Shortly after Terry unnecessarily but justly acquired his criminal record for actual bodily harm, the Stantons planted another thirty, healthy, one-foot high, Leylandii saplings, two feet apart, parallel to and six feet away from their litigious ten trees. It was these that I was forbidden to touch, under pain of prison. Neither could I cut the continuous beech hedge planted by the Trust that my neighbour wanted to grow into beech trees. Now there was another barrier beyond, should his litigation fail. These new, nasty, menacing little trifids ran the whole the sixty-feet width of the bottom of our gardens.
One dry, mild, spring early evening I couldnt help overhearing the deaf old man having a loud, animated, educative and instructive, arboricultural tutorial on copse planting, with a local, amateur, lady tree-enthusiast. Years later we found out that this nature-lover was still fuming about her unpaid, wasted time designing, planning, and having her brain picked. Stanton completely disregarded her advice after she left. The lady is resentful to be associated with what had then become the nationally notorious second hedge and her inspired choice of rare deciduous trees rejected.
Bernard was sixty-two and just retired in 1970 when the Bournville Trust conveyed him and Freda, a prime chunk of land of virgin Selly Oak countryside for just an extra £2 per year ground rent. A few years later they bought the freehold. It was a lucrative land grab. He used it as best as he could to try growing organic vegetables despite the existing garden being too large for a couple of that age to manage without help and he was too mean to pay for that. Kidding himself he was generous he offered the land use to Friends of the Earth but they were into campaigning not gardening. Particularly as his motive was control of the area His elderly neighbour solved his own management problem of the land gift bribe by planting a copse, a very prestigious, status symbol in the local community. It did not come cheap as the professional advice, planning, preparation, planting and maintenance cost money. The gesture looked good to these pretentious upper middle class retired professionals. Now, more than twenty years after, these neighbours long since dead their copse relapsed into woodland .Bernard was embarking upon the same strategy, by first eliciting a bit of free instruction from a willing donor promoting rare indigenous deciduous tree conservation. The old man was a notorious scrooge, generosity even to his prized, espoused causes for which he posed, was not one of his attributes. A BVT official of that era described him as a crook and the reputation of some close associates have been found to be dicey even if without criminal conviction. Professional colleagues in his younger days, still alive today, describe him as being very strange.
So hidden and very still, I listened and remained undiscovered on my side of the hedge, I took part silently in this significant freebie woodland tutorial and became an enthusiastic convert about old man Stantons absorbed interest and conservationist intentions. He had infinite capacity to kid himself which he had passed on to his son. It is obvious that an adjoining copse of selective, indigenous, deciduous trees would not pose problems to us in our lifetime, but without awareness, regular and careful management, some trouble could be posed for our succeeding owners. With neighbourly agreement, respect for mutual convenience by the regular removal of out of scale growth the copse, could develop into an ideal screen between both our properties and with the dreaded Leylandii removed, an extra nature reserve would be created, linking up with adjacent ones. Truly this was a problem for the future occupiers but the discourse failed to develop to this point. Bernard had not the conscience to develop an ideology of tree planting out of care for the future generation and ecology of the planet. Alternatively, he chose Leylandii as a weapon of power, control and retaliation against me. These dreaded thugs would grow five times faster than select, rare, native, indigenous trees and pose a problem in seven years. What is more is they were cheap, very cheap and he could plant them free, dropping them into a six inch spade slit sufficient to take a vile little root and a boot to firm it in.
In March 1992, at the end of a five-year parliamentary term, John Major called a General Election. After thirteen, hateful, Thatcher- years of private greed and affluence and the squalor of under-invested public services he would lose, for certain, everybody knew it, even his own party, they is why the call came at the last possible legal limit, right against the constitutional buffers, no escape. The Shadow Chancellor, John Smith, as honest and straightforward a gentleman as ever there was or ever will be, produced a Shadow budget telling the voters they would have to pay tax for Labour to put things right. Foolish fellow, honest politician is an antithesis in terms. No politician can succeed, look at Edwina Curry; you can still be honest without telling everything, at least not straight away and she had a lot to tell. The Green Party; laid out what had to be done for the future of the planet and everyone knew they were right but, only 4% would vote for them. They refused political sagacity because their manifesto with a little trimming and concealing the immediate cost, and of course a charismatic leader they would poll 15%, but bless them they would have none of it. They could not possibly win any seats but all could go to heaven and all lose their deposits. Neither of the two main party alternatives ever wins by promising more tax, so Honest John was applauded for his righteousness in not lying, a thing this honest fellow could not possibly do but he actually convinced a million or two of the electorate to change sides and vote Labour. This was not enough to change a government, as it needed slightly more than two million voters, and of course those extra voters told the pollsters they would vote Labour, because they felt mean at not being willing to support the NHS perhaps they were in a private scheme but in the privacy of the polling booth an irritable itch came in the pocket or purse and a firm steely hand guided the pencil against the Labour candidate if there was a chance he might win but, it was OK- risk it by all means if he had no chance. A part problem of ignoring the irritable itch and steely hand was the alternative Prime Minister. Neil Kinnock had lost his political credibility three years before when he changed his lifetime political conviction by ruthlessly discarding his faithful, adoring unilateralist nuclear disarmer friends .He always looked shifty when he tried to justify himself. His cynical mind change was based on the spurious advice of the rump of the traditional party right wing who had stayed loyal and not defected when the party split ten years before. Those guys were already drifting back into the mainstream. The grand betrayal done for the good of the country of course, and as the MacDonald precedence would have it, was approved by half the nation. It did not gain him a single vote because he was dishonest and the voters do not like dishonesty, do they? The cold war was finished and the electorate could not care less about nuclear disarmament but, if they thought enough savings could be made to invest in public services without raising tax they would vote for that. Kinnock was acting macho man and he was persuaded he had done the trick and raised a raucous voice at Labours notorious, mass Sheffield Rally.
