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God … How brilliant and beautiful are we?

Dexter Flynn | 21/02/16

During the thousand years in which I have been practising law in Jersey, one marketing “development” which I have noticed come to the fore in this jurisdiction and elsewhere is our self-congratulatory legal acclamation concerning any deal concluded or any case that we have won.

You cannot pick up a publication these days without seeing the smiling face of a splendiferous lawyer talking about his/her involvement in a landmark decision or his/her assistance in concluding a trillion dollar loan deal.

For us litigators, it is, of course, all about the win. Inevitably, the law firm that has successfully prosecuted or defended an action makes the public aware as to its magnificence in all sorts of publications ranging from the local newspaper to the supermarket tabloid. Commentary on legal cases can now be found next to adverts about cellulite reduction.

Of course, I am not critical of this. Indeed I too have been glorified next to an article about cures for genital warts. I suspect that this form of “marketing” leaves the general public with the impression that lawyers and the Courts are always involved in the resolution of high profile cases or that multitudes of clever lawyers are concluding deals which involve billions of yen.

This can often be the case but, of course, it does not tell the full story (other than the fact that it is true that all lawyers are stunningly beautiful). The judiciary is at all times ensuring that the gladsome light of jurisprudence is being allowed to illuminate on a daily basis.

What do I mean? Not every judgment needs to be enveloped by a celebratory hug of approbation. Many judgments are useful tools for both lawyers and the public to clarify matters and ensure the effective administration of justice. It may not be as exciting as your zillion euro transaction but in many ways, it is just as important.

Two examples of these kinds of judgments were published recently. Both were unpretentious in their appearance but, under the bonnet, they packed a punch.

The first, issued by the Master, explained his reasons for ordering sequential exchange of experts’ reports. The decision came at an early stage of the proceedings. There was a dispute between the parties as to whether exchange of experts’ reports should be simultaneous or sequential.

In essence, the argument was that a simultaneous exchange created the best opportunity of experts producing an independent and objective analysis of a particular issue.

The counter argument was that for medical evidence the production of experts’ reports should always be sequential so that Defendant would be in possession of a clear analysis of the Plaintiff’s claim.

There was no Jersey authority to assist the Master in determining the issue. Having looked at UK authorities, he concluded that he did not consider it appropriate “either to rule that disclosure of reports must be simultaneous or production will always be sequential”. He considered that it was ultimately one of discretion. However he did say this: “it is often the case that a Plaintiff will provide medical evidence either on an open basis or on a without prejudice basis in order to provide details of the particular injuries a plaintiff has suffered and to encourage a defendant to explore settlement.  Merely because I have a discretion to order reports to be exchanged simultaneously should not be taken as encouraging parties to depart from this usual practice”.

He went on to find that any application for simultaneous exchange would require a justification to depart from the practice as described.

A small but significant point that clarifies Jersey law. No fanfare required from the warring legal gods.

The second judgment was from the Jersey Employment Tribunal, reminding applicants of the clear requirement under the Employment law to bring a claim for unfair dismissal before the end of the period of eight weeks beginning with the effective date of termination.

In the particular case upon which the Tribunal was asked to make a finding, the applicant had received legal advice and filed his application only a matter of hours outside the time limit. Despite this, the Tribunal threw out the claim. The Tribunal said this: “if the Tribunal were to allow this application to be accepted late, for apparently no particular reason other than that the applicant was unaware of the latest filing date, then where would it draw the line with other applications?”

Once again, an apparently innocuous employment case is a powerful reminder to practitioners and the public of the requirement to comply with the “within 8 week” rule and provide assistance as to how that is calculated. Again no blowing of the legal horn by Zeus or Aphrodite.

These cases will not attract headlines or law firm exaltation but their importance cannot be understated. A little bit of unheralded jurisprudence … every day.

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