An advocate’s year in England

Although

Ben Snedden

About an hour north of London by train lies Peterborough, a city similar in size to Kirikiriroa Hamilton. Its famous and towering Norman Cathedral, an obvious landmark, is also the burial site of Catherine of Aragon (wife number one of Henry VIII). A guided tour takes you right to the top of the cathedral.

You have to pass through narrow hallways and avoid looking down at the sheer drop to the church floor. But on exiting you are rewarded with a view that overlooks a large, flat, green landscape known as the Fens. You can also see the county and magistrates’ courts where I practised for a year as a solicitor in 2021/2022.

This would be my second working stint in a city whose League One football team is called the Posh For five years in the 2000s my wife and I lived and worked here. Eleven years later we returned when my wife’s mother was sadly diagnosed with terminal cancer.

Based in Stamford, whose beautiful stone town is used as a backdrop to many period films, I would take a 10-minute train into Peterborough. As it happened, my old employer Hunt and Coombs LLP had a vacancy in the family team.

HCs, as it had been rebranded for a time, was a mid-size full-service firm. It was founded by Jack Hunt in the 1930s – locally famous for “doing legal aid before legal aid”. Working in a team environment again was enjoyable compared to the solitude of a barrister’s life.

I had practised as a family law barrister in Auckland for several years before relocating. Yet the diet of work in England was not too dissimilar to home. In order of complexity it ranged from private law (COCA) and financial remedies (relationship property) up to public law (Oranga Tamariki).

Legal aid for public law matters remained for all parents – regardless of their finances. In such cases a parent could face the permanent removal of their child with no post-adoption contact. In more than 20 years of practice, these remain the most challenging of cases and still give me shivers.

New court

During my absence from the UK the Family Court had been created. In 2013 the family law functions of the county courts and magistrates’ courts had merged into one. In addition, the Family Division of the High Court still heard the most serious of cases.

This called for various styles of advocacy with no immediate New Zealand equivalent. On Monday you would need to persuade a “jury of three” (lay magistrates) why a father should be permitted to take his children on holiday to Dubai. Wednesday could then involve a local barrister, sitting as a deputy district judge for the week, deciding a matrimonial split. And on Friday you could be addressing, by AVL, a county court judge who had to decide whether a new-born baby should be uplifted from hospital by social workers.

The actual practice was refreshing. Pre-action protocol letters were the norm, as were advocates’ meetings an hour before each hearing. Paper files had long since vanished, replaced by electronic bundles from the outset of a case. Signed witness statements were filed only once the matter was well under way. The power to appoint single joint experts (a godsend) was routinely employed. Position statements (submissions) could be filed the day before a hearing with an expectation they do not exceed five pages.

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Before each financial remedy case, both parties must file a schedule of legal fees incurred, which always made for interesting reading. Urgent hearings were routinely listed – even just for 30 minutes. Judges could access their diaries and provide the next fixture date there and then. Judgments were rarely reserved, even after long fact-finding hearings.

Blurred lines

Advocates by nature are varied and colourful. England is no different. Although the demarcation with the bar remains, solicitors are doing more advocacy than ever before, not only for the challenge it presents but also for the fees. Many solicitors have also qualified as solicitor advocates (myself included) to ease the transition to the bar.

Legal executives could also obtain rights of audience, their hard earned practical experience now an asset. However, regardless of which branch of the profession you belong to, there is a strong collegiality among practitioners.

Seeing older, experienced advocates still turning out for legal aid clients was inspiring. New Zealand by contrast has seen a decline in experienced legal aid providers, the oft-cited reason being the economics of legal aid rates. But of course the opposite is true – namely, a solid private caseload frees one up to take on the less financially rewarding work.

The personalities, if not the ethnicities, of the tribunals were diverse. It was often wise to take the temperature of the court before speaking. However, judicial interventions (as opposed to the delivery of them) were helpful: Get to the point; Take me to the evidence on that now; This is just friendly fire cross-examination – I want questions on the conflict between witnesses

There are of course limitations to any system. Support persons were excluded from attending hearings. The equivalent of lawyer for child would only occasionally be appointed in private law matters. And the common use of adoption after dispensing with parental consent in public law cases illustrated the bright jurisprudential line between our two countries.

Advocacy boost

Before returning to New Zealand I managed to fulfil one professional ambition – to complete the residential advocacy course at Keble college in Oxford, not only to sharpen my advocacy but to lay to bed ghosts of the past.

My first encounter with the English bar in the 2000s had left me wounded. A real gulf had existed between my advocacy and counsel. It was a delight to discover this was no longer the case. The teaching faculty applied with vigour the Hampel Method, devised by its namesake, former Australian Judge George Hampel.

The technique certainly has merit and participants notably improved throughout the course. In spite of that, I was surprised by the lack of positive reinforcement.

The point has not gone unnoticed. Northumbria University has referred to the importance of praise in implementing the technique. In fact, court staff, advocates and tribunals (on both sides of the planet) need greater recognition. Indeed, like Peterborough Cathedral, if you don’t pause and look closely you will overlook the immense presence such people have on the justice landscape. ■

Human Rights Review Tribunal Taraipiunara Mana Tangata

Lawyer Panel Members

Expressions of interest are invited from barristers or solicitors of the High Court of not less than 5 years’ practice who wish to be considered for the role of part-time Panel Member of the Human Rights Review Tribunal. The Tribunal hears and determines proceedings under the Human Rights Act 1993, the Privacy Act 2020 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner pursuant to their respective Acts.

The Tribunal is seeking additional lawyer panel members. In addition to having held a practising certificate for not less than 5 years, lawyer panel members are also expected to have knowledge of, or experience in, one or more of the following areas:

• Different aspects of matters likely to come before the Tribunal;

• New Zealand law, or the law of another country, or international law, on human rights;

• Public administration, or the law relating to public administration;

• Current economic, employment, or social issues; and

• Cultural issues and the needs and aspirations (including life experiences) of different communities of interest and population groups in New Zealand society.

Further details and an application pack are available from the Ministry of Justice website here

The closing date for applications is 5:00 pm on Friday 28 April 2023.