1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.

The Courts belong to the public world. The speech (and writing) of the courts is public speech and public writing.

Consequently, we in our office occasionally nominate the late Conor Cruise O’Brien as our preferred witness (on any topic, in any case).

He excelled at public speech and writing. He was wonderfully combative and would not suffer fools gladly. In short, he would have made mincemeat of most counsellors. (That’s a good US word to describe a “trial lawyer”).

His gifts were self confidence and familiarity with the public world. Most witnesses lack both to some degree, especially the latter. They are vulnerable, consequently, to mendacious forms of cross-examination.

Conor Cruise O’Brien himself demonstrates this to some degree. He remarked that he recognised his enemies by their approbation of the ideas of Rousseau. This was a harsh standard. Few people know the source or sources of the ideas they use to prop up their speech, not to speak of their lives. To take everything they might say as defining them perfectly is just wrong. To challenge them to defend the propositions inherent in their speech is also, generally, unfair. After all, Rousseau, among other things, undermined the “Ancien Regime”; he pointed to the fact that social conditions were the product of bad government, not the fault of the populace in misery. These opinions would not generally be considered contentious now (among Social Democrats, anyway). Likewise, they are not rebutted by being paraded for inspection with some other doctrine of Rousseau’s, now, perhaps, considered indefensible.

What is the defining characteristic of real troublemakers is their failure to allude to any form of idea in their speech or writing. They seek instead to give the impression that they are simply representative of a general current view, undefined.

They speak in terms of the title to this post.

It is surprising how often the willfulness of lawyers or litigants drives litigation, rather than evidence. We see an instance of this in the “theory” that William Shakespeare did not write the “Shakespearean canon” and that the plays and poems were written by, among others, Francis Bacon. This theory was first advanced by Delia Bacon in a book published in 1857.

The essential element of the book, in explaining its success, was prolixity. A work is prolix if it is too long. It is a general human failing to think that there must be substance to something if it can be written about at length.

At any length, Ms. Bacon’s book was too long.

In this vein, some solicitors and some barristers stand out for an inability to produce short affidavits. They talk all around the problem, avoiding the terms in which the opponent has defined the issues. This may be very good in principle, but it is tiresome in practice and oppressive when the prolix affidavit is sworn in the cause of big institutions, for, in truth, this is a feature of struggles with big institutions; they try to talk the problem away.

This blog is settled in the view that the current fashion of requiring minimal discovery of records/documentation in the course of litigation is mistaken.

That aside, there is a problem in the handling of documentation, in the conduct of litigation. After all, what does one do with the material discovered?

Well, litigation, like chess, is about the endgame.

If a piece of paper, or other record, has come to light and it conclusively supports, or rebuts, the contentions of a party, it is essential that it should be introduced to the judge as evidence.

So, too, should documentation that, while no element of it is decisive, shows a pattern of behaviour, or system, more consistent with the contentions of one party rather than the other.

How is paper introduced as evidence? By proving it.

Some unusual bits of paper prove themselves (Ordnance survey maps, for instance). All other bits must be proved particularly.

This requirement tends to make a bottlekneck for paper in the course of trial.

That’s the way it should be.

The alternative is bad. The alternative consists of the witness (or counsel) handing in a box or boxes of paper to the judge, with some claim that it is relevant, whereupon most, if not all, will not be referred to again during the course of the trial.

Assume then that the judge indicates his/her intention to give a reserved judgment. Assume also that the judge reads all the papers handed in. Assume also that the judge adopts a bad habit of doing his/her own research and finds some case or cases not mentioned by either party in the course of the trial.

The predictable outcome will be a judgment invoking law and principles of law not mentioned in the trial and referring to paper upon which the witnesses or most of them will have had no opportunity to make comment.

This, to put it at its lowest, is undesirable.

This is the problem inherent in the modern notion of “judicial case management”. There is a limit to the hands-on role a judge may adopt. Otherwise why not simply write to the court, submitting one’s case in writing and asking for a favourable judgment? Does the judge not know the law? Can the judge not read?

Well the judge does and the judge can, but that is not sufficient.

Litigants are not satisfied with a formal process; they want justice.

Hearsay evidence is, in general, not admissible in court.

Hearsay evidence is evidence of what some person, other than the witness, has said (on some other occasion), where the purpose of recounting what was said is to establish the truth of what was said (as opposed to the fact that it was said).

