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Oh what a tangled web we weave

 

I do love it when I learn something new.

This is a case decided by a Circuit Judge, Her Honour Judge Taylor, in a case where a woman had lied to a man as to whether he was the biological father of her child.  He was then suing her for deceit.

[I confess my ignorance, I didn’t know that you could sue someone for deceit. Helpfully, HH Judge Taylor sets out all of the relevant law, so now I not only know that the concept exists, but what you need to prove]

X v Y 2015

http://www.bailii.org/ew/cases/Misc/2015/B10.html

 

I can already hear, as I type this, the sound of readers ears pricking up at the idea of being able to sue for deceit.  [We have discussed before that you can’t sue for defamation for anything that someone says in Court or puts in a Court statement, and that a criminal prosecution for perjury is (a) difficult, and (b) not the decision of the victim, but of the Director of Public Prosecutions. So is suing for deceit a remedy? We shall see]

The law and deceit

45 Following the cases of P v B [2001] 1 FLR 1041 and A v B [2007] EWHC 1248 QB, followed in Rodwell v Rodwell [2011], it is clear that the cause of action in deceit may arise in cases such as this in a domestic context.

46 In A v B at para.43 Blofeld J set out the ingredients of deceit.

(1) a representation by words of conduct.  [Suess note, I think that is a typo and it should be ‘or’ conduct. meaning that you could give rise to a deceit action by semaphore, or more realistically that when asked a direct question the person nodded, shook their head, or put their thumbs up or some obvious gesture of that kind…]

(2) Secondly, that representation must be untrue to the knowledge of the maker at the time the representation was made.

(3) Thirdly, the maker must make the representation by fraud, either deliberately or recklessly, in the sense that he or she could not care whether the representation was true or not.

(4) Fourthly, the representation must be made with the intention that it should be acted upon by the claimant.

(5) Fifthly, it must be proved the claimant acted upon the fraudulent misrepresentation and therefore suffered damage.

 

In English

 

(1) that the other person said something

(2) that when they said it, they knew it wasn’t true

(3) that there was either intention, or recklessness that you might believe it

(4) That  they MEANT you to do something as a result of believing it, and that you acted on what the person said  (i.e you didn’t just believe it, that belief caused you to do something about it)

(5) That those actions caused you loss or harm

 

So, for the immediate question on your lips “If a social worker tells lies about me, can I sue them for deceit?”  I think that the fourth ingredient is the problematic one.  In order to sue for deceit, you need to show that not only was there a lie, but that you believed it. And that you did something as a result of believing it. If you never believed the lie, then you weren’t deceived.

You can only sue for deceit if the person successfully deceived you.  A lie is different to a deceit – telling a lie that you didn’t believe isn’t a deceit, it is an unsuccessful attempt to deceive.

[It might be possible to construct such a case – that the social worker told a lie about mum, dad believed it, dad did something as a result, and dad suffered loss.  Or I suppose the section 20 style case where a parent is told that it will just be for a few days and having signed the agreement never gets the child back]

 

In this particular case, the couple had made use of a fertility clinic. The man had had a vasectomy, but had taken the precaution of having his sperm frozen before the procedure. He had been told by the woman that she, with his consent, had used his sperm to conceive a child through the fertility clinic.  In fact, she had not. The sperm used had been another mans. DNA testing later proved that the child was not his.  The man had made maintenance payments to the woman for this child.

The woman’s case was that she had taken two samples to the clinic, one from the man and one from another person and that she had not known which sample was used – so she had not been honest with the man that there was a possibility that the child was not his, but had not lied to him because she did not know that he definitely was not the father.

 

The Judge held that the ingredients for a claim of deceit were all made out.

 

84. On the facts of this case where I have found there has been clear deceit and fraud in relation to the agreement, in my judgment it is right that the court order repayment of these sums which are not for the benefit of Z. The sum claimed in respect of these payments for maintenance to Y is £22,845 plus interest which has been calculated to date at £2,476 making a total of £25,321.

  1. Consequently, the sums that I award are the sum of £10,000 of general damages plus £4,000 in respect of the loss of earning capacity and the £25,321 inclusive of interest in relation to the maintenance of the property.

 

 

 

 

So, what IS the explanation for the huge drop in adoption decisions?

Following on from earlier blog post about the adoption stats

http://suesspiciousminds.com/2015/06/29/the-adoption-statistics/

 

 

[I coined the word ‘Jelfie’ today, to refer to the act of a Judge quoting themselves in a judgment.  To be even-handed, the fact that I am writing a post in which I link to my own post must be classed as a “Quelfie”  – or quoting/selfie. For shame, Suesspicious…]

 

So, you look at the graph and you see numbers of ADM decisions for adoption, and then you see those figures on the graph plummet, at exactly the same time that the Court of Appeal decided Re B-S and granted appeal after appeal after appeal. And those figures keep going down, but the astronomical drop is EXACTLY at the point that Re B-S came out.

