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Lawyers warned over "offensive" language in court

Lawyers warned over

Thursday 22 July 2021

Lawyers warned over "offensive" language in court


Lawyers have been warned against using “offensive” language when presenting their case, after one described a Royal Court decision as “nonsense”, “extraordinarily petty” and a “sloppy job” in a long-running business battle between one of Jersey’s former richest residents and investors in his company.

The Court of Appeal’s comments followed an appeal brought by investors against the Royal Court’s decision to order that Australian entrepreneur Graham Tuckwell, or his company, purchase their shares at their net asset value, minus a 20% discount to reflect their minority interests as shareholders.

Following the judgment, the plaintiffs appealed not only against the discount but also against the date of the valuation and sought instead for a buy-out order with no discount.

In response, Mr Tuckwell, who appeared on Jersey's Rich List in 2017, submitted a cross-appeal against the buy-out order, seeking to have the plaintiffs’ unfair prejudice claim thrown out, or alternatively a different buy-out order.

The case was heard by Court of Appeal President Jonathan Crow QC, Lord Anderson of Ipswich KBE QC, and David Perry QC, who dismissed Mr Tuckwell’s cross-appeal in its entirety, while also noting his “large number of other complaints” about the Royal Court’s findings, as well as all of the plaintiffs’ grounds for appeal.

In their closing remarks, the Court of Appeal made several comments to the parties’ approach to their pleadings, which they described as “discursive and argumentative”, rather than “rigorous and focused”.

They also commented on the volume of documents submitted - 3,600 and a further 3,500 pages highlighting the legal authorities they referred to. The Court advised that, although this reflected the size of the weeks-long original trial, "for the future we would expect appellants and respondents to keep their written arguments within a very much shorter range" 

Particular attention was drawn to the way Mr Tuckwell’s legal representative, Advocate Robert Gardner, had referred to the original judgment of the Royal Court, which was handed down at the time by Deputy Bailiff Robert MacRae, who was sitting with Jurats Anthony Olsen and Robert Christensen.

The Court of Appeal noted “the convention of respecting professional courtesies” had developed for good reason, adding that having legal professionals to conduct litigation aims to ensure that disputes which might otherwise “descend into unseemly rancour are conducted dispassionately and in a civilised tone”.

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Pictured: In their judgment, the Court of Appeal warned against using "offensive" language.

The Court of Appeal went on to say that no matter how strongly a client may disagree with the findings of a trial court, his lawyer’s role is to ensure his case is presented with “professional respect”, noting there is a distinction between “presenting an argument forcefully” and “expressing an argument in language which is, frankly, offensive”.

They said they regretted Advocate Gardner had “failed to observe that distinction”.

They continued: “This court is not assisted by being told that any findings of the court below are ‘nonsense’, ‘pure invention,’ ‘bizarre’ or ‘extraordinarily petty,’ nor does it advance a litigant’s case for his legal representatives to suggest that the court below ‘did a sloppy job’ or that it ‘went off on a frolic of its own’ and was ‘making it up as it went along’ and that it ‘plucked its own figure from the air’.

“We do not expect to see that kind of language used again.”

Following the judgment, Mr Tuckwell's legal team offered a "fulsome apology" both to the Court of Appeal and the Royal Court, which was "naturally accepted with thanks".

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