Alright, alright he bawled to millions of wavering voters watching the news. It delighted the Tory campaign chiefs who sniffed victory at watching this bloke go completely over the top. But even that did not lose him a single vote. It was the continuous, nasty trashing by a nasty press since the turn of 1992 that started the long, long election campaign. There was distortion and spin but only on the record that Neil had provided the non-British editors of the gutter press. Walworth Road (pseudonym for the then Labour Headquarters produced a film to counteract it. Kinnock the Nice Guy was a glossy hype that abysmally failed to plug the gaps of credibility and straightforwardness in the public perception of the leader. The election campaign was deeply flawed and inexperienced researchers produced the case of Jennifers Ear. A loyal supporter claimed his daughter had been denied hospital treatment due to lack of NHS funding. The campaign researchers failed to find and interview Jennifers mother who was a loyal Tory supporter who emphatically resisted her daughters case being made public let alone the spin that had been put upon it. Again it did not lose a vote, but really the troubled waverers were asking themselves,
So if the NHS is not as bad as they make out, why do we need more tax? Labours poll lead was small, but sustained and victory was inevitable, everyone knew it and the Tories had convinced themselves they had lost. On the night of April 9th the exit polls confirmed it. Strangely enough Kinnock himself knew he had not won. The early declared Labour gains following the trend in once upon a time, ancient Labour territory but, these were in confined, quick vote counting, urban areas. Even so the results were frighteningly close. Locally, Selly Oak and Northfield where Tory councillors had long since been chucked out, Lynne Jones and Richard Burden had won. Hurray! That was great, wonderful news. As this wakeful night progressed and results poured in, many Tories who had been expected to lose held on to their seats by a whisker and at 4 am John Major passed the 317 seats winning post and a fourth term for the Tories. The nation was as stunned as it was in 1945 when Churchill lost. There was deep-seated depression and unease. A month later there was a sullen resistance of Labour supporters to vote in the local elections and in a low poll there was little electoral change.
I went to the pub at 1pm the next day, after listening till dawn and a sleep in. It was quiet nobody said much. Johnny was there, a convinced Labour supporter, very shrewd with matter of fact commonsense acquired from a few years of free board and lodgings at Her Majestys pleasure, and taxpayers expense. He had always intended to vote Labour but did not quite make it after his tenth pint had caused misjudgement (Jonnie never became drunk) of time before the closing of the poll. There was a Polling Station on the other side of the road for Northfield voters but he lived on the other side of the road at right angles to it and was a Selly Oak voter and his Polling Station was a ten-minute walk there and back of course in good drinking time. His partner, surprising him, managed to vote and she had never voted before and he was very proud of her. Molly always told us how much she loved him. But Jonnie, already into his third pint, after his previous evening excess went on,
She knows I dont love her, it was quite pleasing our local Labour woman whats her name, won but whether John Major is up to it no never in a thousand years but neither is Kinnock - yes, very bad the Tories got back. Jonnie died of alcoholism well before the next General Election.
I had really enjoyed the election campaign. In previous years when still at work and canvassing or delivering it was impossible to follow election campaign. Now at 64 years, retired with no desire and no intention of engaging in any electoral activity, I can be a watchful observer. Starting at 9.00 am each day, the radio was on in either of my greenhouses. If it was too cold and it rarely was the heaters were turned up. There is nothing more conducive to happiness and absolute contentment than seed sowing and growing ahead of season. Watching germination, pricking out and growing on is completely absorbing. Growth and vegetation increase initiates phenomena called a buoyant atmosphere. Breathing it in is euphoric impossible to describe other than inductive to a state of well being. Most people would relax and enjoy it and would consider the political battlefield as the last intruder acceptable in this state of peace. However I am a political nutcase and just loved the radio campaign news, the phone-ins to key personalities, the slip-ups and media pouncing. To you my reader, and the vast majority, my behaviour would be at the least absolutely boring and, to others shocking. That anyone should seek enjoyment out of anothers discomfiture, is the reason why politics is a turn off. I do not intend to excuse my mental processes now except to remind that the Tory win brought with it such sleaze and incompetence over the next five years that massive Labour majorities and three successive wins came about.
I got my pay off alright, shocked not depressed I just switched off the radio and gave my beautiful, wonderful plants full attention at those morning hours instead. And I had Maureen, Ian, Rosie and our lovely, lovely boys and the Baggies, just about to win promotion from the old third division. Why should I worry? If the nation wanted the Tories it could have them. The trouble is it didnt. But it wasnt any Annus Horibilis for us was it? You must be joking.
Out of the summer blue sky a black, menacing cloud drifted over and into our home. Stanton was demanding money, pots of money and revenge or as he might have told you, justice. His well paid legal team assured him we would pay up and settle at his demanding terms rather than go to court and lose a lot more, and what is more there would be interest on the amount due to him from a year before. Fortunately for his deadly design my lawyers attitude encouraged him. The chance of screwing us and postponing the collection date was a good an investment for old Stanton better than any offered on the market and to all intents and purposes a stone wall security. Of course, that was why he had put off his legal claim for a year.
