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)

Have you tried new the Independent Digital Edition apps?
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
Christian Grey cradles Ana in the Fifty Shades of Grey film
filmFifty Shades of Grey trailer provokes moral outrage in US
Life and Style
The veteran poverty campaigner Sir Bob Geldof issues a stark challenge to emerging economies at the Melbourne HIV/Aids conference
Arts and Entertainment
Benedict Cumberbatch and John Malkovich talk Penguins of Madagascar at Comic-Con
comic-con 2014Cumberbatch fans banned from asking about Sherlock at Comic-Con
Arts and Entertainment
Chris Pratt stars in Guardians of the Galaxy
filmGuardians Of The Galaxy should have taken itself a bit more seriously, writes Geoffrey Macnab
Sir Chris Hoy won six Olympic golds - in which four events?
Life and Style
People may feel that they're procrastinating by watching TV in the evening
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
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

Trainee Recruitment Consultants - Banking & Finance

£20000 - £25000 per annum + OTE £40,000: SThree: SThree Group have been well e...

Graduate Recruitment Resourcers - Banking Technologies

£18000 - £25000 per annum + OTE £40,000: SThree: Huxley Associates are looking...

Implementation Engineer

£150 - £200 per day: Orgtel: Implementation Engineer Hampshire / London (Gre...

Trainee Recruitment Consultant - Pharmacuetical

£20000 - £25000 per annum + OTE £40,000: SThree: Real Staffing, one of the UK'...

Day In a Page

Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform