The Advocacy Lecture Series: Preparation for Interim Applications by Timothy Dutton QC Part 4: Questions and Answers Michael

Lerego (Speaker) Thank you very much Tim. What Tim didnt say was in the mega sort of litigation he was talking about what a leader actually requires is a hard working bright pupil who is going to be there at 5 Oclock in the morning or there abouts to help shoulder the burden of these tasks. Tim will, I think take questions, any one got any questions theyd like to raise, whos going to go, start off with any questions. Tim can I ask you Timothy Dutton, Q.C., Yes Terry. Terry One of the things that we say to our students is to be persuasive, any tips on how they could be persuasive in their oral advocacy..? Michael Lerego (Presenter) The question is how can the advocate be persuasive in all advocacy? Timothy Dutton, Q.C., (Speaker) In all interim applications the first thing is you, in my view, youre never persuasive if youre not master of the materials because you cant, you cant relax sufficiently to formulate words across a court room where youre worried that you havent mastered the materials. So I think in interim applications where you are likely to be, if youre an applicant the sole master of the

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materials, youre in an uniquely powerful position because nobody else knows them as well as you. Thats the first point, the second is you need to speak in the hurly burly of interim applications particularly in short, crisp, self contained sentences. If you say were here on an application for an injunction we want to freeze the proceeds of sale of 1 Acacia Avenue for 7 days, its pretty clear. So really the key is to delivering short, self-contained sentences which demonstrate your mastery of the material and which stand above the detail of the material and you descend later into the detail. And for example if I go back to the Steel Pressings Case. There was a whole range of exhibits in that case. So suppose youve got to show that he made the representation which lead to the shortening of the notice period, you would simply say he represented that he was not going to deal with or contact any clients during that one month period. That representation is evidenced by the note at page 57. Hes breached that representation or undertaking because hes made a hundred phone calls to clients during that one month period. At page 80 is the telephone bill and that shows you mere 80 client phone numbers being called in the period because by luck the phone bill was sent into his office address, what ever it happens to be. So you make a statement and you give a short reference to the material that you rely upon to get it. And I think actually same is true for the written material but those I think are some of the key things. Michael Lerego (Presenter) Yes, yes,..

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Member of Audience Can you give us some idea of the length and detail of skeleton arguments for a half hour interim application? Michael Lerego (Presenter) The question is length of skeleton arguments for a half hour application. Timothy Dutton, Q.C., (Speaker) And the half hour assumes two parties, 15 minutes each. For something like that if youre above 4 or 5 pages of one and a half spaced type you could be getting into trouble. It needs to be pretty short. I think in our chambers as you gather from what Michael just said we have a slight tendency, its known as the founding court you see, to write the book on the subject so that all the judge needs at the end of the day is to transpose your skeleton into a judgement. Now thats fine if youre doing a huge trial and a long case where he needs only to walk away with one document from a vast amount of material but if youre dealing with a 30 minute application, 4 or 5 pages it needs to be short and it needs to let a person whos got another 7 or 8 of those in the day get in his or her head very quickly what needs to be done. You can always, youve got 15 minutes to talk about it, you can get a lot in 15 minutes. Michael Lerego (Presenter) Yeah Jenny, Jenny (Member of Audience) Wondered if you had any other stories about or tips of dealing with judicial intervention?

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Michael Lerego (Presenter) Ah yes, judicial intervention is the question. Timothy Dutton, Q.C., (Speaker) Yes, sorry I should have spoken to you about this and I gave you some example about the bundle of exhibits that never got to me. Here is the key. If youve worked out the ingredients that I go back to at the very beginning. The, your cause of action, the order which you need and why you need it. Answering the question why you need it ought almost invariably to predict the judges questions. Judges intervene because they think that you have not covered in their mind a part, normally at interim application an essential part of what you need in order to get the relief you want. If therefore you think that youve covered every base of principle in your submission, you ought to anticipate the judicial intervention. So if we go back to the Steel Pressings example, I was very concerned in that case as to how a judge would react to the fact that we were coming ex parte after the expiry of the notice period and why we were seeking quite strong relief. If you work back from that, his concern is what is the cause of action that entitles me to give any relief, why have you waited until now to get it? What is the relief which you say you need in order to protect the business. So hell be asking questions like why have you waited so long, why is it coming before me now? That then informs how you address him in the first place. Were here two weeks after the notice period because information did not start coming back to our clients about these breaches until actually 7 days ago, I was instructed 6 days ago and weve been preparing this application over the last 5 days. Now that otherwise the intervention will come, why are you so

