Law: Great British oratory or plain Euro-waffle?: Adversarial questioning is becoming established practice in the European Court - though the approach has its critics. Adam Sage reports

THE lawyer from the European Commission, a neat, dapper man with a goatee beard, got to his feet to explain the case. His submission lasted 15 minutes and consisted of little more than a short prepared statement, like a committee clerk going through the minutes of the previous meeting.

Assuming that his work was over, he glanced at the five purple-robed judges and prepared to sit down. But he was mistaken. Judge David Edward, the United Kingdom member of the European Court of Justice, had a number of questions to ask him.

What was the European Commission doing, Judge Edward wondered, paying money to Burkina Faso when it had been asked not to? And why had the commission ignored the ruling of the Belgian judge?

The lawyer prevaricated, Judge Edward insisted and the lawyer mumbled an answer. It was the sort of cut and thrust that is familiar to British observers, but is a new phenomenon on the Continent, where courts are used to conducting proceedings in writing.

The case turned on a dispute about development aid that the commission had paid to the government of Burkina for the construction of 210 wells. A company, Forafrique Burkinabe SA, had carried out some of the work, digging the wells, but never received the pounds 206,000 it said it was owed. No one knew where the funds had gone. The firm had abandoned efforts to sue the national authorities and was instead taking action against the European Community. It was particularly angry that the commission had continued to pay funds even after legal action was started in a Belgian court.

The hearing was interesting as an insight into the workings of the EC, which argued that it was answerable only to the European Court, and not to the Belgian authorities, and that anyway it was of no concern to the commission if its funds did not reach the firm building the wells.

But the hearing was also interesting as an example of how the European Court had fused the Continental tradition of written evidence with elements of the British legal system. Before the arrival of Britain and Ireland into the EC, the judges at the court never questioned lawyers appearing before them, relying instead on written submissions. But the British and Irish, brought up on adversarial traditions, have changed all that.

At first, such questioning was frowned upon by judges from other countries, who found it irrelevant and said it did little to help their understanding of the case. Gradually, however, attitudes changed and among the court's 13 judges there is now wide acceptance of the advantages of detailed public questioning.

But can Britain, in turn, learn from the Continental approach that lies at the heart of the European Court of Justice? This works as follows: when a case comes to court, both sides produce written submissions. One of the judges is designated as rapporteur and charged with producing a summary of the case. The hearing is short, with counsel largely rehearsing arguments that have already been detailed in writing. They have no opportunity to waffle; one of the rules is that they may only speak for half an hour.

The next stage involves an advocate-general, an adviser to the European Court, who produces opinions on all the cases that go before it. Such a document forms the focal point upon which the judges base their discussion before coming to a final decision.

Members of the court say that it is essential for them to focus their deliberations on written submissions because of the complexity of the cases, especially as interpreters are often needed.

They point out that in Britain, too, oral traditions increasingly need to be backed by written documents. In complicated cases, the sort of rhetorical flourishes employed by Rumpole of the Bailey are no longer suitable if judges are to follow the arguments.

But should barristers be muzzled at the end of half an hour? Judge Edward is cautious, saying: 'It is useful to limit speeches in the European Court of Justice, not because it shuts lawyers up, but because of the language problem. It is frankly counterproductive to speak for a long time.'

Some of his colleagues are privately more forthright, questioning whether it is necessary for lawyers in Britain to speak for days on end. 'It is much easier for a judge to read than to listen,' says one. He says it would be cheaper and more efficient to dispense with all but short oral arguments - and it would produce better judgments.

Nevertheless, some lawyers are wary, pointing out that at the European Court the press and public are denied the opportunity of reading all the submissions and therefore scrutinising all the arguments. In Britain, they say, such a step would cut across the principle of open justice.

(Photographs omitted)

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Front-End UI Application Developer

£30000 - £40000 per annum + Benefits: Ashdown Group: Front-End UI Application ...

Recruitment Genius: Digital Account Executive

£18000 - £26000 per annum: Recruitment Genius: They work with major vehicle ma...

Recruitment Genius: Service Engineers - Doncaster / Hull

£27000 per annum: Recruitment Genius: Domestic Service Only Engineers are requ...

Recruitment Genius: Employability / Recruitment Adviser

£23600 - £27500 per annum: Recruitment Genius: The Employability Service withi...

Day In a Page

Where the spooks get their coffee fix: The busiest Starbucks in the US is also the most secretive

The secret CIA Starbucks

The coffee shop is deep inside the agency's forested Virginia compound
Revealed: How the Establishment closed ranks over fallout from Loch Ness Monster 'sighting'

How the Establishment closed ranks over fallout from Nessie 'sighting'

The Natural History Museum's chief scientist was dismissed for declaring he had found the monster
One million Britons using food banks, according to Trussell Trust

One million Britons using food banks

Huge surge in number of families dependent on emergency food aid
Excavation at Italian cafe to fix rising damp unearths 2,500 years of history in 3,000 amazing objects

2,500 years of history in 3,000 amazing objects

Excavation at Italian cafe to fix rising damp unearths trove
The Hubble Space Telescope's amazing journey, 25 years on

The Hubble Space Telescope's amazing journey 25 years on

The space telescope was seen as a costly flop on its first release
Did Conservative peer Lord Ashcroft quit the House of Lords to become a non-dom?

Did Lord Ashcroft quit the House of Lords to become a non-dom?

A document seen by The Independent shows that a week after he resigned from the Lords he sold 350,000 shares in an American company - netting him $11.2m
Apple's ethnic emojis are being used to make racist comments on social media

Ethnic emojis used in racist comments

They were intended to promote harmony, but have achieved the opposite
Sir Kenneth Branagh interview: 'My bones are in the theatre'

Sir Kenneth Branagh: 'My bones are in the theatre'

The actor-turned-director’s new company will stage five plays from October – including works by Shakespeare and John Osborne
The sloth is now the face (and furry body) of three big advertising campaigns

The sloth is the face of three ad campaigns

Priya Elan discovers why slow and sleepy wins the race for brands in need of a new image
How to run a restaurant: As two newbies discovered, there's more to it than good food

How to run a restaurant

As two newbies discovered, there's more to it than good food
Record Store Day: Remembering an era when buying and selling discs were labours of love

Record Store Day: The vinyl countdown

For Lois Pryce, working in a record shop was a dream job - until the bean counters ruined it
Usher, Mary J Blige and to give free concert as part of the Global Poverty Project

Mary J Blige and to give free concert

The concert in Washington is part of the Global Citizen project, which aims to encourage young people to donate to charity
10 best tote bags

Accessorise with a stylish shopper this spring: 10 best tote bags

We find carriers with room for all your essentials (and a bit more)
Paul Scholes column: I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England

Paul Scholes column

I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England
Jessica Ennis-Hill: 'I just want to give it my best shot'

Jessica Ennis-Hill: 'I just want to give it my best shot'

The heptathlete has gone from the toast of the nation to being a sleep-deprived mum - but she’s ready to compete again. She just doesn't know how well she'll do...