An extract from an edition of the Posthumous Papers of the Pickwick Club originally by Charles Dickens, updated to take into account developments pertaining to the courtroom of the future, modernised civil justice and the CPR (Circumlocutory Procedure Rules) edited by Richard Harrison.
Being the general background
Mr Pickwick’s landlady, Mrs Bardell, has misconstrued his intentions in respect of matters matrimonial and consulted her lawyers, Messers Dodson and Fogg (now known, it will be appreciated, as “dodsonfogg”, but operating on the web as “dflaw.com”).
Mr Pickwick’s personal assistant, Samuel Weller, has retrieved the following electronic communication:
“Dear Sir
Claimant’s name: Mrs Martha Bardell
Clamaint’s full address: Goswell Street
We are instructed by the above named to claim damages in connection with your declination to proceed with an offer of marriage on [INSERT DATE] at Goswell Street and [carrying on in a rather technical and, it would appear to some, slightly intimidatory vein] . if you fail to co-operate in this regard, it will be appropriate and reasonable, in accordance with the overriding objective, to issue a claim form.
Yours faithfully
dodsonfogg1”
The purpose of this particular act in the drama is of course to exchange information according to applicable protocols and thus ensure that the subsequent trial complies with relevant principles of proportionality and the said overriding objective.
An account of modern funding arrangements
Prior to trial, we have a visit by Mr Weller to the Claimant herself. We are privileged to learn more of the funding arrangements entered into by her with dodsonfogg, no doubt a conditional fee agreement, with provision for uplift, backed by after-the-event insurance.
‘It’s a terrible thing to be dragged before the public in that way, Mr Weller,’ said Mrs Bardell; ‘but I see now, that it’s the only thing I ought to do, and my lawyers, Mr Dodson and Mr Fogg, tell me that, with the evidence as we shall call, we must succeed. I don’t know what I should do, Mr Weller, if I didn’t.’
‘And won’t Mr Dodson and Fogg be wild if the plaintiff shouldn’t get it?’, added Mrs Cluppins, ‘when they do it all on speculation’.
Mr Weller’s leave taking was pointed and subtle:
‘Vell,’ said Sam, rising and setting down his glass. ‘All I can say is, that I vish you may get it.’
‘Thank’ee, Mr Weller,’ said Mrs Bardell, fervently.
‘And of them Dodson and Fogg as does these sort o’ things on spec,’ continued Mr Weller, ‘as vell as for the other kind and generous people o’ the same purfession, as sets people by the ears free gratis for nothin’, and sets their clerks to work to find out little disputes among their neighbours and acquaintance as vants settlin’ by means o’ law-suits – all I can say o’ them is, that I wish they had the revard I’d give ’em.’
Concerning the documents in the case
Anyway, there was no doubt advance mutual disclosure of document databases, collecting the letters of significance to the issues identified in the case management conference. There were in fact two of them the subject of advance disclosure: an e-mail, Pickwick to Bardell and, believe it or not, a letter, inscribed in our hero’s own hand and reduced with glee to a pixellated image, sitting on a data report with appropriate annotations.
The e-mail:
“Garraway’s, twelve o’clock. — Dear Mrs B. — Chops and Tomata sauce. Yours, PICKWICK.”
And in the annotation field in the database, reserved for comment by the opposing parties, in this case the well briefed Snubbins (not QC or even Serjeant these days): “Gentlemen, what does this mean? Chops! Gracious heavens! and Tomata sauce! Gentlemen, is the happiness of a sensitive and confiding female to be trifled away by such shallow artifices as these?”
The letter, undated (a matter in itself, as the opposition point out, suspicious):
“Dear Mrs B, I shall not be home till tomorrow. Slow coach. Don’t trouble yourself about the warming pan”
And annotated thus for the benefit of the jury and their laptops: “Why is Mrs Bardell so earnestly entreated not to agitate herself about this warming pan, unless (as is no doubt the case) it is a mere cover for hidden fire — a mere substitute for some endearing word or promise, agreeably to a preconcerted system of correspondence, artfully contrived by the Defendant with a view to his proposed desertion, and which the Claimant is not in a position to explain.”
A general comment on the correspondence appears now in the composite electronic bundle and indeed is later projected on to a screen in the courtroom with Powerpoint™ slides. The slides are toiled on enthusiastically: as so often on trains nowadays, we see people working diligently away on notebook computers. What are they doing when you look? Why, they are experimenting with coloured backgrounds, entertaining bullet point build ups and impressively attention gaining slide transitions. What additional industry such ‘solutions’ generate! And with what waste of time! But back to the content of the presentation:
“It speaks volume indeed. The communications reveal the character of the man. Not: open fervent, eloquent. Are: covert, sly, underhanded. To be viewed with caution. And suspicion. Intended to mislead and delude third parties into whose inboxes they might fall.”
Achieving justice
Oh, the applications. Oh the filling in of allocation questionnaires. Oh, the invocation of the noble precepts of the overriding objective. The letters, the costs estimates, the flummery, the high-minded hypocrisy. And even now, with the reforms, with equality of arms a precept, we see monied might retaining the means abundantly of wearying out the right. We see finances, patience, courage, hope all exhausted; the brain overthrown, the heart broken. And, still, there is not an honourable man among its practitioners who would not give — who does not often give — the warning, ‘Suffer any wrong that can be done you, rather than come here!’
But Mr Pickwick was a man of high principles and was determined to give no satisfaction to dodsonfogg, the conditional fee merchants.
A full and faithful Report of the memorable Trial…
Chapter 33 of the original Papers cannot be abridged, parodied or bettered. To be sure we would have no such scenes today so for an account of the speeches of Serjeants Buzfuz and Snubbin and admirable summing up of Mr Justice Stareleigh, the reader must be warmly recommended to the source.
We know however that the Courtroom of the Future, has all sorts of interesting manifestations like multimedia capture and display facilities, digital recording and transcription and Smartboards for preserving real-time annotations on a digital image. And having referred to the Powerpoint presentation preparation above, we can rest assured that the effectiveness of the Buzfuz address to the jury made use of it all.
The outcome
The outcome was virtually pre-ordained in that the plot depends on the jury finding for the claimant, awarding half the sum sought and, absent an appropriate Part 36 offer (whatever circumlocution that might be to the ordinary juryman), the claimant’s solicitors getting their costs plus uplift to be assessed in yet another noble procedure by a different breed of judicial personage, to wit, my Lords, the Costs Judge.
Pickwick refused to pay on principle and consequently found himself in the Fleet, a prison in the Farringdon area far less oppressive than the Whitefriars, Carmelites, New Bridge Streets, and Fleet Places where so much hard labour in the area is, in these present times of ours, so constructively undertaken.
And when the plot and its developments proceed beyond the forensic, is it perhaps time to lay down the pen, leave the legal journals to the serious business of the law and suggest to the reader that a few hours with the inimitable Boz is worth more than all the continuing education points in the world.
Richard Harrison is a partner with Laytons, London.
Endnotes
1. Whilst certain terminology may change, the language of lawyers is surprisingly little evolved in this regard and we here set out the 1827 version of a highly creditable letter before action:
“Bardell against Pickwick
Sir,
Having been instructed by Mrs Matha Bardell, to commence an action against you, for breach of promise of marriage, for which the plaintiff lays her damages at fifteen hundred pounds, we beg to inform you that a writ has been issued against you in this suit, in the Court of Common Pleas, and request to know, by return of post, the name of your attorney in London, who will accept service thereof.
We are, Sir
Your obedient servants,
Dodson and Fogg”