A letter from our solicitor enclosed a document he had received from Abraham Lincoln with the familiar parallel. Tram lines, entitled
Amended Particulars of Claim giving a measure of damages between £2,000 and £25,000 plus. On this second submission, the Plaintiff added he had suffered distress and inconvenience as well as loss and damage.
Then there was a schedule of Special Damage. The trees are so damaged they can no longer sustain any growth and will die. The cost of replacement is £26,000.
If this is denied £2,000 for the diminished value of his land and £4,000 for the enhancement of my land. In addition he requires an injunction, damages and interest. It was mutually accepted legal costs after the last court hearing would be in the region of £6,000. Probably, the clients were congratulating their whiz kids for their brilliance on offering a wide measure for me to offer in negotiation or capitulation. In retrospect it was a ludicrous, inane document with deeply flawed legal and factual assertions. It was designed to obtain the best possible settlement for the client who had been assured by both sides would be on offer from us. It was not the sort of thing to proceed satisfactorily through the court system if, settlement was refused so, it was a gamble with considerable odds in favour of coming off but, a heavy price to pay if it did not come off. On the legal side there was one blatant error but on the factual side they were employing a very dicey defence arboriculuralist using three year old evidence that was no longer valid
i.e. the hedge was vigorous and strong particularly as seen from their side. (The stupid lawyers had not been back to check what was obvious to anyone let alone a professional.
Our Defence was required within fourteen days, the usual solicitors ploy to panic the opposition. My solicitor kindly put in his covering letter -
Our Counsel should be instructed to proceed immediately but, both teams have such a good relationship that time limit could be extended without difficulty, and postponement (and this snippet was in phone conversation) almost indefinitely by application to the court.
Procrastination was psychologically unacceptable to us, things had gone on for a year, the injunction or at least my enforced undertaking was in place, there was a frightener that a false accusation of meddling with hedge to get me in trouble. I found pieces of loose hedge thrown over. I thought it might be a frame-up but if it was not me who was it? If I had removed these twigs myself it would be a criminal offence, so I visited the police station and had a fifty-word statement denying any action on my part put in the desk log. It was impossible to make the civilian desk clerk understand but she did put it down.
The final sum I could be forced to pay was piling up with those exorbitant interest rates of the John Major years. That sum was a nebulous figure, a year ago Chinese whispers said it was £6,000 but that was let off if I dropped the assault charge. At that stage we could all have shaken hands, gone home, paid our own expenses and lived happily ever after. We were both in a hole, and the Stanton way of no compromise with that man made him dig a little deeper into hole and now they were digging again. The whole thing was a gigantic, playful and lucrative game, which the professionals could not lose. They always got paid. I could not accept that having been sold down the river by my team a year ago a small fortune was to be paid out of our savings to keep me in bondage. The hedge had grown robustly, the bright new foliage had thickened it out and the height had increased by a foot and at fifteen feet was now too high, nothing wrong at all, except we had to be punished.
We agreed with one another that we could not afford any more extortionate fees, would not submit to more Stanton bullying and I would represent myself and conduct my own defence. This terrified me, even more so that Maureen had absolute faith in me. I knew nothing about law other than that picked up in the last year and bitterly regretted the time spent in the greenhouse and the last ten months waiting for events instead of studying and preparing.
The first thing was to construct the defence and this necessitated, quietness and concentration. My gardening days were over for this summer and as things were growing fast Maureen took over and worked very hard. So did I, stuck indoors and trying vainly, hating every second. Sometimes an hour would go by and nothing would flow from my brain to my word processor, (then part of the old steam driven computer word processor). Of course, deep down I was thinking, contemplating and mulling, activities which for the next few years would occupy much of my life. After days, some fifteen hundred words, all justification for my actions was produced, dealing with and correcting the gross inaccuracies in my opponents Particulars of Claim. These were so ludicrous and suggested that if all the hedge height reductions I was alleged to have carried out were added up, the trees would be level with the ground or even of negative height. But here, just outside the window was a robust fifteen feet high hedge, a hedge mind you, whatever that term meant. A hedge along the fence was the item first mentioned in a letter to the BVT ten years ago and acknowledged as a common cause friction between neighbours on the Estate. There was a promise to deal with it in the next Newsletter, but in fact it came twenty years after. Officials came to survey my land four years ago because it was something they were prepared to do. The concept of survey did not include a hedge although all conveyance documents included the term. The Bournville Village Trust would write anything say anything - placate, mediate, acknowledge who held the high moral ground but ran away from any action likely to open up a can of worms.
Now, what I needed was plenty of help, not support of sympathetic friends but expert, professional help. I called upon my old botanist friend Tony Sames, living close by, who knew a lot about trees on Bournville land and conducted tree walks. He visited me but insisted he had not the legal knowledge or, as an ecologist, the tree physiological knowledge and the specific arboricultural know-how to support me in court - but as it so happened could put me in touch with a far, far better expert, the best in the land in fact. That he did, but to my acute disappointment his friend happened to be an employee of the council and his employment contract forbade him to attend court in the capacity suggested. But again, as luck would have it he had a close and valued friend, an experienced professional arboriculuralist, expertive in the very matter of concern to me. He explained that the Stanton tree expert was the established court tree authority in the Midlands and it was necessary to go outside the area to find a professional of greater qualification and expertise to contest his opinion and stand up to him in court. The snag was he was expensive and his travelling expenses and payment at high professional time rates would not come cheap. This seemed a better way to spend money than on lawyers who had been of negative help.
