“Dear Home Secretary,
You seem very nice, and you have an interesting taste in shoes, which is a Good Thing in the eyes of the Lord. However, I understand that you have been a bit worried and upset by this Huntley thing lately, specifically that he wants to sue the Home Office for negligence. Apparently, he wants about £100,000 for an alleged failure to keep him safe from harm. I also understand that what is particularly worrying is that the costs of this little exercise may amount to £1 million pounds if you throw in your own legal team’s costs, and we all know things are bit tight, what with the deficit and all.
I know a lot of people say he shouldn’t get a penny purely on the grounds that he is a bad man and a guest of Her Majesty, but I think you and I both appreciate it’s a bit more complicated than that. HMG does have duty to take reasonable care of its guests; some people may add the word “unfortunately”, but there we are.
However, I would like to help. If you like, I will do the case for you, and save you most of it. Here’s how.
First you appoint me as both as Judge and Counsel for the Defence. Irregular, I know, but hang in there – just bear with me
Huntley’s legal team will probably be on what I used to call legal aid (amazingly). It is actually quite hard to get legal aid these days, and my perusal of the Legal Services Commission’s Funding Code does not immediately make it plain how he would qualify. Some categories (Human Rights, Judicial Review) still have legal aid funding available. Perhaps they will be able to shoehorn a claim under one of these labels. There is also another category for “Very Expensive Cases” which seems rather self serving, since any Case can become Very Expensive if you want to it be. You might want to have a look at that.
Anyway, assuming that they blag the Legal Aid Huntley’s legal team will first spend weeks investigating and ultimately writing a pre action letter which will be pages long, setting out all their complaints. I will draft a reply for you, as follows:
We do not accept liability.
Huntley’s team will then serve a long Particulars of Claim, which is actually unnecessary because (a) they have already told you what they are complaining about in their pre action letter and (b) all it is really saying is this: the Prison Service had a duty to take reasonable steps to take care of Huntley, and failed certain respects which are then set them out in numbered paragraphs. Without being silly, realistically I could do most of it in an hour or two over a bottle of Merlot, using my imagination; not the complete detail, but the gist of it.
Once the proceedings are received, I will serve a Defence in the following terms.
“The Home Office and the Prison Service disputes the allegation that it/they failed to take reasonable care and denies liability.”
Huntley’s legal team will make an application to complain about the Defence on the basis that it does not go into sufficient detail. I will hear and dismiss that application, because it plainly does. It crystallises the essential issue, and everything else is a matter of evidence.
At the same time, I will order a split trial of liability and quantum. That means that there is no reason for any medical evidence, and about one third of the time and costs of trial will immediately be saved.
There is then a process called Disclosure, in which you have to show them any documents relevant to their claim. Get a sensible graduate looking for work experience, bung him or her a couple of hundred quid, tell him or her to empty every filing cabinet in the jail and type out a list (but not to put anything embarrassing on it). Huntley’s solicitors can have that, and come in and photocopy anything they want. Job done.
Next, finally engage a solicitor. What you want is a sensible chap who has been around the block a bit, and you pay him or her well. His job will be to take statements from your witnesses for use at trial. It is, of course, quite wrong for a lawyer to coach a witness as to what to say, but the prison guards will all say that they did their best but if someone really wants to attack someone it’s impossible to prevent it. The attacker will confirm that he was cunning and could not have been stopped. About £5K for said solicitor and a day release at a pub of his choice for the attacker will get you a Rolls Royce job.
As I will be the Judge, I will need a sensible legal executive for the purposes of presenting the Prison Service’s defence (cost – £100 per hour, max). I will also need lots of tea and biscuits (cost – about £50 all in). The procedure is as follows. I will first hear days of evidence from Huntley and God knows who else his team want to wheel out (a team of Quislings from the Health and Safety Executive, a Risk Awareness Consultant, Polly Toynbee, Paul the Psychic Octopus, whatever), and then hear the evidence for the defence. The job of the legal executive is to ask your witnesses their name, to swear the oath, and if their evidence in their statement true (note: the correct answer should be: “Yes”). That’s it. Then your witnesses will be cross examined. I will diligently take notes of all of this.
After the evidence is over I will then hear hours, if not days, of submissions from Huntley’s legal team, almost certainly fronted by a Silk (QC) about why Huntley should win. I will listen very carefully and very politely and make even more notes and nod sagely at appropriate places. I will then hear from the legal executive for the Home Office, who will read this statement:
“I submit the Home Office/Prison Service did everything reasonable. The duty of care is not absolute and Claimant has failed to prove his case.”
I will then retreat to consider my judgment. I will do this just like a real Judge by going on holiday for a few weeks before coming back and handing down a judgement which consists of reciting all the evidence and submissions and then stating the conclusion about who I think should win which I reached on first reading the papers anyway. So all I need to say at the end is:
“I find that the Home Office did everything reasonable and discharged its duty of care. Accordingly, the claim fails. I will now hear submissions on costs.”
I shall, of course, order costs against Huntley. This is a bit meaningless, as he has no money. If, as I assume, he has legal aid it is a bit problematic because his team get to claim their own costs out of the public fund. But I think, as Judge, I have power to summarily assess theamount of those cost. Which I would now proceed to do, assessing them at £8,000 in total, not the £500,000 plus they will have claimed. You might be surprised I award them so much, but actually it’s probably on the low side of the going rate for a moderately well prepared three day County Court trial, which is about what this case deserves to be. However, given a little thought and a bit of research, I might even find a way to deny them their legal aid completely.
Huntley’s team will ask for permission to appeal on both issues (substantive decision and costs), which I shall refuse. They will then go off and complain to the Court of Appeal, but you can swiftly make me a Lord Justice of Appeal, and I will hear their application for permission to appeal on paper, and dismiss it because they seeking to appeal against my findings of fact, and that is not the job of the Appellate Tribunal. They will renew their application for permission to appeal a single Judge in person (guess who?). I will do this just like a real Lord Justice of Appeal by sitting there looking bored and angry by degrees and then saying “application dismissed” before going to lunch.
You will thus have spent next to nothing on the case, and Justice has been done and been seen to be done.
I know they will all go off on a jolly to Strasbourg or wherever those lunatics are sitting, but we’ll cross that bridge when we come to it.
Total costs I estimate at a reasonable £15,000 including tea and biscuits and disbursements. I know you may find even that unpalatable in these cash strapped days, but I hope you will also agree I have made a big saving. My only fee will be a slap up dinner for me and my special friend Sister Eva Longoria at the Nun and Firkin. Wednesday is curry and karaoke night, so that would be good. You can come too, if you like.
Gildas the Monk.”