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Those who play at advocates can lose sight of the evidence

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legal matters

When training as a barrister, my pupil master advised many powerful figures in the construction industry. More than once I heard them express the view that they could have, or should have, gone into his line of work. Every time my pupil master would reply: 'There is no magic to being a barrister. It is simply a matter of training and experience.' Yet many persist in the view that if you know your subject matter, are of theatrical bent and not afraid of hard work, the skills of an advocate will fall naturally in your lap.

But there is more to advocacy than the popular television image of a lying witness reduced to tears by aggressive questioning. Advocates are taught early on that the secret of success is to adduce the necessary evidence to prove their case and to undermine any evidence relied upon to the contrary. They then spend the rest of their professional careers learning how best to do this: usually without tears or shouting.

The questions 'what do I need to prove?' and 'what evidence do I need to prove it?' are central to the advocate's role. They can only be answered by a combination of rigorous forensic analysis and experience.

Would-be advocates should be alerted to the perils of presenting a case without an appreciation of the fundamental requirements of evidence and proof, as illustrated by the salutary case of Parmar v Woods (Inspector of Taxes) (judgment 30.5.02).

The claimants, who ran a knitwear business, were investigated by the Inland Revenue.

Several issues as to alleged trading losses became the subject of an appeal to the Commissioner. At the hearing they were represented by their auditor, Mr Saujani, who by virtue of his status as a chartered accountant was entitled to act as their advocate.

Mr Saujani made a full and detailed speech on behalf of the claimants but adduced no evidence on the many issues of fact raised. The Commissioner rejected the claimants' case on the grounds that on the evidence before her she was not satisfied that they had incurred the losses they claimed.

The claimants appealed to the High Court.

They argued that by reason of Mr Saujani's incompetence to conduct the appeal they had not had a fair hearing. In a statement to the court Mr Saujani explained that:

lHis contentions ought to have been treated as evidence, and not mere assertions, and he had assumed that to be the case. The court considered that such an assumption was totally unreasonable. Everything had been done to alert him to the distinction between the role of advocate and witness. Moreover, the Commissioner was entitled to assume that he knew what he was doing.

lHe had paperwork to support the losses claimed, but because the Commissioner had not asked to see it, he assumed there was no need to produce it. It turned out that the paperwork had never been produced to the Inland Revenue, let alone the Commissioner and, in fact, did little to improve the case.

lThe Inland Revenue's information leaflet about these hearings suggested that the Commissioner would help those not used to court proceedings to present their case. As a nonlawyer, he was entitled to the Commissioner's help.

But Mr Saujani had not informed the Commissioner that he lacked the necessary knowledge or experience, or that he required any help. The leaflet did go on to explain, however, the processes of calling evidence and of cross-examination.

Had Mr Saujani given evidence, of course, he could have been cross-examined by those representing the defendant and this might, in the words of the judge, have proved a 'high-risk strategy'. Instead, the court found his conduct consistent with a decision that he had little evidence to give, and not to any misunderstanding of the procedure.

In a final twist, the judge took Mr Saujani at his word when he maintained that he was incompetent to conduct appeals before Commissioners.

It was, said the judge, most unfortunate that his professional body had allowed him to do so.

They should be given a copy of the judgment and invited to take remedial action.

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