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late, that is in fact because you may not have thought about explaining that to him in the first place. Now if because of economies of time and scale a judge throws a question like that at you. If youve done the preparatory work correctly it wont come as a surprise. If you go for an ex parte application and youve waited weeks before making the application, the first thing the judge is going to ask you, why have you waited until now and so the first think youre going to say to him is weve not been able to come here until now because, dont wait for the question to come. And then you reassure him and you put his anxiety at ease. Now the fact is there will always be judicial interventions but the ones which hurt are the ones where you havent actually thought through the process. So if I go back to the solicitors purchase case, judge looked across at the other side and said why arent these undertakings which are offered on Friday good enough, thank you very much. The first submission that should have been made is there was a discussion on Friday to give undertakings, theyre not good enough because as opposed to going on about all sorts of interesting things about whats in the documents and the loan agreements which shes not interested in. Hes got a half an hour in which to solve all of this, why isnt the undertaking good enough. Now and that those questions are that you need to predict them, experience helps you predict them. Otherwise just physically when the question comes in

pause, wait for it to finish, never interrupt because sometimes if youve done the preparation you think, oh, I know the answer to that. Yes thank you, just let me finish. So you pause, you take your time, absorb it, quite often ones nervous in ones early years. Absorb the question, think about the answer

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and give it.

Now if you cant give it because theres a gap in your own

information, say, I am going to deal with it, Ive got the solicitor, Im going to take instructions and I will deal with it before we rise. Now thats on the whole not a situation one wants to be in but one cant, one isnt perfect, one doesnt always predict everything. And if you say that

because theres a gap in evidential gap or theres some problem with your case, do then deal with it, make a note as youre standing in front of the judge, make a note of the question of the answer that youve promised to give via your solicitors later or whatever it happens to be. And before the court

finishes say, your lordship asked this question, I havent dealt with it, Im going to deal with it now, if youve got the answer, if not when we come back after lunch well have the answer. But never leave answers; never say Ill come back to it later without explaining how youre going to do it. If ever, if possible always answer a question when its asked because the more you say oh well come back to that later and you hope it will disappear, the more the judge thinks this case is unravelling. Michael Lerego (Presenter) The chances are that if the judge asked the question you thought about it, theres going to be something in the skeleton arguement as well. cansatisfy, yeah, yes. Audience Member When youre giving your full and frank disclosure, how do you minimise the impact of something thats thoroughly against you? You

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Michael Lerego (Presenter) The question is how do you impact, minimise the impact of something that appears to be against you of which youre giving full and frank disclosure? Timothy Dutton, Q.C., (Speaker) The first point to make is if there is something against you, you and its serious. Frankly if theres something against you, you draw the judges

attention to it, point 1. You do not what ever happens if theres something strongly against you, you do not say theres this document on that page, has your lordship had a chance to read it? Thats a no no, in fact theres an authority saying its a no no merely hoping hes read it. So you take the document, and Im afraid beforehand, you work out why it doesnt damage or destroy the relief youre seeking. And you then have to spell it out to him. Now remember on a full and frank case its likely that the note of whats happened is going to go to the other side. If the other side see and the judge sees that youve been cogent enough to take them to what appears to be something very damaging rationally explain why that doesnt damage or destroy the application but that it is something which plainly will have to be born into account both on the granting of the relief and of course on the return date youre fine. The problem normally is not actually doing the exercise of rational reasoning or hoping it will be swept under the carpet, just confront it. I mean in the Steel Pressings case we had a whole lot of stuff against us. And eventually judges get bored by hearing the case against you, yes its alright, yes oh I know all that, then come back and argue all those points. So long as youve done it, youll be alright. There isnt and I cant just take pluck out of the air, you know a man who asserts hes honest and youre asserting

