To Hell with the Bank….and Precedents

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Book Review: The late Paul Eustice

    1. As I have recently started my 39th year in legal practice, leaving aside the fact that I still feel as far away from retiring as I ever have, the publication of a recent book has caused me to stop and reflect. That reflection has reminded me what a privilege it has been to practise law in the agricultural sector. Aside from the fact that it actually allows a lawyer to have meetings and see clients, rather than sit in front of a computer screen, it is the fact that the farming fraternity, and the Rural Chartered Surveyors and others who serve it, are simply a good bunch.
Paul Eustice
    1. Right at the top of that pyramid of high esteem would be the late Paul Eustice. Commencing in October 1994, it was my privilege to act for Paul and his family, albeit that the dispute was one of the most traumatic and difficult that I have ever experienced. 27 separate Court Orders in a period of less than a year tells its own story. That included a visit to the Court of Appeal.
    1. Paul Eustice was deeply honourable and delightful in equal amounts. He died last year. His death represents a considerable loss to the farming community and his very close family. Before he died, Paul wrote a book. Its title is that of this article: To Hell with the Bank. If you want to find out which Bank, you will have to buy the book.
    1. Following Paul’s death, his eldest son, George, [then] our Farming Minister, arranged for the book to be published and wrote the Preface.
    1. Some may think it rather brave of George to proceed with the publication, including his Preface. Possibly. However, such a thought would fail to understand how entirely straightforward and honest people can feel betrayed by the system, in this instance by one of the venerable clearing banks.
Barclays Bank v Eustice
    1. Lawyers are interested in the Eustice case because it includes the entirely aberrant decision of the Court of Appeal in relation to obligations concerning disclosure. Now, 24 years ago it still rankles. I can take comfort in the fact that the Trial Judge considered that the Court of Appeal’s decision was entirely wrong and the Privy Council subsequently indicated that it thought it was wrong.
    1. The decision of the Court of Appeal related to the extent to which privilege applies in relation to the protection of legal advice. The Court of Appeal decided that the Bank was entitled to see certain advice which had been given to the Eustice family. Although, on the facts, it did not help the Bank, the decision was wrong. One of the cardinal rules upon which our legal system is based is the ability of a client to seek professional advice entirely confidentially. The exceptions of the rule must be extremely limited. In the Eustice case, there should not have been an exception.
Second guessing the Judiciary
    1. How did it happen that a Court of Appeal decision can be so wrong? It happens from time to time. While I do not subscribe to an observation made to me by an eminent QC that going to the Court of Appeal was a little bit like going to Las Vegas, another case in which I acted, illustrates the issue of the consistency applied by Judges. The case was Pye v Graham. I acted (eventually successfully) for Mrs Graham in relation to a claim to what is generally known as “squatters title” in respect of a substantial block of agricultural land. We won the case in the High Court. The Judge was Mr Justice Neuberger (as he then was, before he subsequently became the President of the Supreme Court). The other side appealed. We went to the Court of Appeal. We lost 3-0. Onwards to the House of Lords (before the introduction of the Supreme Court). There we won 5-0. Overall, a 6-3 win.
    1. When subsequently at a bash where Baroness Hale (the new President of the Supreme Court) was speaking about precedent, I did suggest that this was an example of how difficult it is for lawyers to advise by reference to case law!
    1. Currently the. Court of Appeal decision in the-Eustice case stands-as continuing authority relating to privilege in respect of legal advice. I am sure that the vast body of lawyers who have ever had to consider this will agree that, if a similar case were ever to get to the Supreme Court, the Court of Appeal’s decision in Eustice would not survive. Perhaps with the benefit of hindsight, it is a pity that we do not go on to the House of Lords at the time, but peace broke out.
The Intervention Board v Penycoed Farming Partnership
    1. The law of precedent, and exactly how the courts work, really is not easy to predict. For example, I acted in The Intervention Board v Penycoed Farming Partnership case: a test case for more than 20 dairy businesses who were facing the imposition of milk levy. The Intervention Board succeeded before a Master in the High Court. The line of appeal from there was to the Court of Appeal. The most animated group of three judges that I have ever seen presided. They seemed plainly in our camp but recognised that if they had decided the case in our favour, it would then go to the House of Lords. Instead, they decided to leapfrog the House of Lords and refer the case themselves to the European Court. There, we won. Would we have won in the House of Lords? Another of those questions. The outcome was, however, a just one.
To Hell with the Bank
    1. The real interest in Paul’s book is not one for lawyers but for anybody who is interested in farming and justice. Although what is written undoubtedly has some artistic licence, that does not in any way detract from the overall presentation of an absolute horror story.
    1. The book is not entirely grim. It captures some of the moments which still cause me to laugh out loud. The Receivers’ Dawn Raid is a collector’s item. Although when the Receivers arrived in Cornwall, and Buttercup (and the rest of the herd!) was safely grazing on the Mendips, the Receivers did not leave empty handed ….
    1. While I appear in legal tomes (still authoring Scammell), this is the second time that I have appeared in a client’s paperback. Some of you reading this, with long memories, may remember when I had sufficient hair for somebody to record: “Peter Rhys Williams was a very clinical and precise solicitor. He was a wiry man in his thirties with red hair and a hearing aid he had had since childhood. He was proud to be Welsh but had no Welsh accent”.
    1. It is the last section of Paul’s description of me which reminds me why I still have such enthusiasm as I had when I started. In a world where conflicts still abound, there is a place for “He seemed to relish conflict, but to be fair to him, conflict with purpose. That is to say, conflict that leads to peace and settlement as soon as possible”. Trying to sort things out is the overriding professional duty. Even in this horror story, a resolution was achieved.

However, 24 years on, no resolution was ever going to remedy the injustice that occurred.                                                                                        

I unequivocally recommend those who work in the agricultural sector to read Paul’s book. It is available online from:

                                                                                                                                                                                                                                 © P R Williams

                                                                                                                                                                                                                   October 2018

P R Williams, Ebery Williams – author of Scammell, Densham and Williams Law of Agricultural Holdings

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