That made me wonder. Just what DID cause that drop in the stats?

Is it that everyone in Local Authorities just got tired of adoption?

 

Is it Sarge?

Is it Sarge?

 

NO

 

Is it that as a result of the improvement in the economy that there were no longer any socio-economic problems that led to care proceedings?

 

 

Rosemary the telephone operator?  No way man

Rosemary the telephone operator? No way man

 

Is it anything at all to do with the Court of Appeal ?

 

 

Phenry, the mild-mannered janitor?

Phenry, the mild-mannered janitor?

 

 

COULD BE !

 

 

[Yes, I did do a blog post, just because I thought of a Hong Kong Phooey gag. That’s how I roll…]

Recommendation :- New blog written by a parent

 

I would like to recommend Surviving Safeguarding to all of my readers.

http://survivingsafeguarding.co.uk/

 

It is written by a mother who has been through the family justice system and after a lot of struggle and hard work has been reunited with her child, and now spends time helping others. She therefore gives a very different perspective than the other child protection blogs written by professionals can give, and she’s also a very gifted communicator.

Please give her writing support and comments – I think this blog has the potential to be an amazingly helpful resource for parents, and also for social workers and lawyers who want to connect with how the process can feel for a parent caught up in it.

 

Is the system failing parents?

Unlike most newspaper headlines that pose a question, to which the answer turns out to be “no”, this particular article from the Guardian ends up with the answer “yes”, and I would agree with it.

http://www.theguardian.com/society/2015/apr/25/are-we-failing-parents-whose-children-are-taken-into-care

 

I do complain often about how the mainstream press report on care proceedings, but this piece is a good example of how it can be done properly.

Firstly, when reporting on a particular judgment, the piece provides a link to the judgment itself, so that the readers can if they wish read the source material.

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B158.html

Second, the account of the judgment holds up as being accurate even after you’ve read the judgment itself.

And third, rather than a single source story (which is specifically against the code that journalists have signed up to), this particular journalist, Louise Tickle, has taken the trouble to go and speak to a variety of sources to inform the story.  And she has picked smart people (like Cathy Ashley of Family Rights Group, Karen Broadhurst and the Pause project) to speak to.

The really sad thing about this case is that it is not a unique and unusual outlier – it isn’t the story of a dreadful miscarriage of justice, or the truth coming out following dogged cross-examination, or a Local Authority being put to the sword for mistreatment.

It is an example of a case that people working within the system will see week in and week out – a mother who is very damaged by her own experiences and upbringing, who needs proper therapeutic help to address those difficulties and who didn’t get that therapeutic help in time to make a difference for her care of her child, with the effect that the child can’t  be with her.  This sort of thing happens all the time, up and down the country. The fact that it happens all the time shouldn’t immunise us to the pain involved and the sense that it must be wrong.

 

Whilst the Judge, His Honour Judge Wildblood QC, carefully pointed out that this was a mother who had a need to change substantially and was not going to change within the time that the baby needed her to, he went over and above the usual expression of sadness and into not only a critique of the system but an exhortation that the system must do better.

 

This case is another example of how important it is that, if therapy is needed, it is obtained at an early stage. Time and time again I see a process whereby the following occurs: a) a Local Authority intervenes and begins making assessment of a family; b) months later proceedings are issued; c) an order is made for some form of expert evidence to be produced (often a psychological report); d) months later the psychological report is obtained which says, invariably and utterly foreseeably, that someone within the family needs therapy and e) it is stated that, by then, the beneficial effect of therapy would be ‘outwith the timescales for the child’. In this case, for instance, it would have been perfectly obvious to all that, when the mother was referred before birth, she was a prime candidate for therapy. If therapy were to be obtained at an early stage such as that there is at least a prospect that outcomes in some cases might be different. I have therefore already set up arrangements in the New Year to look very carefully at how we facilitate and access therapy in this area, with a view to doing my utmost to encourage much earlier therapeutic intervention if possible. I ask for as much help as possible with that endeavour.

 

The Judge is completely right here. I’ve been saying for many years that the system was geared up to get and pay for a Harley Street diagnosis but left the business of obtaining  treatment to a model of  stand outside Superdrug looking sad and hoping the staff take pity on you.  {It’s even worse now, since we don’t even have the Harley Street diagnosis money any more to redirect where it always should have been going}

It’s really easy to wring our hands and say that the system is the system and what can you do. It is even easier to say that when the pragmatic reality is that Local Authority budgets were cut massively in the current Parliament and are set to be cut still further in the next one, whoever is in charge.  Social Services isn’t education and it isn’t health, so there’s no budgetary ringfencing – it will have to take its share of the cuts and some of health and education’s share into the bargain.

