A friend of mine (Thanks JA) drew my attention to some very apt observations of Munby J (as he then was) in a case called R v LSC (ex parte Bateman), which remind me very much of a lecture by Lord Hoffmann I attended as a pupil – in which he extolled the virtues of choosing one’s best points, two at the most. It’s not a new case, in fact it’s 2001. But then Pliny has been around a few years anyway, so I don’t suppose he will have been found to have been wrong in the intervening decade. It’s a bit gruesome – but truesome nonetheless.

It goes thus:

17 The tension between the desirable pursuit of forensic brevity and the advocate’s understandable fear of inadvertently betraying his client’s interests by not taking every possible point has existed as long as there have been professional advocates. The difficulty is nicely brought out in the account of a robing room conversation with a fellow advocate which Pliny recounts in a letter (Ep I, xx, 14).

In response to the other advocate, who says “You think you should follow up every point in a case, but I make straight for the throat and hang on to that”, Pliny says:

I can’t see the throat, so my method is to feel my way and try everything – in fact I leave no stone unturned.”

In his letter he comments:

“On my farms I cultivate my fruit trees and fields as carefully as my vineyards, and in the fields I sow barley, beans and other legumes, as well as corn and wheat; so when I am making a speech I scatter various arguments around like seeds in order to reap whatever crop comes up. There are as many unforeseen hazards and uncertainties to surmount in working on the minds of judges as in dealing with the problems of weather and soil.”

18 One of the merits of great advocates, as Lord Pearce pointed out in Rondel v Worsley [1969] 1 AC 191 at p 255G, has been the ability ruthlessly to sacrifice nine points and win on the tenth and best. The lengthening of trials, as Lord Reid pointed out in the same case at p 229A, does not necessarily lead to any closer approximation to ideal justice. And this is an important part of the philosophy underlying the CPR. As Lord Woolf MR’s comment in AEI shows, the ‘leave no stone unturned’ approach is no longer to be encouraged. Indeed, in the ordinary run of litigation – I leave on one side cases in which fundamental human rights are engaged, where somewhat different considerations may apply – it is simply no longer acceptable. On the contrary, CPR 44.3 can properly and where appropriate should be applied in such a way as positively to encourage litigants to be selective as to the points they take and positively to discourage litigants taking a multiplicity of ‘bad’ points.

More so in the days of the FPR, Overriding Objective and cuts.

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