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.