A few hours into the second day of our attempt to occupy the London Stock Exchange it became clear that peaceful demonstrators could only occupy the land at the entrance to the London Stock Exchange. We had begun to make our encampment there, in St Paul’s Churchyard. Some terribly nice looking young men handed me a slip of paper. They looked just like Christian activists. They were well dressed, a little awkward and very polite. I read the words on the paper:
In the dark of the night,
when I’m shivering cold,
St Paul appears to me and
he baptises my heart;
he cleanses my soul.
He breathes in my ear
and he opens my eyes.
He kisses my cheeks and
washes my hair and my feet
and my toes. And he whispers
to me, “the Emperor wears no clothes”.
These few words gladdened me considerably and liberated me from the effects of sleeping the night on the cobblestones in the church yard. Instead of rushing off to find the morning sunshine, I stood in the shadow of the mighty cathedral and pondered the nature of Christianity anew. This humbling moment led me to thinking that both these young men and us occaptionists knew very well what the problems with modern predatory capitalism were.
The point is, however, to change the world. To change the world, we need proposals! So far our camp has only managed to set itself up, hold the space and create a community. It’s not for me to publish a manifesto and I certainly don’t have one lined up. However here’s an idea to get the ball rolling and an explanation of why it is needed:
A Properly Enforced Burden of Proof on Corporations and Private Companies in Courts of Law
I practised as a barrister for years (see my pictorial cv). Many people don’t know this: barristers cannot turn down a case. Solicitors can, barristers cannot. Them’s the rules. This duty is known as ‘the cab rank’ rule and is regarded by the Bar (the collective name for barristers) as the moral high watermark of our profession. It means that we do our best for people who are unpopular.
Consequently I represented banks and private companies in court. Very often they were chasing Joe Public for monies outstanding. There is an ancient rule that says that you need a witness to present evidence in court. Time and again my corporate client would turn up in minor cases without any witnesses. They merely relied on me to present their case. These cases were minor for the corporation concerned but not to the person on the receiving end of the legal claim. The people on the receiving end were invariably representing themselves. They were litigants in person.
There is another rule that says ‘whoever makes a claim, must prove the claim’. This means that the burden of proving a claim falls on the person making it. Evidence is required to prove a claim. In civil courts the level of proof required is much lower than in the criminal courts. Each claimant only has to present witnesses whose evidence proves the claim ‘on the balance of the probabilities’. In other words, is it more likely to be accurate than the other side’s evidence?
As a barrister fighting a claim against a litigant in person I had a duty to make sure that their case was properly represented and properly heard in court but, because I represented their opponent, I could not give them legal advice. I would point out to these litigants in person that I had no witnesses and therefore no evidence. I would also point out that the litigant in person was only defending a claim and that they, therefore did not need to say anything because there could be no claim against them without evidence. Then I would have to stop because I considered that anything else I would say would constitute legal advice.
In court, time and time again Judges would start talking to the defendants in person. Intimidated by their surroundings and seduced by an apparently friendly judge, litigants in person would start talking. Judges would then use this conversation as evidence in the case and allow my corporate client’s case! This practice was routine. Utterly routine. I got to the point where I would begin a case by informing the judge that I could not present a case but judges became angry with me. Their anger intimidated the litigant in person even more and made them even more susceptible to the subsequent friendly chit chat of the judge. The conversation would flow and the corporation would win the case. In effect, the judge was prosecuting the corporation’s case. This is utterly unacceptable. It is disgraceful. It is experiences like these that drive most people to the conclusion that the law is on the side of the corporate power. It isn’t a false conclusion at all. It is reality.
This problem is only one part of the difficulties that we have corporate power gone mad. It is the part experienced by Joe Public day in and day out, at the coal face. There are plenty of other legal problems with corporate power. I’ll be addressing some of those problems in future posts. I’m starting with this one because it is the simplest to remedy.
The solution to this is for the higher courts to issue a practice direction stating that private companies and corporations cannot succeed in any claims without witnesses to support the evidence present. This practice direction would have to be obeyed by the District Judges and Deputy District Judges which hear these minor cases. They already obey practice directions so there will be no problem with that. The practice direction should be detailed enough to make it clear that the witness will have to be able to present the evidence properly. In other words, it is no use just sending any office bod along with some photocopied data which they barely understand. They will have to be related to the evidence they present or have a proper understanding of it.
The consquence of this approach is that corporations will abandon pursuing minor debts against us because it isn’t commercially viable for them to send witnesses. We know this because that’s what they already say when explaining why they don’t witnesses. It simply isn’t worth the trouble for them.
This proposal doesn’t seek to change the existing law of evidence. It seeks to enforce it. The crucial problem with corporate power is that they have become more powerful than us before the law. They started with equal rights and equal responsibilities. Over time they’ve evolved to escape their responsibilities and now routinely have more rights than us in the process of law. In the UK we have an oral system of justice, which is to say that people have to turn up in court and actually say stuff. They have to explain their evidence and face questions on it. We frown upon legal systems which operate only at the paper level and leave no room for witnesses to be tested in court. Quite right too. Why then, should corporations be allowed to obtain their legal claims in a paper system? That is what the current County Court practice in these minor cases amounts to.