Engaging John Wetherall was my most brilliant inspiration, I sent him the papers, we swapped correspondence and telephone calls and he booked a visiting date. John had a very impressive c.v. and is even better now. He attended conferences with the Stanton expert and knew him well as they were both members of a then tiny, select association of nine national experts. Although very protective of a fellow professional John he profoundly contested the by now, three year old testimony to the Stanton affidavit, even without visiting the site, which at the end of June he did. A friendly neighbour to the Stantons kindly allowed him to take photographs the other side of the hedge, from a garden at right angles to it. I went with him. Viewing the end of the hedge I was astonished at the massive thickness and sheen directly opposite the early summer sun. That thickness was once double and spilled over my side until I had cut it back to the boundary, five years ago. It was seventeen feet high at this point, four feet higher than that opposite our window. The downward slope of the garden accounted for this discrepancy but also our land also sloped towards the Stantons. I was afraid of compromising my friend and neighbour for taking sides in the dispute. She was apprehensive of the future of one single Leylandii on her boundary with the old man and, to outlive him by four years and grow to enormous proportions. It was a fair way from her windows but close to a rare, slow growing deciduous tree, bought from a specialist arboretum. Her sympathies were with me rather that towards our mutual neighbour. She had not heard of our strife before our call and had not noticed any change in the trees or height of them due to my works. She herself was a botanist and widow of a very famous geneticist. This says everything about my 9 feet height reduction, not noticeable from a distance by an otherwise skilled observer whose particular, regular attention had not been drawn to it. We swapped observations on plant growth; particularly this specimen tree planted by her husband and overgrown, unwelcome seedling Ash, removed by serious gardeners which, if allowed to mature into a forest tree would be a nuisance in a generation. Everyone annually removed a dozen or so at an early stage. If houses and people were removed the whole landscape would be covered by ash and bramble. Then, we spotted Stantons new line of Leylandii, scarcely a foot high, planted in case the litigation failed.
When we returned, John plotted our side of each fence post and the connected them up. Thus he established a datum line for the whole of the 60 feet width of the garden. From that line he measure the distance of the fence to the centre of each trunk in the old hedge. It varied around 0.25 m. Every thing was significantly in metric measure and later caused a bit of trouble but it is 10 inches. Then these measurements were plotted along a strip of graph paper to form formidable, conclusive, vital, objective, skilled evidence both in the County and Appeal courts.
Imagining going into and being in the courthouse itself, let alone as a focal point in a courtroom, caused me problems and my two vivid experiences over the last year had failed to harden me. It was necessary to get rid of these nerves. Court proceedings are in public so I took to visiting and observing cases, whenever possible, to absorb the atmosphere, wander the crowded corridors, linger near to an interesting group, usually dominated by a bewigged barrister. Come with me dear reader for a moment - cast a glance but not for long, see, that one is dull, but look over there, that one is interesting, yes, that one there, yes, a fascinating elegant woman, wig and hair blended immaculately together. Now take your eyes away, what about that TV type, fat florid, scruffy gentleman with an age-encrusted wig and many others. The conversations together produced a low murmur, a distinct hum so different from any talk in any other working environment. Listen to the rich tones of patient explanation, sweet reason, exasperation or even despair exuding into the musty atmosphere of that Victorian, oak panelled environment. This had gone on for a century only to disappear for ever in a couple of years to transpose into brand new purpose built accommodation.
It mattered not what was uttered, it was its intensity. I went early one morning and went to the desk and chatted to the attendants, after a few times they recognised a familiar face and assumed I was a solicitor. These officials were near to retirement and shortly to be replaced by private, strict security guards. They had a wealth of anecdotes and spoke of their conditions of service, catering facilities etc. They knew many of the judges, some of whom were very kind and human and took a personal interest in them... They were fascinated and understanding of my problem and why I was there. I learned to look at and study the lists. Then, I was ready to go into a court and take interest in the case, the litigants, witnesses, lawyers and above all the judge. It was a great comfort to see an embarrassed, red-faced barrister, whose contribution was considered inappropriate ripped off by a judge. I did not see a single litigant in person and I was shortly to become one of these. Rumour had it that judges were not always nice to them, mostly intolerant and often nasty.
Birmingham Citizens Advice Bureau held a two hour session on Monday Evenings staffed by solicitors donated by City Centre firms on a pro-bono rota for a couple of hours. We were asked for a £2 donation for expenses and I always doubled it. It was usually newly qualified staff gaining experience. The firm of my opponents was often represented and on arrival, when asked to sign in at the desk, I had to assure the receptionist I had not already instructed a solicitor and give a brief statement of my problem. Then I declared that advisors from this firm would find a conflict of interest. It meant a longer wait and sometimes I was scarcely fitted in before the end of the session. I rarely got more than twenty minutes and as policy no notes was taken and no file kept. I only once got the same solicitor for the second week running. On entering the room it was necessary to give a brief synopsis only to be told immediately told it was too complex for the Legal Section to help me - it was necessary to have a solicitor. I learnt to include the anticipation of this when introducing myself. These were different professionals, looking a problem they had never tackled before and they gave me useful advice, impossible to find out of law books in my time frame of less than half an hour. These guys were straight from law school and I was given good sources of information
Go to Birmingham University Law library, it is open to the public and is not in use by students at the moment declared a youngster who still looked a student. At my second interview I was asked to keep in mind the usual formal strict first warning but acknowledged that I had ability to produce an impressive fifteen hundred word defence. This she skimmed through quickly and said, as this would be my only case I could give it all the time it required.
