Miles Kington Remembered: Passive suffering: an extraordinary legal precedent

29 May 1998
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The Independent Online

A most extraordinary case is going on in the High Court at the moment, which seeks to create a new offence called "passive suffering". Here is an extract from yesterday's enlightening proceedings...

Counsel: Your name is...?

Plaintiff: Is it strictly necessary to know my name?

Counsel: Yes, Mrs Whittaker

Plaintiff: Ah, you know my name already!

Counsel: Of course I do. This is a piece of court formality in which we have to establish that you are indeed the plaintiff.

Plaintiff: Yes, I am indeed the plaintiff.

Counsel: And your name is...?

Plaintiff: The name you have just mentioned.

Counsel: Mrs Whittaker?

Plaintiff: Indeed.

Counsel: Of 39 Bloomdale Avenue?

Plaintiff: That very address. Do you ever ask questions to which you do not know the answer?

Counsel: Not if I can help it.

Plaintiff: I see. And what is your name?

Counsel: I beg your pardon?

Plaintiff: What is YOUR name? It seems only fair that if you, the defending counsel, should stop at nothing to establish the plaintiff's name, the plaintiff should have the right to cross-examine counsel until he admits his name.

Counsel: It is most unusual.

Plaintiff: I feel sure it would be easier for me to answer your questions if I could put a name to my interrogator.

Judge: She's got a point, George. Tell her your name and let's get on with it.

Counsel: My name is George Hansbury.

Plaintiff: And what is your home address?

Judge: Mrs Whittaker, I have to agree that this line of questioning is rather unusual. May I ask the purpose of it?

Plaintiff: Yes, my Lord. It is customary for counsel to try to unsettle witnesses with a series of unexpected and probing, though probably quite trivial, questions. I thought it was time a witness tried to unsettle a barrister with the same tactics.

Judge: Excellent notion! I like the cut of your jib, Mrs Whittaker. Carry on!

Counsel: Now, Mrs Whittaker, next door to you at No 39 Bloomdale Avenue there lives a Mrs Norman, does there not?

Plaintiff: No.

Counsel: No?

Plaintiff: No. She lives next door at No 37.

Counsel: Yes, that's what I meant.

Plaintiff: It is not what you said.

Counsel: Isn't it?

Judge: She's got you rattled, George. I think we've got a game on our hands here.

Counsel: About eight months ago, Mrs Norman had a burglary, did she not?

Plaintiff: Had a burglary in what sense?

Counsel: In the sense that a burglar broke in and stole things.

Plaintiff: No.

Counsel: No?

Plaintiff: He did not break in. He opened the back door and went in.

Counsel: Technically, in legal language, that constitutes a break-in.

Plaintiff: You may talk technical legal language among your colleagues if you wish. I prefer to talk English.

Counsel: My Lord, I appeal to you! The plaintiff is being very obstructive.

Judge: She is being very entertaining.

Counsel: This burglary caused great distress to Mrs Norman, did it not?

Plaintiff: It may well have done. It certainly caused a great deal of distress to me.

Counsel: I don't quite understand.

Plaintiff: Mrs Norman had a face-to-face encounter with the burglar, who threatened her with violence before running off. This put her in a recurrent state of shock for weeks, so I, as her neighbour, thought it best to talk her through it as often as possible. They say it helps a lot to talk.

Counsel: And did it?

Plaintiff: It helped her. She got over it. But I didn't. I started to take her worries on board. I started having dreams about burglary. As Mrs Norman put it behind her, I started to sleep badly, and became depressed. I had become a victim of passive suffering.

Counsel: And so you are suing Mrs Norman on the grounds you are suffering from her suffering?

Plaintiff: I certainly am.

Judge: I am finding it hard to follow this. Perhaps if we adjourned for lunch, Mrs Whittaker, you could tell me more about it?