Owens & Anor [2010] 1 WLR 1997 that use of the expression amounts to unacceptable advocacy.

“In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it. He should not advance a submission but signal to the judge that he thinks that it is weak or hopeless by using the coded language "I am instructed that". Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided.”

Of stories

I don’t think that C S Lewis’s view was that stories of any kind - Biblical, fairy tales or otherwise - should be inflicted on children. The book I recommend on the subject of fairy tales is “The Uses of Enchantment” by Bruno Bettelheim. Essentially (and I am not really doing justice to the argument) fairytales can fulfil an important function in the psychological development of a child or adolescent. There are many examples in modern children’s fiction and elsewhere which achieve the same objective. But just as Lewis suggested that when he grew to like hock, he did not abandon lemon squash, so too (I suspect) he would argue against mere replacement of one thing with another: for that is not growth.

A fictional Judge

Someone told me that I reminded them in my pedantic style of writing to “Judge Wargrave” in “And Then There Were None”. I reject that slur utterly. Although I would point out that the learned Judge would never, except perhaps informally, have been referred to as “Judge Wargrave”. A High Court Judge of what would, in those days, as now, have been the King’s Bench Division, his correct title was “Mr Justice Wargrave” (or, even more fully, the Honourable Mr Justice Wargrave KBE). In the law reports, it would have been shortened to Wargrave J, and that is how High Court Judges sign documents in that capacity. I have even heard them refer to themselves, in court, by that shorthand. Given the customary knighthood afforded to puisne (pronounced, curiously, puny) judges, ie the KBE, you could equally properly have  referred to him as “Sir Lawrence Wargrave”. If a barrister happened to bump into His Lordship on the way to the holiday retreat where they were to spend their vacation (perhaps grateful not to know what was to befall its inhabitants), that barrister might have addressed him socially as “Judge” but never “Judge Wargrave”. Nor “My Lord” because that would only be in court. Just thought you’d like to know.

Barely arguable

There is a Judge, now retired, who I will not embarrass by naming. I had a number of encounters with him in the children field and elsewhere. Most notable, however, was an appearance in the county court for a tenant in a possession action who assured me when we met in conference that I was going to win for him. I had reservations; but put forward an argument which fell into the category of arguable: possibly only barely: My argument ran thus. Because the termination clause in the tenancy agreement said something like “The landlord must give seven days notice and the tenant must give seven days to terminate”, this should be construed contra proferentem given the draconian nature of the remedy sought, and meant that both sides had to give notice to each other in order effectively to terminate the tenancy. To my astonishment, the learned Judge bought the argument (he had a reputation for being a sucker for the oppressed even though in this case I was far from certain that it was the tenant who was being oppressed); and to my even greater astonishment the landlord did not seek to appeal.

The death penalty

I have long had strong views about this. At the age of seventeen, I spoke up in a debate organised by Amnesty International on the death penalty and said, to pitying looks from the organisers, "But aren't there people who deserve to die?"

Now as a lawyer, my feelings are somewhat different. Indeed, there are some who would argue that I fall into the category of human rights lawyer, even though I think that the very term is suspect: any qualified lawyer should have a working knowledge of the law arising from the European Convention on Human Rights. I suppose that if I were innocent, I might be rather grateful for the existence of human rights lawyers who are sometimes the only remaining bulwark to an over-mighty state, and glad of the reality that we abolished capital punishment in this country. Be that as it may, I once represented a client in the Privy Council who had been convicted of murder in Jamaica and sentenced to death by hanging; it was his final court of appeal. I had done none of the arguing; I was only there to hear the final decision - "We will humbly advise Her Majesty that the Petition be dismissed". I have never chosen to find out whether the deed was actually done or whether Delroy Ricketts - the case is in the Law Reports - still lives.

These, then, are my long-held musings on the death penalty. I do not claim originality. But they are the arguments I advance whenever faced with somebody who holds the contrary view.

I know of no evidence that shows the death penalty acts as a deterrent; there is, on the other hand, a risk that having the death penalty will dissuade juries from convicting in such cases; and how does one determine when it should apply? On the basis of the heinousness of the crime? So one potentially elevates some victims over others. On the basis of the clarity of the evidence? So one potentially puts to death someone who happened to shoot victims in public but does not do so to the person who tortured them and then shot them in private. The trouble is that capital punishment is not some panacea which resolves society's ills. Instead, even if one accepts that it takes away some ills - in the form of the lives of those who (let us assume for these purposes are guilty as charged - but the risk of the irreversible unappealable miscarriage of justice is yet another key argument; Derek Bentley; Timothy Evans) are executed - it creates others: it causes (I would argue) potentially huge psychological harm to those who would play their part in the trappings of judicial execution: the judges, the lawyers, the doctors, the prison guards, the executioners, the politicians (such as the MP who offered his services as executioner to the Home Secretary during the last debate on the matter in the House of Commons): to name but a few. In my view, it makes society poorer. I reckon that if I were to participate in any meaningful way in judicial executions, it would damage and diminish me. I would only want to see it returned in the case of someone dear to me who died at the hands of someone else; yes, I can imagine wanting to see that person die for what they did - and that is one of my strongest reasons for resisting the return of capital punishment.

How to negotiate by Wilkie Collins

Having recently moved to Chambers in Lincoln's Inn Fields (where the author Wilkie Collins began his short legal career and placed a number of his characters), I have been musing on connections between his description of legal practice and my own.

As a member of the family bar, I spend a significant amount of my time dealing with draft documents and agreeing/not agreeing their contents with "the other side". These days it is by e-mail. In the days of the events below, it was no doubt by messenger... Not that I have ever been quite as short and sharp as described here in Collins’s “The Woman in White”.

"The answer I wrote to this audacious proposal was as short and sharp as I could make it. "My dear sir. Miss Fairlie's settlement. I maintain the clause to which you object, exactly as it stands. Yours truly." The rejoinder came back in a quarter of an hour. "My dear sir. Miss Fairlie's settlement. I maintain the red ink to which you object, exactly as it stands. Yours truly.""

Free, useful and reliable websites for lawyers

The title of this post seems like clickbait ... and in one sense it is because I take the view that the websites below are useful for all practising lawyers (not merely those practising in a particular field), are free and are reliable (in the sense that you will not find fake news on them). I will update this from time to time.

www.bailii.org - excellent search engine and the best source of unreported (and many reported) cases.
https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service - HMCTS
https://www.gov.uk/government/publications/administrative-court-judicial-review-guide - the administrative court's guide to judicial review.

https://courttribunalfinder.service.gov.uk/courts/

www.judiciary.gov.uk - among other things, up-to-date lists of the judiciary.
https://www.justice.gov.uk/courts/procedure-rules - procedure rules
www.legislation.gov.uk - about as up-to-date as you can hope for statutes and statutory instruments.

http://wbus.westlaw.co.uk/fv.shtml