Last week for the first time sitting
across from me and my colleagues was a barrister who described his firm as
“Direct Access”. Neither our L/A nor either of my colleagues was familiar with the
designation. He proceeded to explain that he was present
on a one time only basis on behalf of his client. There was some contentious legal argument which was hardly unusual but
what was unusual was his vociferous and at times downright rude manner to the
court. His method of making his case was
to try and shout louder than our L/A .
It took a great deal of self control from the bench to make it perfectly
clear to him that as opposed to the L/A`s position when giving the bench “advice”
which the bench can follow or not as the case might be when she gives an interpretation
of the law the bench is obliged to follow that instruction. Eventually he sat down muttering under his
breath. His behaviour provoked a few
minutes discussion during the post court review.
And now earlier this week my colleagues
and I find another barrister presenting his client`s argument that he is unable
to offer a plea on his first appearance owing to disagreements over disclosure
and in his opinion the requirement that the CPS should pay the translation and
transcription costs of documentary evidence which he claimed would be necessary
for his client to be able to successfully defend a charge of assault. The debate was relatively uncomplicated but
once again the manner in which it was presented by the barrister, whilst not quite bordering some might have said on contempt, was delivered in such furious outbursts and language which had no place in a court of law.
At the post court review I described to
our L/A the previous experience of the week prior. He was as baffled as we were by the aggression shown. Perhaps in our neck of the woods chambers
have decided to go all out no holds barred for this new business opportunity
leaving no prisoners in their wake. Perhaps
they consider a bench of three lay magistrates might be easily
intimidated. I would say,”Think Again!”
Plainly the conduct of those two members of the Bar was objectionable, but I take issue with the suggestion that any bench is obliged to follow an interpretation of the law offered by their legal adviser. Clearly, a bench will give great weight to such an interpretation, but ultimately the bench is the tribunal of both fact and law. It is open to a party to seek to persuade the bench that the state of the law is X, by reference to statute and authorities, however firmly they are advised it is Y. For a bench to decline to rule on the law is to improperly delegate their role.
ReplyDeleteAs far as I am aware a bench making a decision on law against the advice of its legal advisor runs the risk that a successful appeal against its findings could lead to wasted costs against each bench member personally.
DeleteNot so. Justices of the Peace have statutory immunity from costs orders - see Courts Act 2003 ss.31 to 34
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ReplyDeleteBarristers must have a lot of experience in all areas of Law. They must be able to tailor a service that suits clients. A good lawyer can handle stressful and complicated cases very well with his smartness.
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