NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES (Talk at 5pm on 16 October 2017) DUTIES OF ADVOCATES TO THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN C O N T E N T S Pages The Advocate’s Oath ……..………………………………………………………………………… 1 The Manx legal profession ………………………………………………………………………… 1 - 5 The Advocate’s duty to assist the court ……………………………………………………... 5 - 7 R v C ………………………………………………………………………………………………………. 8 - 15 Seeking to withdraw from a case ………………………………………………………………. 15 - 20 Assistance to the court …………………………………………………………………………….. 20 - 24 Nigel Teare’s lecture on The Advocate and the Deemster …………………………….. 24 - 26 Concise skeleton arguments ……………………………………………………………………… 26 - 33 Geoffrey Ma’s lecture on The Practice of Law : a Vocation Survives Amidst Globalisation ……………………………………………………………………………………………. 33 - 35 Unnecessary documentation …………………………………………………………….……….. 35 – 39 A useful Indian authority ………………………………………………………………………….. 39 - 40 Other authorities ……………………………………………………………………………………… 40 - 43 Request clarification of judgment where genuinely necessary .……………………… 43 Draw up draft order …………………..…………………………………………………………….. 43 - 45 Stand up to the Deemster ….……………………………………………………………………… 45 - 46 Disclosure duties ……………………………………………………………………………………... 46 - 53 The new litigation culture: expedition, proportionality and co-operation not confrontation ………………………………………..……………………..…………………………. 53 - 63 Recusal applications ……..…………………………………………………………………………. 63 Pressure ..………….……………………………………………………………………………………. 63 - 64 Lord Neuberger’s lecture on The Future of the Bar …………………………………….… 64 – 68 Rule of Law: special duty ………………………………………………………………………….. 68 - 71 Further reading ………………………………………………………………………………………… 71 - 72 DUTIES OF ADVOCATES TO THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN The Advocate’s Oath 1. By his or her oath an advocate swears that the advocate “will truly and honestly demean myself in the practice and knowledge of an Advocate to the best of my ability.” This oath dates back to the Attorney’s Act 1777 and focuses on two crucial elements of the practice of an advocate. Honesty and knowledge. The Shorter Oxford English Dictionary defines “honestly” as in an honourable or respectful manner; worthily, decently with upright conduct without fraud, by honest means, sincerely, fairly, openly. “Demean” is used in the sense of behaving and conducting oneself and dealing with others in a specified way. The Manx legal profession 2. In Appleby (Isle of Man) LLC v The Isle of Man Law Society in my capacity as Visitor of the Society in a decision delivered on 21 March 2014 I stated: “The Manx legal profession 34. Sometimes, in the fast moving modern global commercial world where financial targets and the pursuit of profit appear to dominate centre stage, we need to pause and remind ourselves that the legal profession is a profession. It is not simply a money generating business. It is far more important than that. Independent advocates providing properly insured legal services are important to the maintenance of the rule of law in a civilised society. Members of the Society which comprise the Manx legal profession provide legal services over a wide range of matters to both local and international clients. That is in the public interest. 35. We also need to remind ourselves that it is important to the future of the independent Manx legal profession and indeed the Island generally that all members of the Society try to work positively together for the general good of the Society and the Island. Sometimes if you are a member of a society you have to do something which you may perceive is not in your own personal interests and which may impact adversely upon you financially but is necessary for the greater good of the society of which you are a member and the interests of the public which the society serves. All members of the legal profession must on occasions put the interests of the legal profession as a whole and indeed the interests of the public over and above their own perceived personal interests. A classic occasion when that needs to happen is when members are dealing with professional indemnity insurance and the Master Policy. 36. A young Marx in “Reflections of a Young Man on the Choice of a Profession” in 1835 (referred to in Karl Marx and Frederick Engels Collected Works Lawrence & Wishart 1975 volume 1 pages 3-9) stated: “We must therefore seriously examine whether we have really been inspired in our choice of a profession … It is not only ambition which can arouse sudden enthusiasm for a particular profession, we may perhaps 1 have emblellished it in our imagination, and emblellished it so that it appears the highest that life can offer. We have not analysed it, not considered the whole burden, the great responsibility it imposes on us… And if then our enthusiasm still persists, if we still continue to love a profession and believe ourselves called to it after we have examined it in cold blood, after we have perceived its burdens and