Solicitors she emphasised, solicitors have very many cases and judges fall over themselves to help the litigant in person. This was the opposite of what others said. My sessions took up the evening, going into town, parking the car, walking to the centre and then the inevitable wait, but this last statement impressed me and gave me confidence.
As all students were on holiday, The Birmingham University Law Library was empty and the staff was overwhelmingly helpful. I talked my problem out and they were on my side completely, one of them adding she had a family member had a tree problem. They knew where all the books were and assisted with photocopying, less than commercial rates -an expenditure on which I indulged lavishly to study later, avidly at home.
Then there was something else I had been interested in trying out for about a year. Ed Doolan presented his own phone-in help show on Radio WM and advertised for the Law Department of Central England University. Their Free Legal Representation Unit was desirous of taking up cases, obviously on a pro-bono basis for the benefit of students. I rang Patrick Dalton who ran the unit, but at the moment, as he was without students, he was freer than usual. Patrick was a super-conscientious man and this wonderful selfless attitude led to an early, very sad death. He was intrigued and fascinated by a case that involved so many aspects of law and another academic discipline, i.e. arboriculture. He asked for the papers and rang me a couple of times before asking me to go to see him. He explained that his knowledge was purely law and would advise me on a number of points but it was so complex and involved such a degree of damages he could not take on my case. I must have a solicitor and was deeply sorry for me and my wife, with whom he had talked on a number of occasions, in fact he like the ladies. He spared not my feelings. He assured me I was absolutely guilty, and submitting a 1500 word defence like mine would be useless in fact his imagination boggled at me being ripped apart in court. My confidence was shattered and I asked him for the points on which he could advise me. You must cut it down to two hundred words answering point by point. He helped to write down my defence but whilst doing so rejected the larger part of it as too self incriminating but there were some very, very useful sentences.
The Defendant admits technical trespass in entering air space over the Plaintiffs land.
The Defendant denies that distress and inconvenience can be the subject of pecuniary loss.
The Defendant denies that an enhancement of the Defendants land by the damage of trees can be the subject of any loss or damage for a claim in tort.
These were pleadings of real law knowledge - a product of years of learning, then teaching, then absorbing law until it was part of his very system.
Great and interesting stuff. Patrick Dalton then reverted to lecturer / student relationship and demanded,
What is tort? My answer was immediate,
A civil wrong. He had asked me that on two previous occasions. The trouble was he was convinced I was as guilty as hell and put up the same brick wall barrier when Schedule Two of the Bournville Village Trust Management Scheme was placed directly in front of him. In the first nine lines, the status of hedges was precisely defined. He took a glance and dismissed me with,
Meaningless, you have to get yourself a solicitor Patrick knew the law so well but he just failed to appreciate the facts as his mind focused entirely on ten trees in the indictment. He was going to visit us, but was too busy; had he done so it was not possible his mind set would change because he was a lawyer.
It was coming up a year ago that I first brought some pressure on the Annual Meeting of the BVT through their Birmingham City Council member, Clive Wilkinson. I had kept legal secretary Victor Thomson up to date with events and he rang me after receipt of copies of the Amended Particulars of claim I had sent him. He had been a solicitor himself and brought me news that made me whoop for joy the Stanton writ had expired, as it was not followed through within one year and also the injunction. That of course had to be verified. I went into the court administration office, about a mile down the road from the courthouse, something I had only just found out. Files had to be transported back and forth and I bet things went wrong, you can bet your life on it they did. It was busy and there were queues filing, divorce papers, paternity orders, debt claims, etc. I queued and waited and waited and asked about the expiry. There was discussion and the Head clerk had to be fetched, he did not know and moaned,
This is not easy. I thought he was brushing me off and was a trifle rude, but perhaps he was just unwilling to explain that he needed a judges opinion and the file had to be transferred back. The papers had been lost, not even mislaid. It would be dangerous to wait for that opinion as the deadline of 29th July was fast approaching and it would be horrible to lose the case by default.
I went to the Legal Section of the CAB that evening and was at my best at brevity in introducing history and background to the case for yet another new counsellor on the rota. Of course my case would be chatted about in the legal unit staff because no other client brought such a complicated brief. I carried only my defence details with me for my twenty minutes of free time. We talked in the private consultation rooms also used for the daytime non-legal advice practice but no office administration or files were kept for the legal work. The focus of attention was on my defence but brought no congratulation. I was both astonished and touched by the concern involved in a slashing reprimand,
You must file that defence, tomorrow. That was my intention but the prime importance of the effort needed the last scan of a professional. There were a couple of days to spare and I was waiting until the penultimate day, taking it in not posting, but thoughts were interrupted by the lady adding, more sympathetically than angrily,
This is very serious, you know, you could lose a great deal of money. Then followed a surprising thing,
You dont have to let the other side have it that is the duty of a county court to do that but not of the appeal court; at least I am almost sure. Ill go check with my colleagues and confirm that. Upon return she went on,
Yes, I am right, but as solicitors it would be a matter of professional courtesy for us to send copies to the other side. I murmured to my self,
Damn that for a tale that is the last thing I want to be to that lot. She was looking at my six word first sentence,
The Plaintiffs particulars are not correct. Those six words replaced twelve hundred words in my painstaking liturgy, a stupendous effort in abbreviation. Then, I was given a pearl of information, something that must come late in solicitor training. There was such a thing as asking for
More and Better Particulars of Claim. As it sank in, it delighted me that I could actually bring pressure on my opponents to admit or deny the falseness of their assertions without me having to do it and a judge making up his mind who was telling the truth. Then I was given a quick, classroom lesson on how to go about it, printing in capitals a title between the familiar tramlines of a court document. I thought I had grasped it broad principle but did not appreciate there was more precision in the detail to it. I made my moderate effort but got less than ten out of ten for it, the next week when unusually, the same counsellor gave me more of her free time but, again scolded me strongly for not paying more attention.
