Do what you do

I shouted liar at Charles Kennedy, the leader of the Lib Dems. He pronounced that his intention was to be an honest politician. Charles, my dear boy, that is as much as a fib as a lawyer saying he can never fight a hopeless case.

I shouted again, this time at Michael Ancram for the Conservative lot. His useless cross-examiner, John Humphrys of the BBC, asked him a question but Ancram slithered past the answer. Not much of a liar but a damn fine slitherer. But, oh, save me from that woman Barbara Roche, she of the New Labour lot.

She doesn't lie, doesn't slither, she doesn't do anything but make a noise. My electionitis got me to the point of refusing to turn out and vote at all; daft. Then it got me to the point of saying I will turn out and scribble "I protest" on my voting slip; daft. So I have decided to vote. More on this in a minute.

As for lawyers willing to fight a hopeless case, is that on? Is that the right thing to do? Does a solicitor or barrister even have a duty to argue a hopeless case? Let me tell you about a New Zealand case called Raylee Harley vs Robert McDonald. McDonald invested a large amount of cash in an outfit and lost it all. So he sued the outfit and also sued its indemnity insurers. He lost against the insurer. The judge had a strong word with McDonald's lawyers for pursuing this hopeless case. So much so that he ordered the lawyers to stump up tens of thousands in wasted costs for "serious dereliction of duty to the court".

That is strong stuff and sounds perhaps like gross negligence, rather than mere mistake or error of judgement. The law firm's reputation was severely dented by that outcome, to say nothing of its pocket. So it challenged the criticism of the first judge in the Court of Appeal. That court upheld the first judge's decision; he had done right. Still peeved, the law firm came to London, all the way from New Zealand. It brought its case to the Privy Council, the final place of appeal for Commonwealth countries across the world.

The lawyer must resign rather than mislead. He, the lawyer, is the messenger. He doesn’t make up the message

The Privy Council reversed the decision of the Court of Appeal and the first judge. It did so by pointing to the principles enunciated by the senior English judge, Sir Thomas Bingham. He explains how the duty of the lawyer is to advise its client of perceived weaknesses of the case and explain the risk of failure (and these days, how much it will all cost). But, he then reminds us that clients are entirely free to reject that advice; free to insist that the case be litigated. Crucially, it is not open to a court or arbitrator to assume that an apparently hopeless case is being litigated on the advice of the lawyers involved. The lawyer is there to present the case; it is for the judge or arbitrator and not the lawyers to judge it.

Pause please. Take the next bit on board: i t is one thing for a lawyer to present, on instruction, a case that he regards as bound to fail; it is an absolute no-no to lend assistance to proceedings that are an abuse of the process of the court or arbitration. The lawyer must never mislead the tribunal. No facts can be concocted, no fact once known concealed. The lawyer must resign rather than mislead. He can fight a case on the instructions given and facts said to exist and be convinced his client will lose. He, the lawyer, is the messenger. He doesn't make up the message.

So, you see, all is not what it seems. And that's why I have decided to vote on 7 June. Plato helped. It was that Ancient Greek laddie who explained: "It is the business of the rulers of the city, if it is anybody's to tell lies, deceiving both its enemies and its own citizens for the benefit of the city and no one else must touch this privilege."

No lawyer, no quantity surveyor, no claims consultant, no builder or architect or engineer may tell lies; the lie is in the sole protective care of the politician. Charles Kennedy doesn't really mean he has gone honest, nor has young Hague or the sitting prime minister.