I like that His Honour Judge Wildblood QC isn’t satisfied with hand-wringing and wants to do something about it. I very much hope that his scheme works, and I hope that it works so well that versions of it are rolled out nationally.

As Louise’s article touches on, there’s precedent for that. District Judge Crichton saw so many care cases with drugs and alcohol being a feature that he took it upon himself to devise and champion a specialist Family Drug and Alcohol Court, and that model is now being rolled out to other areas in the country.

As George Bernard Shaw said “The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man”

I have no idea at all whether His Honour Judge Wildblood QC is an unreasonable man – I’m sure he is instead a deeply reasonable one. But if he is choosing to be unreasonable about a system that can see when a parent is crying out for therapeutic intervention but doing nothing about him, then all power to him.

I’d love to see some legislation that insists that where a Local Authority issues care proceedings, they must arrange and provide funding for therapy for the parents; it must be more economically sensible and morally sensible and less costly in terms of pain and trauma to try to fix what is wrong with a parent rather than simply waiting around for them to have the next child and starting the whole process off again.  (I’d love also to see that legislation backed with some government funding to pay for it, but although I am an unreasonable man, I’m not an unrealistic one)

Yes, there’s far more to tackle in family justice than this one issue of providing therapy for those who need it (rather than them trailing off to see their GP who at best puts them on a two year waiting list), but it would be a starting point, a base camp – and a message that there’s more to do to make a family justice system really be about both families and justice – rather than at the moment, where it is all simply about “system”

 

[I feel like I ought to put a You-Tube clip of “My name’s Ben Elton, good night” here, as I got a bit student ranty there]

Let’s watch out for Louise Tickle – this is damn good journalism, and it would be nice for mainstream writing on family justice to have this blend of outrage and factual accuracy.

Fax it up, m’lord

 

I was listening to Radio Five this morning, to a debate on the NHS and at one stage an expert told the listeners that the NHS was far too behind in modern technology – by way of disparaging illustration he said “Most GP’s are still using faxes, for goodness sake”

Which reminded me of the apocryphal story of the High Court Judge sitting in a Court far away from London, reaching the end of the case and realising that he has left all of his notes and preparation for delivery of his imminent judgment back at his London home. He mentions this dilemma, and someone helpfully suggests, “Fax it up, m’lord”  – to which the Judge sadly responds, “yes, I’m afraid it rather does”

And that led me to think that anyone who began practicing law in the last ten years would probably not understand that joke.  We have a fax machine in our office, but I can’t remember the last time anyone used it in anger. All that I ever see come out of it are single page spam adverts – invariably telling us that if we have had an accident in the workplace, we could get compensation – hugely informative stuff of that type.

When I first started working in law, which was a long time ago, I was at the beck and call of the fax machine. I don’t know that I want to give precise dates, but by way of indication my Local Authority was using a junior barrister named Cherie Booth and we were dimly aware that her husband was an MP but had no idea who he was.

 

The fax machine and I were very close. Our first version had no programmable numbers, you had to dial them all manually. And it didn’t use ordinary paper, but some horrid shiny stuff akin to the toilet paper in schools at the time (and possibly prisons now).  When we received our evidence, we had to fax this out. It had to go to the Court, to three firms of solicitors (mum, dad, Guardian) and to our counsel. So each piece of final evidence, I, as the junior dogsbody, had to fax out five times. I was junior dogsbody for eight lawyers at the time, so there was a LOT of final evidence, most of it having to be sent out on a Friday afternoon.

And the fax couldn’t send and receive at the same time, so if we had one lawyer with evidence ready to go out, and another waiting to receive the faxed copy from the social worker, that would be a juggling act with the social services dogsbody and I on telephones “Can I start sending it now?”  “Just wait, ten seconds… oh damn, the one to Thimbleby Fisher has jammed again”

If you aren’t old, like me – for example, my colleague Gimson, who does not believe me that we didn’t always have stuff on television whenever you turned it on and that for about five years daytime television consisted of Pebble Mill then three hours of “Pages from Ceefax”, it probably seems ridiculous to think that I was spending close to eight hours a week doing nothing other than feeding paper into a fax machine and swearing copiously when two pages went through at once.  I had to do this, because there was no way of sending these documents from one computer to another.

The social worker would write their statement out by hand, take it to a typing pool, a typist would type it up, the social worker would give it to the social services dogsbody, they’d fax it to me, I’d take it to the lawyer who would check it. If it was okay, then I would fax it out to everyone.  And then when they got it, which would often be at about seven pm, because I’d be doing this for eight cases on a Friday, they’d have to fax it out to their counsel.

And as archaic and dreadful as that sounds – this was an improvement. This was cutting edge tech – it was instantaneous compared to the system that had been around before I started, when you’d be DX-ing or posting it out and it would arrive a day or two later – usually just after you’d left for Court on the case you needed the document on.