Twelve days went past after posting and I had not received an acknowledgement let alone a reply.
Was my request too amateurish or was it such a surprise that giving more and better particulars really caused some difficulty? It really was the latter. I did not know whether it was possible but my mind told me that if a first request had not brought an answer it was time to do a second request. This time I produced an accurate format.
Now was the time to use my blank, unused form N9 in the bundle of papers brought by the Solicitors clerk and her heavy companion more than fourteen long months ago ago. N9 is a standard, printed form with large, empty boxes with titles. It is all drafted to help the semi-literate poor debtor who cant or wont pay his bills. There are tiny boxes to tick, spaces to offer payment or part payment, weekly, monthly, annually, list your income, pension, allowances and reminders of familiar items of household outgoings, food, gas, electricity, mortgage, rent, rates, alimony. I ignored all that as the Stantons were not going to know about the intimacies of my private life. The large box, a third of a column gives space for a defence and by the side of it in the next column similar space for a counterclaim, and that struck me as interesting. There was not enough room to hand write it and I typed it, it was still too big, so I touched the condensed key, and at half size it fitted perfectly. It was something easy on my old processor. It was a great defence that lasted intact for three years before many courts, many an accolade and congratulation was offered me by many eminent persons and it was made out on a humble regular, common or garden sinner answering a summons. Who packed this N9 in that insidious bundle, so comparatively speaking, so long ago? Was it the office clerk doing regular, normal duties when asked to post a summons? Or was it Abraham Lincoln, the great man himself who had the idea of me as an OAP with restricted income genuinely trying to pay week-by-week to his demanding client? We will never know. So I took this paper to the Court clerk in the courthouse. Someone would be trying to find a file that had just been taken to the administration building a mile away. Someone had to photocopy it before sticking it in the purple-ribboned bundle of judges papers. It would take ten days to reach the Plaintiff, but that was not my fault. We must have tremendous admiration for the clerks at the end of the old regime in Birmingham Civil Justice as they were not typists and wrote documents and copied judgements in longhand. The typewriter stage had not yet been reached; that stage was skipped to go straight into computers, as the brand new, comprehensive building, on one site was being prepared.
A week or later Terry Stanton swept down the croft in his everyday Jag, not his posh, best weekend one with personalised plates or, his Rolls-Daimler for very best occasions. His arms rose in exaltation giving me a triumphant, piercing, sustained look good job there was no traffic coming the other way. His solicitor had told him the good news that the summons was not to be defended and he was thinking,
At last, Ive got Jones now and hell pay up thousands and lose his house for murdering my mother, stressing out my father and lying on oath to get me a criminal record.
The court beaurocracy would grind its weary way to returning the summons and then Old Abe would be puzzled instead to get a demand for more information about a complex arboricultural problem and learning of two of his Counsels, professionally drafted particulars were contrary to the law of tort.
I went back to court administration to ask if any news had come in about the expiry of the Stanton summons and was told that I would have to apply to the court. There was no queue and the lady was intrigued and wanted to know more because this sort of business was transacted in solicitors offices. She was sympathetic about the hedge growing out of control; she had the same problem herself but came up with,
Apply to the court to lift the injunction? I gasped,
I cant do that can I? and was replied,
Why not? Here is a form, do both applications together, you can do it over there. She handed me a biro and a board to rest my application on. Clerks are prohibited from giving legal advice, but this wasnt legal advice, was it? Whatever it was, in a second my mind-set changed gear, the course of my case zoomed as I took the battle immediately and directly to the enemy. Now I was definitely not going for the writ expiry query, I was only going to apply for the lifting of the injunction and wrote, on form N244, after the printed capitals I WISH TO APPLY FOR
The lifting of the undertaking ------ I am obligated to maintain the designated boundary hedge which grows substantially on my land under the covenants of the Bournville Village Trust
(The legally minded will be interested that Lord Justice Millet in his Court of Appeal Judgement two years later used the word deemed twice such was the importance to the case)
No longer was my sin that of lopping ten trees I had tried to expunge that dreadful emotional word from conversation and I was asking to be allowed to do what the law demanded of me when signing my conveyance. It was delightful to receive an acknowledgement in a matter of days that a judge would hear my plea on the 14th of September. That set me thinking that while the judge was there about what else could he consider at the same time.