become acquainted with its difficulties, then we ought to adopt it, then neither does our enthusiasm deceive us nor does overhastiness carry us away … But the chief guide which must direct us in the choice of a profession is the welfare of mankind and our own perfection. It should not be thought that these two interests could be in conflict, that one would have to destroy the other; on the contrary, man's nature is so constituted that he can attain his own perfection only by working for the perfection, for the good, of his fellow men … History calls those men the greatest who have ennobled themselves by working for the common good … If we have chosen the position in life in which we can most of all work for mankind, no burdens can bow us down, because they are sacrifices for the benefit of all; then we shall experience no petty, limited, selfish joy, but our happiness will belong to millions, our deeds will live on quietly but perpetually at work, and over our ashes will be shed the hot tears of noble people.” 37. One does not need to subscribe to Marx’s subsequent Communist Manifesto to appreciate the inherent good sense in members of a professional society acting not exclusively in their own personal self interests but for the greater good of the society of which they are members. 38. Cains in its letter of 8 February 2012 to the Society state that “Increasingly we see ourselves as internationally focused. In that regard, as you are aware, we no longer undertake Isle of Man general practice work other than on an exceptional basis” but Cains importantly and responsibly reveals its community spirit and social conscience in respect of the Master Policy when it adds: “Cains is also aware of the social utility aspect of the [Master Policy]. It may create capacity for a small number of member firms who primarily undertake work which assists the disadvantaged in our community. Cains would recognise a reasonable degree of obligation to support such firms in the event capacity issues arise due to the [Master Policy] becoming no longer viable.” 39. Lady Hale the Deputy President of the Supreme Court of the United Kingdom and a lead member of the Judicial Committee of the Privy Council (our court of final appeal) at a speech delivered at the South Bank University on 30 October 2013 referred to legal work conducted by those for the most disadvantaged in society and stated: “The problem is greatest in those areas of law which are probably most attractive to the idealistic young. There have always been students who go into the law because they want to make loads of money and have their sights set on the more lucrative areas of practice from the outset. And it may be that some of those areas are not feeling the pinch in the way that publicly funded work is doing. But most of the young people I meet want to become human rights lawyers or criminal advocates, rather than 2 conveyancers or commercial lawyers. Most of them have not heard of transactional work (although of course they soon will if they go to the one of the universities targeted by the big city firms). Which brings me to the other great disappointment of my declining years - the steady and now precipitous decline in the legal aid and advice scheme which plays such an important part in securing genuine access to justice for all… I wish I could see a way ahead in these difficult days. I understand how difficult it is for the government to bring expenditure on legal services under control without taking drastic steps like these. I salute the courage and determination of the young legal aid lawyers who are bent on continuing to provide a service to the poorest and most disadvantaged in our society and also on promoting a more diverse and socially mobile legal profession.” 40. The Review Team engaged in the Scope of Government reports in 2012 at paragraph 7.22 of their comments in March 2012 identified the following as vital to the continuance of society: “security, law and order, justice.” The Review Team accepted that these “may represent some sort of irreducible minimum.” The Review Team stressed that any proposed economies should not “Prejudice law and order, justice or the access to justice.” Executive government, supported by Tynwald, have wisely accepted that “protecting the vulnerable” is one of their guiding priorities in rebalancing public finances. Members of the Society are frequently engaged in “protecting the vulnerable” and most disadvantaged in our compact community. 41. Many young men and women choose to enter the Manx legal profession. It is still a noble calling. The Society states that the Manx Bar consists of approximately 225 advocates. Members of the Manx Bar deal with a wide range of matters including domestic and international matters, commercial and corporate matters and family and criminal matters. The Society states that on the Isle of Man of the 35 legal practices 18 have 3 or fewer advocates and this grouping has particular difficulty in obtaining professional indemnity insurance cover.