The Gazette 1989

GAZETTE

FEBRUARY

1989

summarised. If something has not

been understood or is not wholly

accurate the attention of the

Registrar should be drawn to it

immediately in writing, even

though at the end of the day it is

for the judge reporter to decide

whether to amend his report. At the

least the point should be made at

the hearing or in the preliminary

interview which takes place just

before the hearing.

Although the decision whether

or not to refer a question to the

Court under Art. 117 of the Treaty

is entirely within the discretion of

the national judge, counsel can play

an important role in assisting the

formulation of the questions. The

precise formulation is important —

not least to ensure that a question

of Community law is raised, since

the Court will not decide what

national legislation means or

whether specifically it violates the

Treaty or a relevant rule of law.

Some references to the Court — I

do not suggest they come from the

United Kingdom — fail to present

the material in the appropriate

form. There is everything to be said

for following the form common in

the English case stated; a section

containing, and headed "the

facts"; a section explaining how

the issues have arisen, defining the

question and summarising the

arguments each way; it is also

valuable to have a preliminary view

of the judge as to the answer.

The pleadings of the party who

desires to take part in the reference

will have to be written without

seeing the pleadings of the other

side; they should therefore deal

with all the major arguments which

need to be put forward or answered.

Annexes to pleadings in both

types of case are important. There

is no discovery or opportunity for

interrogatories or to ask for further

and better particulars, though if the

documents in possession of the

other side have not been supplied

it is possible to ask the Registrar to

tell the judge reporter that the

documents are essential for the

case. Then, if satisfied that they are

needed, the Court will itself ask for

them, or put questions to elicit

further facts in the knowledge of

the other side.

It has not been the practice of

the Court to prepare "bundles" of

such annexes as a separate

working document, In the result,

the Members of the Court often

have to search around the annexes

(exhibited at particular stages as

they crop up in the argument) to

produce a coherent, connected

story. There is much to be said in

cases with a lot of documents for

a - bundle to be agreed either in

chronological order, or in particular

sections, so that the documen-

tation is more readily usable.

Only infrequently are there

interlocutory hearings: they can,

however, be valuable in sorting out

the really important issues, and

deciding, where there are several

parties, which advocate deals with

which issues, so as to avoid all

covering the same ground. Some-

times counsel can discuss these

matters between themselves and

make suggestions to the Court as

to the future conduct of the

proceedings.

The fact that the procedure is

primarily written does not mean

that the oral hearing is not

important. The Court, partly

because of the heavy case load and

partly because the Continental

judges are more used to dealing

with documents, has, it is true,

limited speeches to thirty minutes

or two of fifteen minutes when the

case is before a chamber of three

judges and an advocate general.

Where, however, the case needs

and justifies longer, then an

application should be made to the

President for an extension — which

if good reasons are given is

frequently granted — though

English counsel, perhaps to their

surprise, discover how much, given

the content of the written

pleadings, they can say in thirty

minutes.

It is rarely necessary to go into

the facts in any depth at the oral

hearing: they are in the report for

the hearing and the best way to

lose the attention of the Court is to

begin with a long factual recital.

Facts which it is desired to

emphasis can be stressed as part

of the relevant argument. Nor since

all the relevant decisions of the

Court should have been referred to

in the written pleadings, is it

necessary to recite long passages

from earlier judgments or opinions

(which themselves are citable and

frequently cited). The punchlines,

with the necessary references, are

sufficient.

At one stage, counsel regularly

read, and sometimes still do read,

their speeches. Such a practice is

Submission of Articles

for the Gazette

The Editorial Board welcomes the submission of articles

for consideration with a view to publication. In general,

the most acceptable length of articles for the

Gazette

3 , 000 - 4 , 000 words. However, shorter contributions will

be welcomed and longer ones may be considered for

publication. MSS should be typewritten on one side of

the paper only, double spaced with wide margins.

Footnotes should be kept to a minimum and numbered

consecutively throughout the text with superscript arabic

numerals. Cases and statutes should be

cited accurately and in the correct format.

Contributions should be sent to:

Executive Editor,

Lew Society Gazette,

Blackball Place,

DUBLIN 7.