In Young v Charles Church (Southern) Ltd. [1997] the Plaintiff was a self-employed labourer on a building site. He handed a long metal scaffolding pole to a Mr. Cook. He was turning away from Mr. Cook when Mr. Cook was fatally electrocuted as the pole touched an overhead wire. The Plaintiff suffered a mental illness as a consequence of the event.

In the course of the proceedings issued on his behalf,his solicitors received a letter from the Defendants’ solicitors saying;

“For the purpose of these proceedings and for no other, we confirm that the issue of liability for this accident will not be in dispute. For the avoidance of any doubt please note it will still be the Defendants contention that your client does not come within the class of persons entitled to make a claim for nervous shock and the issues of causation and quantum remain live”.

In those two sentences the Defendants at once admitted liability and denied liability.

By agreement, the issue of liability was tried as a preliminary issue. (When this happens it is only on the basis that the facts are agreed between the parties.) The trial judge found against the Plaintiff, who then appealed to the Court of Appeal, where he was successful.

For the Plaintiff, “fighting” did not require him to give evidence; the case was run purely on legal arguments. Although the judgment of the three-judge Court of Appeal was unanimous in his favour, the legal arguments were sufficiently cogent to defeat him in first instance (and to have attracted the Defendants’ lawyers to the course of action they took, in the first instance). (Not that the opinions of the lawyers of an opponent should be determinative of a Plaintiff’s actions).

(To read the judgments in Young, click on the name of the case at the top of this post).

Litigation lawyers fight. If a lawyer is not generally fighting, he/she is not in litigation. Sometimes the lawyer is fighting for a plaintiff and sometimes the lawyer is fighting for the defendant.

Some lawyers find they invariably fight for plaintiffs and other lawyers find they invariably fight for defendants. The distribution of business in the “legal market for services” explains patterns like this.

Some firms of solicitors have one client only; an insurance company, say. The requirement of an insurance company (or a bank), for legal services, is substantial.

The fighting takes place in the context of legal proceedings.

What is it like to be involved in legal proceedings?

The answer is not straightforward; after all, what is the answer to the question, “What is it like to be in a fight?”.

It invites the reply, “What kind of a fight?”

There is no comparison between a soldier coming in to land on OMAHA BEACH in Normandy, on D-Day 1944, and a brawl in the local pub. Yet both are “fights”.

Or, to take another example, consider Gary Cooper in “HIGH NOON” with his shoot-out on the Main Street and compare it with the reality of the WILD WEST; most shootings consisted of sneak assassinations from darkened laneways.

Perhaps the term “fighting” is wrong; perhaps “contest” is closer to reality, as a description of what the process is like. If so, the phrase “unequal contest” springs to mind. Many legal proceedings are unequal contests.

The reasons for the inequality are many. From a lawyer’s point of view, the problem may be like that of a chess player drafted into the chess game after the game has started. Fatal strategic decisions may have been made and the positions on the CHESS board now reflect that.

By whom have the fatal mistakes been made? Possibly the opponent, possibly the lawyer’s client.

Metaphorically speaking, assume the fatal mistakes have been made by the opponent but the game is underway in a five-star hotel and will last ten days or thereabouts. You have a winning position, but do you have the money to book a room in the HOTEL for ten days?

Whatever about the strategic errors on the board, the opponent will immediately perceive your lack of resources and drag the game out. Like HENRY COOPER, you (metaphorically) have a weak eyebrow. The opponent will punch you there, you will bleed (metaphorically), and the referee will stop the fight, in his favour.

Furthermore, prior to that, being Henry Cooper, you have knocked your opponent down; he pleads, (to gain time and recover), that his gloves are torn, and he needs them replaced!

Ryanair is not popular. For this writer, it’s enough to remember traveling to Venice and being dropped in Treviso. It was the “arrangement�? for the return flight that left everything to be desired.

Nevertheless, the Bar Council of Ireland should strike a memorial medal to the airline for its services to the legal profession.

Look at its latest litigation outing HERE.

It issued proceedings in the form of a Special Summons and got slapped down because it hadn’t proceeded by way of Judicial Review.

Is it possible that Michael O’Leary has a jaundiced view of Order 84 of the Rules of the Superior Courts as referred to HERE and HERE?

When and where and why did that happen?