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The rather dramatic denouement to the Mitchell libel trial - or rather trials, because Mitchell was suing News Group Newspapers, and was being sued by PC Rowland - brings to an end a saga that has not only involved stroppy MPs, leaky police and massive legal bills, but has also led indirectly to what any English civil litigation lawyer is going to remember as The Year We Got Mitchelled.

So why has a short exchange outside the gates to Downing Street had such an effect on English civil legal practice? Well, to understand that we have to go back about 15 years, to the Woolf Reforms and the introduction of the Civil Procedure Rules, aka the CPR.

Read more... )
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Barristers tend to have a reputation for being conservative (indeed Conservative), restrained and traditionalist. It may provide some idea of just how angry the Government's cuts to legal aid and ham-fisted court 'reforms' have made the criminal bar in particular to see the Criminal Bar Association's poster for its next event:

Comrades of the Bar, Unite! )

(From original at event home page here)
major_clanger: Clangers (Royal Mail stamp) (I Am The Law!)
I was thumbing through Counsel magazine when I saw a small advert for a product that I immediately saw was being sold to the perfect market:

Archie lever arch file fixers

I say this because the following scenario is all too familiar to anyone who does trial advocacy.

You are in court. Standing in the witness box is the defendant Mr Codsworthy, who for our purposes we will imagine owns Codsworthy Cat Holidays, a cattery to which our client, the claimant Ms Frodsham, entrusted her beloved Tiddles whilst she spent a week exploring ancient ruins in Crete. Ms Frodsham claims that Tiddles was half-starved and traumatised on her return, and she seeks repayment of the exorbitant fee charged by Mr Codsworthy, plus the cost of a fortnight's subsequent treatment for Tiddles at a residential cat therapy retreat.

The trial of Frodsham v Codsworthy (t/a Codsworthy Cat Holidays) has reached the cross-examination of Mr Codsworthy. As in most civil cases in England, Mr Codsworthy hasn't given his evidence by oral testimony but instead has simply confirmed the truth of his witness statement. At paragraphs 3, 5, 32, 48-56 and 107 of said statement he emphasises his lifelong love of, and devotion to, cats. As counsel for the claimant you wish to cast doubt on this. You direct Mr Codsworthy to his statement, which is in the groaning lever-arch file before him marked WITNESS BUNDLE and read aloud the most sentimental of his claims, putting it to him that this is how he represents himself - he can hardly disagree, those are his own words. Behind the bench, Her Honour Judge Daphne Fotherington QC patiently takes notes and peers at you over her glasses with that special 'I take it you are getting to the point...?' expression all good judges have mastered.

"Mr Codsworthy, could you turn now to page 206 of the bundle, which you will find between tabs E and F". For that is where the smoking gun is hidden; the transcript of an after-dinner speech given to (and, alas for Mr Codsworthy, recorded at) a local entrepreneurs' club where Mr Codsworthy told his audience of aspiring Lord Sugars how he made a mint out of the cattery business by feeding them on manufacturing waste from Findus and exercising them by seeing which cats could run fastest when he flicked rubber bands at them.

All eyes are on Mr Codsworthy, who (in these days of full disclosure and agreed trial bundles) knows full well what you are about to cross-examine him on. The lever-arch folder creaks as he pushes 200 pages of pleadings, directions, witness statements and expert reports from vets out of the way... and explodes in a shower of of paperwork.

"I'm so terribly sorry," says HHJ Fotherington QC, "these things do happen. Please take a moment while we tidy things up." But, as the clerk of court scrabbles for sheets of paper, the moment is lost. The defendant has the sympathy of the judge. Your narrative momentum is derailed. All because of the weakness of a lever-arch file.

Any lawyer who has been in this position (i.e. any lawyer) is likely to adopt the view of Mr Philip Fry vis-a-vis the Archie:

I can honestly say that the inventor of the Archie is on to a winner and at £5 for 10 has certainly hit on a better way to make money than, say, representing clients on legal aid...


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Simon Bradshaw

September 2017



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