Archive for September, 2012

The Mythical Art of the Advocate

The Mythical Art of Advocacy

My own view is that the “Art of Advocacy” is essentially mythical. The reality is that, so far as civil matters are concerned, successful tribunal and courtroom advocacy depends upon the following factors:

  • Detailed preparation
  • A thorough knowledge of the relevant court or tribunal procedure
  • A good knowledge of the law of evidence
  • Experience of the relevant members of the judiciary
  • A clear speaking voice.

The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.

I reject the terminology of “winning” or “losing” cases. This approach reinforces the adversarial nature of the English legal system and can lead to the snooker term, not unknown in the legal profession, of “potting” an opponent. I prefer the use of phrases such as “successful” or “unsuccessful” applications.

The Woolf reforms of English civil procedure concluded, for a number of reasons, that litigation should be a last resort. I take this conclusion seriously. In my experience, cases can be brought to a successful conclusion by written advocacy of the highest standard without recourse to the expense, drama and stress of oral advocacy in courts and/or tribunals. Civil procedure has seen significant movement towards written advocacy, with proactive case management and detailed directions for written material to be submitted in advance of hearings.

Current moves towards a quality assessment scheme for advocates are reportedly based on the statistic that 70 per cent of court and tribunal oral advocacy is below an accpetable standard. This shocking statistic could be dealt with by applying the five factors set out above, particularly that of detailed preparation. It is well-known that the generally poor standards of oral advocacy in English courts and tribunals are closely related to the late delivery of documentation and a lack of detailed preparation.


Care Home Death Prosecution

Death in care home: £160,000 fine

Health and Safety Executive v New Century Care Ltd (2012) Leeds Crown Court, September 10.

New Century Care Ltd, a private company which runs 27 care homes and has 1700 employees, has been fined following the death of a resident in a care home.

Significant points of the case

* In April 2010 Mrs Elsie Beals, aged 93, a resident of the Aden Court Care Home

in Huddersfield, died from asphyxiation after being trapped in the gap between her mattress and incorrectly fitted bed safety rails. Mrs Beal had been a resident for two years. She had been helped to bed on the evening before her death by two care assistants. She was checked before midnight and was due another check two hours later. When the care assistants entered her room, they found her dead, trapped in the gap between her mattress and the bed safety rail.

  • The company had failed to train staff at the care home to fit bed safety rails properly.
  • Staff had not been trained to carry out regular in use checks to make sure that bed rails remained properly adjusted, nor to carry out risk assessments for their use.

The company was fined £160,000 plus £18,000 costs for a breach of section 3, Health and Safety at Work, etc., Act 1974, for failing to ensure the health and safety of non-employees.

Bed safety rails are used extemsively in the health and social care sectors to protect vulnerable people from falling out of bed. The risks of their use are well documented, actively published and widely recognised in the health care industry.

Bovine TB and the Badger Cull

Later today (11th September 2012), a rally will be held at College Green, Bristol against the planned badger cull. With Queen guitarist, Brian May, a high-profile supporter, the “Stop the Cull” rally may well garner interest, and thrust the spotlight on the complicated issues surrounding it. The rally happens at the same time that the Court of Appeal is due to announce its decision in a recent challenge to the legality of the cull, namely that Caroline Spelmen , the then Secretary of State for DEFRA, acted outside of statutory powers in allowing landowners and farmers to cull on their land. But what are the facts and arguments surrounding the badger cull?

Bovine TB is a particularly nasty strain of disease which leads animals – badgers and cattle alike – to die a vicious, prolonged death. The test for TB is conducted in live animals, is notoriously unreliable and thus does not provide conclusive evidence that an animal is infected. Cattle are slaughtered if that they may have the disease. Only post-mortem tests can be undertaken to establish whether infected or not.

One of the biggest problems in this dispute is the conflicting scientific evidence. Animal rights charities take the view that a link between bovine TB and badgers has never been conclusively proved. However, farming groups and the Government, stating that due to the proof that badgers carry the disease, and the proof that badgers pass on the disease to cattle, the link is established. Both views have supporting scientific evidence. Thus, one outcome of the Court of Appeal hearing today will hopefully address the scientific approaches behind the dispute.

The Randomised Badger Culling Trial, undertaken recently, found that a reduction in TB in cattle over a 150 km2 area, plus a 2km surrounding ring, would amount to 16% over 9 years. However, again those statistics can be taken as evidence by either side.