Do you remember me telling you about my solicitor friend, QE1 (Queen Elizabeth I)? She was half of the barrister / solicitor partnership willing and on my behalf, to prosecute the government, British Rail and British Nuclear Fuels (as they then were), purely on a pro-bono basis. I had told no one about this and it was to be a strict secret until I had secured powerful media support and loads of money for the action and financial security afterwards against probable costs on losing. It would be a protest on behalf of many supporting organisations against the transport of dangerous nuclear fuel in my area and lack of adequate safeguards against accident. Anyhow that is enough of that, all this was in the past, given up a couple of years ago, another story, in fact a possible saga, it was a good job no one was told. This is the first anyone has been told except that I shall never divulge names so I shall refer to QE1. There was no way the grand project could proceeded and I pledged myself that having got rid of this present, sordid bit of local legal nonsense I would never be in the mood for the more superior stuff. All had been put on the backburner when I had to deal with the Stanton shenaganins because this involved my home and old age security. However Patrick Dalton had mentioned QEI as his most outstanding pupil and certainly she had become a legal legend defending high profile clients in the lower courts. I mentioned another such solicitor friend who served me well in an earlier chapter but that was twenty years ago. I had thought about him again and no doubt he would not have turned me away but he had retired some time ago. As I write he has recently died. That is yet another story to which we will not return. I went to see QEI and she was quite emphatic she did not deal with my type of case, but felt it to be so serious as to necessitate a specialist solicitor. I mentioned Patrick Dalton and that explains the relationship. However she gave of her time, help and suggested a number of options. I took Maureen along to see her the second time. She conformed to her reputation of lateral thinking not the Pavlovian, slavering acquiescence of roll over and let the bullies kick you to hell and, by the by Im getting well paid for it. When she responded in writing her first paragraph was to sue for hedge invasion trespass. But I had defied assault and violence of removing the trespass of Stantons encroaching forest over my side, five years before but the roots were still there, very tricky to prove, of course but I was not very bothered about them so the idea was dismissed.
QEIs second alternative was bringing a counterclaim for damages for the assault and nuisance like the inability to grow things, blockage of light and spoiling of view. In the latter two she was wrong and Lord Tim my first, dark, moustached barrister in his notorious thirty-second glance at our conveyance had dismissed any right to light. We have no legal right to a view but that will come up much later in my story.
The next suggestion for inclusion in the counter-claim was to strike out the action on the basis that it was frivolous and an order demanding the hedge does not trespass again.
Then there was a suggestion we pay a sum into court. If the Stantons take it, the action is finished, if they win and the court awards any sum more than our sum we would pay the surplus but if less they would lose the action both costs and damages.
This is an emotionally tortuous decision that will be referred to later.
Occupations and gender contrasted the advice she was giving but the skills, the thought patterns of both, were complimentary rather than conflicting. I did the things I liked and ignored the rest. I would take my own initiative and at the same time learn one hell of a lot of practical law that would normally take years. The risk, the newness, the sheer audacity increased my heart beat, made the adrenaline flow and gave me a bit of a high.
So I decided to make further application to the court rather than a counter-claim but this time it was longer and more complex than the first and in my familiar, near letter quality, condensed type on a standard N224 form used by sinners and reprobates I followed on the words -
I wish to apply for
The action to be struck out due to time-lapse and because it is frivolous and in which case I will withdraw my counter-claim.
Permission to file counter-claim and join Terry and Bernard in their action against me.
An order against the Plaintiff not to trespass and cause further nuisance by carrying out regular and reasonable maintenance under the BVT guidelines and covenants.
Looking at number two now it is barmy, but as the Stanton team ignored it and the Judge was very helpful about it no harm was caused.
I filed this with the court straight away and then went to the Library to find out more about counter-claims. The Stanton v Jones case bundle would have to be tracked down again and my paper slipped in and the obligatory copy sent to Abraham Lincoln.
Now was the time to spend a day or considering my counter-claim and indulge a love. It was wonderful being the University Law Library. A short journey, plenty of car space, no hassle and a relaxing walk. Empty of students I got immediate and helpful assistance. Very quiet, no interruptions, no rush to work, absorb the atmosphere, peace, almost as good except for the mustiness, as being alone with my growing seedlings. Certain well-used volumes were not available to the general public but this rule was overridden, for me, in these quiet times. I wanted the Green Book, a voluminous text on County Court Practice and Procedures to which there were numbers of updating appendices. It would need a years reading and a phenomenal memory to take in the detail of everything. However the small and constant updates would be on all solicitors office shelves and I suppose the professional would acquaint themselves with new rules as they were produced.
Luckily I got the loan of a book just for a few days on Preparation for Solicitors Final Examination from a colleague of Ian whose wife was in her final year. There was clear information was that items in a counterclaim need not be directly relevant to the claim.
(When the action was finally over and these efforts were just ignored I asked my next Counsel and solicitor what had happened to this and they told me it was rubbish they would have lost marks when answering that question)
However I used my ingenuity to the full and in the second column, next to my defence I inserted claims against both Stantons following the invitation
What is the nature of the claim you wish to make against the plaintiff?
Loss and technical trespass in entering my air space; I do not deny he was obligated to do so when carrying out his maintenance duties. Damages against Terry for actual bodily harm and his conviction. Admitted possession of a firearm and its threatened use and assault by iron pipe and water-jet. Erection of a high tower contrary to management covenants. Bonfire nuisance for which an abatement order was issued. Libel and slander.
Is your claim against the plaintiff more than his against you? Yes.
I was very satisfied with my attempt having used up all possible advice from QEI and my own studies and deposited at court administration without showing it to anyone. I did feel the need to take it to a CAB Legal representative and turned up very early so as to be first in the queue, but so did seven or eight others. It was August Bank Holiday Monday and none of us had received any indication that the Unit would not be staffed. There was no notice on the door. We all took to chatting having some regard to who had arrived first. There were three or four quite desperate to obtain advice and it seemed normal to ignore privacy and to seek useful information from one another. I could deal well with the others problems none of them required a solicitor. They needed to know the appropriate to go to now. Three were involving complaints against doctors or dentists. There was no one better than me to tell them who to write to in the first place on their consumer complaints, and housing problems. All these were more adequately dealt without wasting time of the highly legally qualified. Clever people were not required for this mundane advice but I felt a thrill of confidence and it was doing me good. It just meant I did not show my counter claim to a professional.
