A BARRISTER OF “GOOD JUDGEMENT”: WHEN THE PERSON WHO USUALLY DOES THE CROSS-EXAMINING IS IN THE WITNESS BOX

The judgment of Mr Justice Jay in Torrance v Bradberry [2020] EWHC 3260 (QB) is one that should be read by every practising lawyer. It is a case of a lawyer as defendant, being accused of negligence in their conduct of an action.  It highlights the difficulties both of bringing an action against an advocate and of an advocate giving evidence in relation to a case they have conducted several years previously.

 

 

 

“We all know that there are barristers who are good at pleasing clients, those who appeal more to judges, and those who are adept at both. We also all know that there are very able barristers with little or no judgment, barristers who may not be so strong intellectually but with judgment in spades, and barristers who take every point indiscriminately. And I could go on”

 

THE CASE

The claimant was convicted after a trial of a sexual offence where he was represented by the defendant barrister.  After an appeal a re-trial was ordered and the claimant was acquitted at this re-trial. He brought proceedings for negligence against the defendant alleging that their initial defence at the first criminal trial was negligent.  The claimant was unsuccessful in establishing both negligence and causation on the part of the barrister.

 

THE PROBLEMS OF A REMOTE HEARING

The judge addressed the problems of a remote hearing.

  1. The trial was conducted with the agreement of the parties across the medium of Microsoft Teams in circumstances which were sub-optimal. This has meant that the hearing took longer than perhaps it should have done, but from the outset I took the view that I would and should do nothing to speed things up. The sensitivities of this case were and are evident: a man eventually acquitted who passionately believes that he was let down by his lawyers; a barrister whose professional reputation is on the line. Although the parties may consider that they have been deprived the benefit of a trial within a proper court room, I hope that they feel that I have done my best to ensure that the process has operated as smoothly as possible.

THE DIFFICULTIES IN BRINGING A NEGLGIENCE ACTION IN THIS CONTEXT

The judgment contains a detailed review of the legal principles.  The burden on the claimant is summarised here.

  1. In my judgment, Mr Ben Smiley on behalf of the Defendant was quite right to emphasise the difficulties the Claimant faces. The Claimant must show that what the Defendant did, or failed to do, was “quite plainly unjustifiable” or “blatantly wrong”. When it comes to decisions she made, or did not make, in court the law must have regard to the pressurised environment and the need to make rapid decisions. When it comes to decisions made, or not made, outside court the legal test may not fluctuate but the context is less forgiving. A barrister must act in accordance with her instructions, interpret them properly and explain her advice to her client, but it is not incumbent on her to take every point a client may wish. Furthermore, in the present context of professional liability in the realm of tort, it is not sufficient for a claimant to say that “my barrister ignored my instructions”. What must be demonstrated at all turns is that what the barrister did, or failed to do, was blatantly wrong. Ignoring instructions may well be blatantly wrong, but by no means always.
  2. The issue of hindsight must also be addressed. The difficulties that the Claimant faces cannot be overstated, and the answer to every criticism that is made here cannot be: the court has the advantage of hindsight. However, it is the task of the court in a case such as this to attempt a degree of cognitive empathy. Sitting in the gentle calm of one’s room at the Royal Courts of Justice, having spent many hours pondering the minutiae of quite a complex case with the assistance of able counsel, runs the risk of over-dissection and over-analysis, both of which borne out of greater time to reflect than was available to the Defendant and the knowledge of all that has happened both before and since.
  3. One aspect of the jurisprudence that requires some attention is the difference between mistakes, errors of judgment, and negligent errors. The authors of Jackson & Powell (including, I note, Mr Smiley) appear not to be convinced that barristers should be treated in any different way to solicitors, or I would add, doctors: see paras 12-023 to 12-028. It is debatable whether there is a difference between the Bolam test in a clinical negligence setting and the “blatantly wrong” test that applies to barristers, at least in a forensic as opposed to a purely advisory setting. What is clear on the authorities is that barristers can make mistakes which are not negligent and that they can make judgmental errors which are not negligent. The substance matters more than the taxonomy. A claimant can only succeed if the mistake, or error, whether by commission or omission, is deemed to be blatantly wrong. This is a situation where adverbs matter.

THE DIFFICULTIES IN GIVING EVIDENCE IN THIS CONTEXT

The judge considered the defendant’s evidence.
  1. I was expecting the Defendant’s understandable nerves and anxiety to show when she started to give her evidence, but there was no sign of these. The Defendant came extremely well-prepared. She had an encyclopaedic knowledge of the voluminous documentation in this case, and every detail had been considered in advance. If a professional woman’s judgment is under attack, that is no more than elementary prudence. It meant that the Defendant was well-equipped to deal with Mr Edwards’ cross-examination, which was at times robust, although always courteous.
  2. The Defendant gave her evidence in a direct and confident manner, and very soon relaxed into the cross-examination. She answered “yes” and “no” where appropriate, and only occasionally took up the cudgels of advocacy on her own behalf. The Defendant was a good and credible witness whose evidence I can largely accept.
  3. The extent to which the Defendant was an entirely reliable historian merits consideration. That must come as no surprise to anyone. These events occurred more than seven years ago and as a thought experiment it is a useful exercise to try and remember the details of difficult cases years after the event. The risk of subconscious reconstruction, rather than accurate recollection, is obvious. Mr Edwards cross-examined the Defendant on the basis that her notetaking and/or note retention was substandard, but in virtually all respects his point had no merit. The Defendant has retained notes of high quality. The Defendant accepted that she did not take notes of her conferences and exchanges with the Claimant outside court, or at least there is no evidence that she did. The BSB Code of Conduct mandates that notes are taken and retained, but when it comes to spontaneous conferences in and outside court I have to say that this rule is more honoured in the breach than the observance. I cannot criticise the Defendant for that. However, when asked by Mr Edwards how she could remember what took place at these meetings if she retained no notes, the Defendant countered that it was all “in her head”. In one sense that was correct, because if it were anywhere it was “in her head” and not in a notebook; but I think that on reflection the Defendant would have to agree that her answer was ill-considered. Without a perfect memory, and without a note, the Defendant must be struggling to remember exactly what was said over seven years ago now.