Some examples may illustrate this;

“The Defendant’s grandfather told me the Defendant was in Galway on the 1st April 2009, the day the burglary was committed in Grafton St., in Dublin.” – This is hearsay; the witness is intending to establish that the Defendant was in Galway and not in Dublin and, therefore that the Defendant is innocent.

“The salesman told me the car had done only 5,000 miles”. – This is not hearsay; the witness is intending to establish what the salesman told him, not to establish that it was true.

Why is hearsay evidence not admissible? Because it is unfair to admit it. If it is false evidence, by what means can the other party attack it or undermine it? Cross-examination will have little effect; the witness need only say, “…that’s what he said” in answer to questions suggesting that what was said was untrue.

There are exceptions to the rule, but a discussion of them here would be tiresome.

One example is sufficient; a witness may recount what a dying victim said to the witness – “ Jim stabbed me!”, for the purpose of establishing that that statement is evidence that it was, indeed, Jim who committed the crime and not somebody else.

(Jim being the victim’s husband).

This post is about Irish law; see HERE for material on English law.

Legal practitioners easily forget how arcane it is to do what they do. When the time comes they recognise one thing; giving evidence is intimidating.

It is intimidating even if the advocate asking them questions is inept and persists in making mistakes of various kinds (it happens).

Those mistakes may arise out of ignorance of the law of evidence and/or the necessary procedures to conform to that law.

Normally, the evidence for the Plaintiff is presented to the court first. The reason for this is that the burden of proof lies on the Plaintiff; he/she it is who is making allegations about the Defendant. The case is about those allegations, nothing else; (except where there is a counterclaim).

When all the evidence (from witnesses or otherwise) of the Plaintiff has been presented to the court, the Defendant will call his/her witnesses to rebut that evidence of the Plaintiff. That is, this will happen assuming the Plaintiff has made out a prima facie case. A prima facie case is one which, in the absence of rebuttal evidence from the Defendant, will entitle the Plaintiff to a verdict.

When a party calls a witness to give evidence, the advocate for that party is not permitted to “lead” the witness. That means that the questions put to the witness should not suggest the answer. Such questions are called “leading questions”. As a rough (but mistaken) rule of thumb, if the answer to the question is “yes” or “no”, the question is a leading question.

In practice, some leading questions are permitted. They are very useful to introduce non-controversial facts about the witness, for instance.

The examination of a witness by the advocate calling that witness is called “examination in chief”. It is more difficult to do this than it is to “cross-examine”. What the advocate must avoid doing, is to give the evidence himself/herself. A leading question has this effect; it suggests to the witness the evidence he/she should give.

Consequently, some witnesses struggle to answer questions in examination in chief, because they are surprised by the circumspect character of the questions. They come to life during the “cross-examination”.

“Cross-examination” is the process whereby the advocate for a party asks questions of the witness called by the other party. That advocate is not restrained in the form of the questions asked; leading questions are permitted. (Cross-examination is not bullying; bullying is not permitted).

To say that an advocate may ask leading questions is not to suggest that that, or any advocate, is completely free in the questions asked. Only relevant evidence is admissible in a trial; irrelevant evidence is inadmissible, therefore questions about irrelevancies are not permitted.

It is the job of the opposing advocate to ask the judge to disallow such questions. (Unless it is thought better to leave the opponent to drown in those irrelevancies).

Furthermore, it is the job of the Defendant’s advocate to, in due course, in cross-examination, give the Plaintiff’s witnesses an opportunity to comment on the case which the Defendant’s witness or witnesses will say in relation to the matters testified to by the Plaintiff’s witnesses. (The penalty for the Defendant if this does not happen can be severe).

When cross examination is finished the advocate who called the witness has a chance to ask further questions of the witness, but only to address new matters arising from cross-examination and requiring clarification.

The trial will proceed in this fashion with each witness being called and asked questions, first in examination in chief, then in cross-examination and then, maybe, in re-examination. Then the next witness is called.

The reason why cross-examination is so prominent in the mind of a witness is that the major purpose of those questions is to undermine the evidence given by the witness. This is not to say that that process will be successful; often it is not. In fact, cross-examination may “free” the witness to address the evidence again and deliver it more cogently and persuasively than first time around.