第16章 Counsel of Record

There is a thing in this jurisdiction about who may appear, and about what a solicitor may say, and about the difference between an advocate and a lawyer, and I have spent six months being extremely careful about it in public and I have spent considerably less care about it in private, and what follows is about the private part. Let me set out the position, because most readers will not know it and because it turns out to matter enormously. In a construction application, of the kind this is, the applicant's evidence is usually a witness statement and the argument is usually oral. A solicitor may argue. A solicitor may not call a witness, may not put a question to a witness, and may not in general conduct the examination of a witness in the witness box, because a witness in a tribunal in this jurisdiction is a person, and a person is not an exhibit, and the tribunal is not entitled to be asked leading questions in order to get a result it has been told it wants. I have known that since I was a student. I have never had to think about it in a way that mattered. I have had to think about it about eleven times in the last four days, and the reason is Theo Marchetti. Here is the position in this case, and I am going to set it out as a list, because Aveline Roux has told me that if I cannot reduce this case to a list in one page then I do not understand it, and I have tried, and she was right. One. The witness is a twenty-four-year-old clerk of my own firm. Two. He is not a witness to any fact. He is a witness to a document, which is a photocopy of a document, and to the fact that he unfolded a page of a photocopy in January 2026 and put a slip in the file. Three. He did not tell anybody for six months, including me, and he has given a witness statement in which he says that he did not know if he was allowed. Four. He is frightened of me. Five. I have not told him that he is frightened of me. He knows. I have not told him and I have not denied it and I have not discussed it with him since the second of July 2026, and I have avoided him in a corridor about nine times, and each time I have avoided him in a way that a person who was not avoiding him would not have done. Six. On the third of August 2026 I telephoned Aveline Roux and said, "I would like to put Theodore Marchetti in the witness box," and she said, "No," and then said, "Let me tell you why, and then you are going to be angry, and then you are going to telephone Martyn Craddock and ask him whether a clerk of twenty-four who has given a truthful statement can be cross-examined by the solicitor who asked him to sit in a room with a dead man's partner in it, and he is going to say yes he can, and then you are going to have to decide." So I telephoned Martyn Craddock. He said: "Yes, of course he can. Any party can put any witness through his paces, and you are entitled to ask him whatever you like, and if Mr Lowe asks a twenty-four-year-old clerk about a document that the clerk found in January, that is Mr Lower's problem and not yours." "What if I put him in?" "Then Mr Lowe will have a field day," said Martyn Craddock, "and he will do it in about nine minutes, and he will not do it by attacking the boy, he will do it by establishing that the boy sat in a room with a solicitor of two years' standing who told him a partner of a firm of solicitors had died, and he will do it by putting to the boy the words 'did the applicant put it to you that Mr Auman was dead,' and the boy will have to say yes, because he was in the room, and then Mr Lowe will look at the tribunal and say, 'And did the applicant suggest to you that you should not mention it,' and the boy will have to say no, because he is truthful, and then Mr Lowe will say, 'Then you understand why you did not mention it,' and the tribunal will not know what to do and I will be standing in a corridor afterwards wondering how we got there." I said, "So I cannot put him in." "You can put him in," said Craddock. "That is the answer to the question you asked. What you cannot do is put him in to prove the document, because the document does not need proving, it is a photocopy of a page of a bundle that both parties have, and if you put him in to prove the document you have put him in to prove that he found it and sat on it, and the only reason to want a witness is to prove a thing that is in dispute, and nothing about the finding or the silence is in dispute between you and Mr Lowe. The only person in the world who disputes it is the boy, and he is not a party, and he cannot be." That is the most useful piece of advice I have had in six months and I want to record that I argued with it for a day and a half and that he was right and that I was arguing because I wanted him in the box. I want to be honest about that, because I have spent six months being honest about the parts where I am frightened and I have been remarkably skilled at not being honest about the parts where I am merely stupid. I wanted him in the box for four reasons and I have examined all four and three of them are bad. The bad one is that I wanted the tribunal to hear, from a witness, that the page was folded down in January and that nobody opened it. That is a fact about a bundle, and bundles are not proved by witnesses, and a tribunal that needed a witness for that would be a tribunal that has lost the plot. The worse one is that I wanted to be able to say, in open court, in front of Mr Lowe, that my own firm sat on a document for six months. Because if I say it, and Mr Lowe does not use it, then I have been honest, and being honest is what a person in my position is supposed to be, and I have read a great deal about it. And the honest one, which I have not set down anywhere else, is this. On the fourteenth of April 2026 I said to a twenty-four-year-old clerk in a room, with a dead man's partner as the subject, that the following four things were true: a man had died; a box had gone into a room in 2017; the box might contain a document; and a question might be asked about a corridor in November 2025. Every one of those four things was true. I verified all four before I said them. I had checked the death certificate, I had established the box, I had the 2017 letter, and I had established the corridor from the 2011 file and a note I made on my own diary in 2025. And I said them in that order, in that sequence, in a room, to a clerk, in about four minutes, and I did not say "I am not going to put this to you" and I did not say "you are not obliged to" and I did not say anything at all about the fact that he was twenty-four and that I was the beneficiary and that we worked together. That is the thing I did. That is the whole of it, and it is not a legal error, and Aveline Roux has told me in terms that it is not a legal error, and that it is the reason a boy of twenty-four is going to spend the rest of his life being the clerk who sat in a room with Nadia Prentice. And on the fourth of August 2026 I decided that he was not going to be, and here is how I decided it, and it is not noble, and I have no right to be proud of it. I decided it because I realised that the only thing I wanted out of putting him in the box was to be watched saying it, and there is a great deal in this about being watched, and I have done nothing else for six months.