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hes dishonest, well thats hardly a surprise. You would take, you would say alright hes in this document that may show honesty but weve got 7 others which show he knew that what he was doing was dishonest and that this document may well have been a cover for the dishonest exercise. And I get that quite a lot in the solicitors cases where you have a veneer of proprietary that runs right across the top because you need to make honesty, something look honest to a regulator. Underneath you see actions going on which are inconsistent with honestly and then you say on the face of it the accounts appear to be in order, on the face of it he says that its a commercial deal, if you look at the deal it doesnt make sense. If you look at the warnings he had, he must have known that this was a dishonest deal and he continued nevertheless. But on the face of it he appears to have complied with

regulatory requirements for example. Michael Lerego (Presenter) Yes, sorry Adam. Adam How much detail in the skeleton? Timothy Dutton, Q.C., (Speaker) Theres no such thing as a golden answer to that question. No more than is necessary to achieve the result you need by the end of the hearing. Youre bound to need to say who the parties are, what the relief is you seek, what a brief explanation of the facts, where the documents are, which support that explanation to the facts and how you explain the assertions or the case against you. And then finally conclude with the relief which you need.

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You need to cross reference into your bundle, if youve just got a bracketing system with the reference that can make for much greater economy in the skeleton argument itself. Incorporating long screeds of documents which may not be necessary to read which can be dealt with just by a document reference number, just deal with it by a document reference number if you can. You put the key passages of a crucial piece of evidence in, if it has to be there, you know. If youve got a thoroughly lying dishonest witness and hes admitted I am a thoroughly lying dishonest witness, then on the whole its quite a good idea to put it in the skeleton argument and then give them the cross reference so they can read it again. Michael Lerego (Presenter) Yeah, yes Rupert. Rupert Is it generally better to refrain from flowery and emotive language, in civil advocacy? Michael Lerego (Presenter) Question, yeah, question was is it better to refrain from flowery and emotive language in civil advocacy? Timothy Dutton, Q.C., (Speaker) Yes the language you use must be appropriate to the case. If you have a thoroughly dishonest individual and if your case is fraud, then you will have to use language which is appropriate for fraud. On the whole, I live by a rule which is no adjectives or adverbs if I possibly can, alright because if you say Ill give you an example we did the Oxford exercise a couple of years ago and the senior advocate very able said to the judge, Mr Justice Mumby this was a

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grossly serious breach of contract.

The judge looked up and said what

difference does it make if it was a breach or a grossly serious breach and they got into a debate about whether a serious breach of contract had any consequence at all. If all he had said was this was the breach of contract, it has serious consequences for our clients, the consequences being bang, bang and bang, we therefore require interim relief, hed would have been fine. Its the use of adjectives or adverbs as a flourish is rarely useful. Apt

language, you know, if youve got somebody whose conducted series of frauds you can simply say the first scheme starting on the 1st of January, he was warned about it on the 10th, the second started on the 25th. 15 days after the warning. The third started on the 1st of February, two weeks after the second fraudulent scheme. And they continued at that pace for the rest of the year. Thats much better than saying this is a most grossly dishonest

individual because its doesnt, its merely adjectile, it doesnt actually, it doesnt help. Let the judge makes a value judgement for himself. Michael Lerego (Presenter) Yes. Audience Member I know youve spoken about skeleton arguments? How far do you go into the law pertaining to the names in a skeleton scheme? Michael Lerego (Presenter) How far do you go into the law in a skeleton argument, the law relating to the main dispute?

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Timothy Dutton, Q.C., (Speaker) Yeah, you need to set out only the legal principle or principles which its necessary for you to establish at the stage of the relief youre seeking right? Now in an injunction case and if you take the employee injunction case the law which you are deploying in the early phases of such a dispute, whether youre talking about a notice period, a month or six months is very close to the law which you would be deploying at the final hearing. For all of the reasons that weve, Ive been referring to. But if the case is one for recovery of a stolen car, youre not and the car was stolen the evidence is it was stolen and the only issue is should the defendant deliver it up. Well youre not going to spend much time on the law in such an application. This is his car, heres his document of title, the law on whos stolen something or who has wrongfully interfered with goods, one likes to think is understood by pretty much everybody. So its, it will depend obviously on the nature of the application but never think Im going into areas of law when I dont actually need them to get to the resolution of the interim application. It will bore the judge silly and he may think youre distracting from the real issue in the application. Michael Lerego (Presenter) Thank you. Timothy Dutton, Q.C., (Speaker) Pleasure.

Michael Lerego (Presenter)

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Thank you very much Tim for taking time out from which what as you can see is a very busy practice and thank you for giving us the benefit of your experience. Timothy Dutton, Q.C., (Speaker) Thank you.

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