None of us had computers on our desks – I remember that coming in, and many of the lawyers being mortified that this was taking up space on their desk where their files and notes would have been. When we finally got email, it meant that we no longer had to have the social work statements faxed to us, and that we could make changes and amendments to documents without having to get a typist to do it.   (It also ended one of the other curiousities, which was that I was keeping an index for all of those cases, which I was doing by making handwritten annotations to the typed index as new documents came in, and then getting it typed about once a month – if the case was going wrong, I’d be squeezing more and more annotations into a tiny space).

But we still couldn’t send documents out by email, because most of the other solicitors didn’t have it straight away.

I can’t really imagine doing the job now without a computer, being able to see a document and edit it and perfect it and send it back and forth until it is just right, then simply send it out to everyone who needs to see it in a task that takes less than 30 seconds when it used to take an afternoon. I can’t really now, even after such a short time, really get straight in my mind what it was like to only be able to look at your emails if you were sitting at your desk – to not be able to read them on the way to Court or whilst waiting for Facts and Reasons. And that’s a change of only the last four years or so.

The really odd thing of course, is that without blackberries, and email, and computers, and word processing – without even photocopiers, the lawyers in the early days of the Children Act got all this done – and they actually did it in shorter timescales and with less delays than we manage now with all of our assistance. That’s rather like learning that Formula One cars in the 1930s were faster than modern ones (they weren’t)

I wonder what is coming in the next few years, and how it will make our lives easier, but how as Parkinson’s Law shows us, work expands to fill the time available to do it.

I’ve been reading a book called Future Crimes, by Marc Goodman, which is about incredible advances in technology and the opportunities that these bring, and also the threats that they may pose. It isn’t an alarmist book – every story that the writer tells, he is able to show a real-life example where this has happened (often where hackers are demonstrating weakness in things like GPS, drone missiles, pacemakers, hearing aids, central heating controls, by hacking them and taking them over as proof of concept).  It was a great read, and frankly I could devote the blog for the next month to quoting you individual stories from it – there’s something astonishing on every page. (Paypal’s privacy policy contains more words than Hamlet… how one hacked tweet knocked 20% off stock prices in America for a morning, allowing the hackers to profit by shorting stocks, Target emailing a 14 year old with discount vouchers for maternity items leading to her father writing them an angry letter only to send another one two days later  saying that unknown to him she was pregnant – Target’s shopping algorithm knew she was pregnant based on purchases of things like unscented moisturiser before the girl herself even knew)

http://www.amazon.co.uk/Future-Crimes-journey-technology-survive/dp/0593073657/ref=sr_1_1?ie=UTF8&qid=1429206768&sr=8-1&keywords=future+crimes

A heartbreaking case of staggering genius

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

350 pages – a historical precedent

 

It is my duty as a lawyer to disclose the existence of material which may aid the other side or may harm my own case. So even as an active opponent of Practice Direction 27’s descent into “Micromanaging whilst Rome burns”,  when I come across a historical precedent that not only aids the President but provides a terrifying punishment, I’m afraid that I have to share it.

 

This comes courtesy of Lowering the Bar

The chancellors of those days were busy administrators who would stand no academic nonsense: Lord Chancellor Ellesmere in the reign of James I ordered that the Warden of the Fleet should lay hold on an equity pleader who had drawn a replication of 120 pages where 16 would have done, “and shall bring him unto Westminister Hall … and there and then shall cut a hole in the middle of the same engrossed replication … and put the said Richard’s head through the same hole … and shall show him at the bar of every of the three courts within the Hall.”

Alan Harding, A Social History of English Law (1966)

 

Doing a quick search, the case referred to is Mylward v Weldon 1596 and is actually true, not made up.

In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136; [1595] EWHC Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie reply) of “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered: “…that the Warden of the Fleet shall take the said Richard Mylward… and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet…”

 

So perhaps we will find the streets of London choked with local authority lawyers walking around with their heads through ruffs/sandwich boards of their own bundles.

In the case being dealt with by Lowering the Bar http://www.loweringthebar.net/2015/03/judge-criticizes-behemoth-pleadings-.html

Here are some words & phrases that you really don’t want a judge to apply to anything you file:

  • sprawling
  • behemoth
  • surplusage
  • larded with
  • brims with
  • masquerading as
  • voluminous
  • breathtaking
  • madness
  • chokes the docket
  • intended to overwhelm
  • labyrinthian prolixity of unrelated and vituperative charges that defy comprehension
  • sanctions

U.S. District Judge William Pauley used all of those on March 24 in this order, although that list combines objections he directed at both parties. Saying the case exemplified a “troubling trend toward prolixity in pleading,” he did rule on the motion to dismiss that was before him but made it clear he wasn’t putting up with any more of this.

 

 

[I must confess that most of these I’ve never heard of, though I got the sense of it from ‘masquerading as’ ]

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