 

A BARRISTER OF GOOD JUDGMENT

The judge assessed the judgment of the defendant barrister.
  1. The final general point that must be made about the Defendant is whether I think that she is a barrister of good judgment. We all know that there are barristers who are good at pleasing clients, those who appeal more to judges, and those who are adept at both. We also all know that there are very able barristers with little or no judgment, barristers who may not be so strong intellectually but with judgment in spades, and barristers who take every point indiscriminately. And I could go on.
  2. My overall assessment is that the Defendant is a barrister of good judgment. That is how she came across when she gave her evidence, and snippets of this are apparent in the attendance notes. The Defendant’s closing speech was also well-judged. No pyrotechnics maybe, but balanced and persuasive, and clearly attuned to what she felt would go down well with this jury. I asked a number of questions at the end of the Defendant’s evidence in order to deepen my apprehension of the level and quality of her judgment. She answered those questions well. In particular, I asked her whether she felt, given the way the trial had gone, the Claimant should have been acquitted. The Defendant said that she did, and her answer was clearly honest and balanced. She said that the Claimant had given his evidence well and that AB, despite all her sobbing, at times came across as awkward and snappish.

THE CLAIMANT FAILED TO ESTABLISH BREACH OF DUTY AND CAUSATION

The judge found that the claimant failed to establish breach of duty.  Further the claimant also failed to establish causation.

DAMAGES FOR LOSS OF EARNINGS

There is an interesting section on the claimant’s claim for loss of earnings.
  1. In the circumstances, the Claimant having lost on breach of duty and on causation, I will be brief. I will set out my conclusions and some succinct supporting analysis.
  2. Having regard in particular to AXD v Home Office [2016] EWHC 1617 (QB)Popat and Rees v Commissioner of Police of the Metropolis [2019] EWHC 2339 (QB), I would have awarded £65,000 in respect of loss of liberty on the basis of 100% recovery. I accept the Claimant’s evidence that he was subjected to very unpleasant experiences which he did not report at the time. He lost a lot of weight in prison owing to anxiety and depression. However, there is no medical evidence to support the contention that the Claimant has had full-blown PTSD (as opposed to some symptoms of PTSD), and Mrs Rutherford confirmed that her son has been much better since 2017. I also pay some regard to the fact that this is a professional negligence case rather than an action brought against an emanation of the State.
  3. The Claimant’s earnings before January 2013 were relatively modest. I cannot accept the argument that regard should be had to self-employed receipts which have not been declared. The Claimant’s counselling and managerial roles had not been recent. At the time of his arrest and conviction, the Claimant could be fairly described as long-term unemployed, not having worked since December 2009. In the second trial the jury were told about the Claimant’s cleaning business. It was not making any money.
  4. For the period of his incarceration, I would have awarded the Claimant damages calculated on the basis of £15,000 net per annum.
  5. After his release, the Claimant was employed in what appears to have been a health and safety role in the building trade and/or a labourer, earning at the rate of £32,000 gross per annum. He has never received more lucrative employment. The Claimant had filed a witness statement from Mr Adrian Davies which claimed that he was offered employment at the level of £40-45,000 p.a. which his conviction prevented him from taking up. Mr Davies did not attend trial to give evidence. He had made no reference to this alleged job offer when he gave character evidence for the Claimant at his third trial, nor is it clear why this offer was not available upon his release. There is nothing to support this offer beyond the Claimant’s assertion. No relevant documents have been disclosed. There are issues concerning the existence of Mr Davies’ company. I find as a fact that no job offer was made by Mr Davies.
  6. I received a mass of evidence and submission about CRB checks and DBS enhanced certificates. It was argued that the absence of a “clean” enhanced certificate was the reason the Claimant failed to obtain employment in the field of counselling. However, the Claimant’s evidence was in a state of some disarray. It transpired that he did not in fact apply for any employment which required such a certificate. When it was discovered this year that the information on the certificate was incorrect, the Claimant did nothing to rectify the matter. The certificate could probably contain some limited information about the Claimant having been arrested and charged for a sexual offence, but the Defendant was not responsible for either of those things. Nor was she responsible for the errors in the certificate or the failures to correct them, on whosever door that lay.
  7. The claim for retraining costs is inadequately evidenced and cannot be supported in the light of the Claimant’s acceptance that some of these costs have not been incurred by him.
  8. The unfortunate reality for the Claimant is that his claims for financial losses are in disarray. That being said, I am not altogether comfortable with the notion that the Claimant should recover absolutely nothing for loss of earnings after his release from prison, either past or future. This discomfort is not altogether allayed by the twin considerations that the Claimant had not been working since December 2009 and did manage to secure remunerative work after his release from prison. It is arguable that he qualifies for an award for loss of earning capacity under the principle first enunciated in Smith v Manchester Corporation [1974] EWCA Civ 6. But this point was not argued and cannot therefore be taken any further.
  9. On the basis of full recovery and before any discount for the loss of a chance, my award would have been based on the following figures: £65,000 (loss of liberty) and approximately £26,000 (for lost earnings whilst in prison). Should the need arise, the parties can perform the necessary arithmetic.