A couple of thoughts on Joshua Rozenberg’s Unforced errors blog

There is an interesting blog from @JoshuaRozenberg on Archie Battersbee’s case, well worth reading, with a response from one of the barristers involved. I tried to comment on the blog itself but could not (paywalled comments) so I tweeted out a thread which I am now blogging, with some additions, here. I don’t have any knowledge of the substantive area. haven’t read the judgments, and obviously one should tread carefully.

Rozenberg says, “All counsel and solicitors were acting on the instructions of Archie’s parents and no criticism of any individual lawyer is implied or should be inferred from anything I say in this piece.” His piece is entitled “Unforced errors by Archie’s lawyers”. Quite how that circle is squared, I am not sure. One quite often sees journalists saying no wrongdoing is implied when wrongdoing rather seems to be being implied. Rozenberg seems to be saying there was/might have been a significant mistake made here. So I have taken a look.

It is worth observing that the fact that sols and barristers were ‘acting on instructions’ is not necessarily a prophylactic against criticism (see further below). Indeed, the Court of Appeal has said the advocate takes professional responsibility for the strategy taken before the court.

One of Rozenberg’s main criticisms seems to be that the strategy of arguing the International Law point before going to Strasbourg was a tactical/strategic error. A second criticism, as I read Rozenberg’s piece, was some (actually perhaps one) of the arguments brought before the Courts were/was weak (Rozenberg emphasises the judge saying it was without foundation). If the point raised was unarguable that would be interesting from a professional ethics perspective. As I say I have not read the judgment.

I do not read the excerpt as saying that, but it might lean that way a bit. I think, unsurprisingly, a regulator would give a wide margin of discretion to the advocate in such hearings given the enormity of the issues before the court unless there was significant collateral evidence of lawyers tempting clients with fantasy arguments. In any event, as Jacob Gifford Head pointed out to me the rules only prohibit arguing, “any contention which you do not consider to be properly arguable,” which is a very hard test to fail. Rozenbergs quoting one of Macfarlane’s judgments suggests the judge saw general merit in at least one of the appeals/leave hearings (the one on the 25 July).

Also, as James Chalmers kindly pointed out to me when I tweeted my thoughts on this, Rozenberg alights on some different points in the end: “two unforced errors by the family … failing to apply for permission to instruct an expert in time— even though Archie’s mother had been talking about a hospice for some days — and misconstruing the two leading cases in this area of law.” This seems to be the justification for his headline (which I have no issue with). James also points out some tactical reasons why the trajectory of the case was as it was: although this seems to be mainly about delaying what the courts eventually regarded as the inevitable. Again, I do not read the comments as suggesting this was an unreasonable wasting of court time, although one might start to read into Rozenberg’s analysis and the judgment he refers to which is not yet published something like that.

Counsel, Rob George (declaration of interest: Rob and I were colleagues for a long period), involved in two earlier hearings but not this one said makes the very fair point that, “One of the issues, esp with ‘errors’ suggested, is that lawyers have a continuing duty of confidentiality to our clients, so the reason that decisions are taken is usually not publicly known, and we are not in a position to explain.” We’ve yet to hear the details of why Macfarlane said the point (not taken by Robert George) was legally flawed. He may be saying it is (close to or actually) unarguable or an error or negligent (he’s unlikely to say that in the judgment I think) but it does not sound like the kinds of criticism which relates to confidential instructions. As Farooqi underlines, a lawyer should not take a worthless point, or make a meritless application, on instructions. The late instruction of an expert might, I suppose, be related to instructions although it is worth reading Rozenberg’s blog for the detail on the attempt to call the expert.

Anyway, the blog is interesting and it is notable that Edward Devereux QC responded. I did not see him as really responding to the key points made by Rozenberg though, possibly because those points were not about his hearings., or maybe there is not a good answer, or because confidentiality prevents him. I don’t know where this leaves us. Family lawyers (with an international law specialism too) would be better placed to comment on errors or arguments unarguable. Rozenberg’s questions seem to concentrate on the later stages of the case and those questions are important given the sensitivity of the case.

7 thoughts on “A couple of thoughts on Joshua Rozenberg’s Unforced errors blog

  1. The most remarkable aspect of this sad saga is that the S Ct. twice “fluffed” the question whether they had jurisdiction to hear an application for permission to appeal from the refusal by the CoA of permission to appeal from the High Court. Applications for such permission are in my experience turned down by a template letter. Why was this different?

  2. I thought this was interesting. What an awfully sad case- fairly good piece on Radio 4 with Robert Winston et al on how better to deal with patients and next of kin ethically and kindly. No easy solutions really. However, Drs always seem to come over as bloody minded.

  3. Thanks for this. As you say, comments on my blog are open only to paying subscribers. Most pieces are free to read.

    I hope I made it clear that I was drawing a distinction between the period leading up to the Court of Appeal ruling on the judgment by Hayden J and the period that followed.

    As I explained in my piece on 26 July, the case could have been handled better by Hayden J and, in particular, by Arbuthnot J. All credit to Edward Devereux QC and Rob George for winning the appeal against Arbuthnot J’s judgment and nearly winning the second appeal against Hayden J’s judgment.

    The piece published yesterday deals only with events following the second appeal ruling on 25 July.
    I am not suggesting that any counsel behaved improperly or raised a point that a regulator would regards as unarguable. This case certainly raises ethical issues but that was not one of them. Nobody wasted court time.

    I also made it clear that Edward Devereux QC and Rob George were not involved in the application to Theis J at the end of last week or the subsequent appeal. Counsel were James Bogle and Bruno Quintavale.

    My main criticism was of the parents’ decision to approach the UN disabilities committee in Geneva before approaching the human rights court in Strasbourg.

    As I understand it, Strasbourg declared their application inadmissible because the UN proceedings were still active. I am not at all sure that Strasbourg would have granted interim measures if an application had been made on 25/26 July. But if that had been rejected, the parents could then have tried the disabilities committee. Doing it the other way round didn’t work.

    Although the point had never been decided, it was surely predictable that courts in the UK might not regard themselves as bound by a request from a UN committee for a stay that could last months.

    My main criticism of the parents’ hospice application at the end of last week was that counsel were not sufficiently prepared. There had been a change of representation and it must have been difficult to find a leader available to pick up the case at short notice during the vacation. But that’s not much of an excuse, given that junior counsel had appeared at a hearing in the case as long ago as 12 May.

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