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.”