Some two months later, Robert consulted me on the draft of his statement of claim, that is, the document in which the party that brings the action – the plaintiff or claimant – narrates his case. To my dismay, Robert had decided to proceed under both counts. He proposed to allege that the sales house had breached a duty imposed under the Sale of Goods Act. In other words, the auctioneers had given an incorrect description of the ‘goods’. As an alternative, Robert alleged that the statement respecting the mare’s condition, namely her being with fowl, constituted a negligent misrepresentation on the part of Douglas brown and that the sale house was liable together with him.
“But Robert: you have not dealt with the exemption clause, which exonerates the sales house from any responsibility of the condition of the items listed in the catalogue!”
“If the sales house denies that a statement had been made, I shall deal with the point in the reply.”
“They are bound to deny any responsibility for any statement! So why not deal with the problem at the outset?!”
Our latest exchange dealt with a complex point of procedure. If the person sued – the defendant – raised a point that required to be dealt with by the plaintiff, the latter was entitled to file a ‘reply’. Such tactics were bound to lead to delays and to amendments of the pleading (the statement of claim and the defence). Years earlier, my own pupil master taught me to meet hurdles at the outset. It was simple minded to expect your opponent to overlook them. Still, Robert was entitled to give preference to tactics he considered appropriate.
“There is yet another difficulty, Robert. Suppose that the sales house simply claims that the item was as described in the catalogue. That is the best course available to them. So why not leave the antiquated Sale of Goods Act out. How is it going to support you?”
“But if I do, the sales house can refer to it. So why not rely on it at the start?”
“Because they may then also refer to the exemption clause. You are preparing the case for the ‘other party.”
“I disagree!”
I gave Robert a searching look. By now, I was convinced he had made a hasty commitment when the matter was discussed with him informally. Robert was impetuous and, occasionally, plain careless. Still, he had to protect himself.
For a few minutes I stared at the breath-taking view through the window of my office. Had any sailor been foolhardy enough to try to steer his way through the numerous cliffs without studying his maps carefully? But then, who was in a position to tell a skipper how to navigate his ship?
“Well, it’s all up to you, Robert.” I told him at long last. “But consider another point. Is it possible that we are dealing with a mistake – a mistake on Jack Smith’s part such as his failing to understand a statement made by Douglas Brown?”
“But an action based on a mistake would not help us. The contract would then be void. Jack Smith will have to return the horse and take his money back.”
“Correct. But then, what does he want?”
“He wants to have the bid reduced to $1,500 and keep the horse. He says he is prepared the risk involved in using the mare for breeding. But, if he had made a bid on that basis, he would have stopped at $1,500. He says his loss is about $1,500 and requires an award of damages of such an amount.”
“So, he wants to have his ‘cake’ and … pay less for it than what he bid? H’m.”
“He regards it a matter of principle!”
“Best of luck to him then. But, Robert, have you covered your back?”
“In my acceptance of the instructions, I told Jack Smith’s solicitors that my opinion was based of the facts as stated by the client. Surely, that is good enough!”
“I would have been inclined to refer to the alleged the certificate. How on earth does Jack Smith explain that he did not ask to see it?”
“He says he trusted the word of the sales house and their auctioneer (Douglas Brown). I told you so before.”
“You did. Still, I am perplexed. To me $3000 is a lot of money.”
“Jack Smith is a wealthy man and – you’ll be surprised to know – horse breeding is but one of his hobbies. He is an industrialist.”
“Then he ought to know how to take care of himself. Try to get supportive evidence, Robert.”
“The solicitors are doing their best.”
Robert was referring to a well-known fact. Officially, New Zealand had rejected the English demarcation between barristers, who argue cases before the court on the instructions given to them in the brief, and solicitors, who deal with the client and have direct communications with him. If the matter had to go to court, the solicitors searched for right barrister and prepared the brief (or instructions) given to him. In New Zealand all lawyers had the right to appear before a court. They could act both as barristers and solicitors.
I reality, though, some New Zealand lawyers retained the role of counsel, or, effectively, acted only as barristers. Robert was one of them. The evidence would have to be obtained by the solicitors. Robert was required to keep his distance from the client and the witnesses. He appeared before the court with ammunition provided by the solicitors. Naturally, in many cases he had to ask them for further evidence or better ammunition, such as documents. Still, by and large he had no direct communications with witnesses and their records.