The West and South West areas are particular affected by bovine TB; with a quarter of all farms in the area closing in 2010. In a community that has been ripped apart over recent years, this is just another farming issue that has restricted this sector and made it unprofitable – only a few weeks ago the dairy farmers hit the news when it was announced that due to the price of milk many farmers are operating at a loss.

Farmer’s Weekly have produced a helpful list of key facts and figures, reproduced below:

Disease Status

5.4 Million – total number of TB tests on cattle in England in 2010

25,000 – approximate number of cattle slaughtered for TB control in England in 2010

3,622 – number of new TB incidents in 2010. This is a 7.5% increase on 2009 (herds where at least one animal tests positive for bovine TB, when the herd had previously been TB free)

10.8% of cattle farms in England were under cattle movement restrictions at some point in 2010 due to a TB incident.

22.7% of cattle farms in the South-West were under cattle movement restrictions in 2010

£500 million – the amount it’s cost the taxpayer to combat the disease in England in the last 10 years

£1 billion – what it will cost over the next decade without taking further action

£90 million – amount Defra spent on TB control in England during 2010/11, including£6.9 million on TB Research & Development

£30,000 – the average cost of a TB breakdown on a farm, of which around £10,000 of this falls to the farmer


250,000-300,000 – the number of badgers in Great Britain according to national population surveys carried out in the 1980s and 1990s.

190,000 – estimated number of badgers in England according to 1995 JNCC report. The current population is likely to be considerably larger.

Between the last two national badger surveys (mid 80s and mid 90s) the population grew by 77 per cent, despite 50,000 badgers being killed on the roads each year.

30-75% – estimated proportion of cattle breakdowns due to badgers, depending on local circumstances

28.3% – the average beneficial effect in proactively culled areas from the Randomised Badger Culling Trial up to July 2010.

But when you take account of the negative impacts from perturbation the average net reduction in confirmed TB incidents after culling is 16%, which is the equivalent of preventing 47 out of 292 cattle herd breakdowns.


£30 million Defra investment in cattle and badger vaccination since 1997

£20 million – the planned investment in further vaccine development over the next 5 years

The first injectable badger vaccine (Badger BCG) was licensed in March 2010

Vaccinating badgers costs an average of £2,250 per km2 per year

Unknown the time it will take to see a beneficial effect in cattle from badger vaccination.

Unknown – the time it will take for an oral badger vaccine or a cattle vaccine to be licensed and deployed.

Sadly it seems that the issue is potentially down to cost. While most farmers would fully support an alternative to a cull – they are, after all, used to caring for animals as opposed to killing them – the cost of vaccination in its current form is too much. Which leaves us with the option of “to cull or not too cull”, but, sadly, as can be seen from the facts above, doing nothing is simply not an option.




Farmers Weekly

Bristol Health and Safety Prosecution

Bristol health and safety prosecution: £12,700 fine

Health and Safety Executive v Clear Channel UK Ltd (2012) Bristol magistrates’ court, August 20.

Clear Channel UK Ltd, an outdoor advertising company, has been fined after an employee’s hand was caught in a petrol-powered lawnmower.

Significant points of the case

  • In August 2011 a maintenance worker, who wishes to remain anonymous, employed by Clear Channel, was working at a billboard site in Bath Road, Bristol.
  • He tried to clear a blockage from a petrol-powered mower which he was operating. He thought that the mower had been turned off. As he tried to remove the blockage, the mower’s blade started to rotate. His thumb was almost severed and his fingers were severely injured.
  • A 14 hour surgical procedure was needed to reattach his thumb and repair the damaged fingers.
  • A safety feature which cuts out the engine of the mower and stops the blades rotating was not working properly.
  • Clear Channel did not have an effective reporting and maintenance system for reporting faults in equipment. It had allowed a lawnmower which was not in good repair or efficient working order to be used by its employees.

The company was fined £12,700 plus £13,000 costs for a breach of regulation 5 of the Provision and Use of Work Equipment Regulations 1998 (PUWER).

A spokesperson for the HSE commented that the company had failed to take the necessary steps to protect its employees from harm through the use of non-maintained or ill-maintained equipment. These failures led to serious injury to an employee who has only been able to return to work in the last couple of months.

Regulation 5 of PUWER states that every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good order.