John Wetheralls bulky, affidavit was ready all but for its final assembly, binding and swearing on oath. It was the magnificent production of a highly qualified professional .in his own very small field. But a surprise zoomed over the horizon, in response to my official, legally presented request; Abraham Lincoln had posted me some
Better Particulars of Claim with a copy of a missive from the Stanton arboricultural expert. Mr Finch dated a year ago. His report had been mislaid in the old mans jacket. Even in the photo-copy you could see the creases clearly but its absence was the reason for the delay in a reply. So it was a year old and now three years older that the first report that had thrown the case into the courts. It was a document of doom because he stated that the trees could not possibly be salvaged and the only solution was a telescopic crane to hoist grubbing out machinery over roof tops and the planting of semi-mature trees at a cost of £25,703.13. His horticultural distortion was quite insidious for he played on a laymans limited experience of having to pinch out growing tips of wallflowers, stocks and annuals. He alleged I had removed the central core of foliage anyone knowing anything about Leylandii knows that such does not exist. He had a reputation of reliability as an expert witness in legal circles and this rough sort of patronising thing to reduce to simple terms could carry credibility in a court without an expert capable of challenging him. He must have got away without challenge in previous court appearances. Abe Lincoln told me he considered his employment a mistake but he had been taken on before he handled the case. Little did he know, when he drew up his report that he would up against a superior professional. Anyhow, John Wetherall could now amend his affidavit to encompass what Stanton team would be relying upon in court just before it was handed in. It was very sound judgement of mine in getting these further particulars. Abraham Lincoln did not send me any further particulars to the ones contrary to tort supplied by the law doctor of course he did not know from where my knowledge had come. He assumed I hadnt a clue about such abstruse law and he was dead right. Instead he stated that this was a matter for an expert witness. Who this was we did not know but it was a legal matter and should be the job of Counsel. So I immediately sent a third demand for better particulars.
John Wetheralls classy presentation was in marked contrast to the pathetic, unprofessional presentation of his counterpart, Mr Finch. John had produced a wonderful pull out graph of the position of every tree along the boundary. Rich photographs showed the superb condition of the hedge, with close ups of lush, healthy growth, my wonderful garden, a couple of letters from the Bournville Trust and the Estate Management Scheme which in its second schedule defined hedges, walls and fences along boundaries as a mutual responsibility. Here for the first time before the courts, a copy of the Guidelines recommending hedge heights of six feet six inches.
Without professional guidance I produced a brilliant parcel of exhibits for the court.
1) A letter from Stanton containing promises to my solicitor twelve years previously.
2) The letter from Abraham Lincoln to me giving me no time to reply to the proposed cause of action that started up the court proceedings a year ago.
3) Letter from my solicitor explaining the hospital emergency preventing the firms reply.
4) The third unanswered request for Better Particulars.
These were enclosed in a folder with the familiar tram-lines entitled
Defendants Application to the Court 14th Sept 1992.
I took these to Court Administration.
The familiar solicitor package dropped through the letter-box of Abraham Lincolns firm. But the man had been busy, very busy. A letter came through the post next day stating that we shall be opposing your application to the court and the enclosure was his affidavit.
I am a solicitor of the Supreme Court and the senior partner-------and oppose the Defendants application on grounds of time lapse and action is frivolous------ I produce a schedule which details the progress of the action
There followed 24 items the most significant being on the
19th February the expert valuers report was received. This was the item I was pursuing by means of Better Particulars of Claim
25th May a chaser letter had to be sent to the Plaintiff. Here was proof the old man was holding back thinking the outcome was on his side and he was waiting interest on his investment to accrue
9 Sept (only two days after it was sworn) an acknowledgement of receipt of John Wetheralls affidavit.
The remainder was an irrelevant account of my activity and padding.
Very unconvincing but it worked with the judge or something did I was told subsequently it was the enormity of the claim.
Everything had been handed in, all my cards were on the table and my opponents had all I had to offer I just couldnt think of anything else. Now it was time to gather together the bits and pieces assemble them into a logical structure for my speech to the court. We decided to type it and I would read it. It was a thorough and valid piece of work. Ian said it should be deposed with the court and, ever afterwards believed that but I thought so much was before the court already it would be best presented verbally. We worked together closely for a day. What I resented bitterly was sending the boys away after the briefest of cuddles.
(Fourteen years afterwards I have just written an essay in which this is noted with guilt and resentment)
Grandma came to her own, a ready repository for demands of love and cuddle. Come Saturday all five lads came together to go to the Baggies. That was Ian, Christopher, Andrew, Jim Cowling our friend, next door but-one neighbour and me. We loved the old Star and Commercial; before every game it was a blessed relief for three hours every fortnight. We were over the shock of relegation; got used the quaint names of our fellow teams in the old third division and enjoyed winning far more games than we lost. So we felt better each Saturday evening rather than worse.
I had spent two months, hour after hour, day after day,
absorbed, obsessed, dreaming, mulling but what of Terry Stanton? It
had not been a lucky time of the year for his last three mid-Septembers.