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© Gordon Exall, Exall Legal Training, Civil Litigation Brief, 2013-2026.
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I write as a solicitor who for the entirety of my 50 year career has appeared in courts at all levels – from magistrates courts to House of Lords (now Supreme Court). Since 1997 I have been a ‘solicitor advocate’ (and therefore entitled to appear in all levels of courts, and no need to wear a wig, which confuses ushers in the Royal Courts of Justice). Throughout my career my appearances have been, mostly, where other parties have a barrister. I appeared in cases which, generally, I have prepared myself. Barristers for other parties have often come in in the last few days.
My frustration is frequent, where a judge (often a former barrister) has tolerated as ‘evidence’ submissions from a barrister. He or she might have prepared the case differently, or might have included material (documents or evidence) which is just not there. At best that barrister’s ‘evidence’ is hearsay – what a client or instructing solicitor – has told the barrister. It should not be given any time as part of a fair trial.
Mr Jarvis’s appeal should have been allowed, with costs against the defendants; and the case sent to another judge on both parties filing statements setting out the facts of their respective cases; and recording in some sort of separate document (called – if lawyers are involved – a ‘skeleton argument’) which sets out argument on law (if there is any).
It may be worth suggesting the following summary of terms here:
Statements – are of facts relevant to a case and known to the party who asserts the truth of the statement
Pleadings (rare in family cases, since cases are ‘pleaded’ according to forms) – a summary of the facts which in law represent a parties’ case, and which – when replied to by a defendant – enable the parties and the court to define the issues in the case
A skeleton argument (only known since the 1980s, and then only in the Court of Appeal) summarises a party’s argument applying the law to the facts and legal principles which arise in a case and filed shortly before any hearing (final or interim)