Stranger than fiction: creative responses to fascinating legal judgements

"In 1966 there was a scripture rally in Trafalgar Square. A widower, Mr Honick, went to it. He was about 63. A widow, Mrs Rawnsley, also went. She was about 60. He went up to her and introduced himself. He was not much to look at. 'He looked like a tramp', she said. 'He had been picking up fag ends.' They got on well enough, however, to exchange addresses. His was 36 Queen's Road, Waltham Cross, Hertfordshire. Hers was 74 Downton Avenue, Streatham Hill, London, SW2. Next day he went to her house with a gift for her. It was a rose wrapped in a newspaper."

This could be the beginning of a novel, or a short story. It sets out its stall with assurance, delivering a hint of strangeness, a deft nod to intrigue. As openings go, it is up there with the best. It is not, however, a piece of fiction, but the opening paragraph of the judgment by Lord Denning MR in Burgess v Rawnsley [1975] Ch429. It is almost Chekhovian in style: clean, clear, no unnecessary adornment, already so many elements of the story set in train. In terms of his literary style, Denning is perhaps better known for the opening of Hinz v Berry [1970] 2QB40: "It happened on April 19th, 1964. It was bluebell time in Kent." Here, again, Denning locates the tale swiftly and cleanly in time and place before proceeding to lead the reader deep into the story: "On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a layby at Thurnham to have a picnic tea."

I am often struck by the similarities between the practice of law and the practice of writing. The shaping of narrative is central to both, for instance, as is the focus on language. Both understand the relevance of nuance, of tone, are alert to things which are not said, but may nonetheless be suggested or implied. Lawyers learn – sometimes the hard way – the things that can happen in the gaps and spaces, as well as in the briary word thickets. The following advice from Thornton's Legislative Drafting (Butterworths, 1987) would slot very nicely into a book on writing short stories: '. . . a word used without purpose or needlessly is not merely a tedious imposition upon the time and attention of the reader; it creates a danger because every word in a statute is construed so as to bear a meaning if possible. A superfluous word is therefore a potential source of contention."

Legal notices

When I was still a teenager, before I'd begun to study law, but already knew that I wanted to, I used to enjoy reading the applications for licences published in newspapers, or the notices advertising "voluntary winding ups". To me, they read like spells, incantations. I was captivated by the idea that a particular arrangement of words, a formula recited in the correct order, on the correct date, could bring about a particular result. These notices even had their own special formats. Harry Potter had not yet been invented, but these official notices were akin to the waving of a magic wand. Get the words, or some other necessary element of the spell, wrong and the thing wished for did not happen. Macbeth's witches had eye of newt and toe of frog; the legal forms had their "Take notice . . . ", their "premises situate at", the requirement for a full copy of the newspaper to be lodged in the court office, the advertisement itself enclosed by a red border.

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I am aware that many people perceive law to be boring

There was also the sense of history such notices conveyed. How many decades of legislative development unfurl themselves in a "Notice of Application for a General Exemption Order in respect of premises situate in the vicinity of a public market or square"? The near-occult state of legal language is augmented by its forays into Latin: noscitur a sociis; volenti non fit injuria; nemo iudex in causa sua (it is known by its associates; to a willing person, injury is not done; no-one should be a judge in his own case).

Banana ruling

I am aware that many people perceive law to be boring. Or perhaps they are prepared to concede that a drugs trial, say, might be interesting, or a murder, but they refuse to countenance that there could be anything gripping about the disputed interpretation of a subsection of the VAT acts. To those people I offer Carroll J in the High Court in McCann Ltd v S O'Culachain (Inspector of Taxes [1985]IR 298 pronouncing on the meaning of the word "manufactured" for the purposes of Section 54 of the Corporation Tax Act 1976. The case required the judge to rule on whether it was possible to "manufacture" bananas. There was disagreement between the parties as to whether artificially ripened bananas were "manufactured goods" for the purposes of attracting tax relief under the relevant section. The case is genuinely fascinating on the life cycle of bananas, and the history of banana ripening.

If a label were put on the bananas, 'Manufactured in the Republic of Ireland' what would be the reaction of the ordinary person in the street? I think the reaction would be: 'How can you manufacture a banana?'

Fiction writers interested in world-building could do worse than study this case’s descriptions of the ripening room, a place I picture in my head as a cross between a mushroom farm and the bridge on Star Trek; “Ethylene gas was blown into the ripening room and it penetrated the cells of the fruit.” Air-proof conditions were required, as well as precautions to avoid explosion. There existed only two or three people in the country with sufficient experience to manage the ripening rooms. In considering the meaning of the word “manufacture”, Carroll J said: “It comes back to whether an ordinary person would attribute the word ‘manufacture’ to the ripening process. On balance, I think not. If a label were put on the bananas, ‘Manufactured in the Republic of Ireland’ what would be the reaction of the ordinary person in the street? I think the reaction would be: ‘How can you manufacture a banana?’”

On appeal, the Supreme Court said that the word "manufactured" might be taken at first sight to be a simple word having widespread and unambiguous currency. Closer examination however reveals the use of the word in many differing ways; in some instances the word implies virtual creation, in others alteration of appearance rather than make-up, of shape rather than substance. The court went on to hold that the ripened bananas did come within the definition of "manufactured".

If there are similarities between the two professions, there are also differences. In those early days of writing fiction, when it was new to me, and my head was still in a lawyer’s space, I remember the thrill of blithely deleting a paragraph without having to wonder if I might get sued. Where the lawyer might fret, or go in search of second opinions, the writer just presses the delete key, shrugs, and moves on.

A detail from a painting generously donated by Elva Mulchrone features on the cover of Counterparts, an anthology that brings together fiction, personal essays and poetry paired with and inspired by extracts from law reports.

Motifs in Mulchrone's work centre on the visual representation of data. A former solicitor with a background in economics, her artistic practice includes interviews with academics and some of the world's leading economic thinkers. In an essay marking Mulchrone's first solo exhibition, Irrational Exuberance, at Eight Gallery in Dublin earlier this year, Niru Ratnam, writer and commercial director at ArtReview, writes about how Mulchrone presents us with visual fragments of research unhinged from their original sources.

Ratnam goes on to discuss how Donald Trump’s presidential campaign was characterised by misleading data visualisation employing techniques now common in marketing and corporate presentations. If infographics cannot be trusted, Ratnam says, then what exactly is their point? Mulchrone works with infographics as “a ghostly presence in what is a very indirect way of communicating with the viewer. If representations of information can never be objective, then perhaps it is more appropriate to watch those representations of information dissolve into that most subjective of visual arena; abstract painting”.

A sudden illness at the age of 40 meant I had to stop practising law and transfer my clients to another firm. And just like that, a rich seam of stories, language and drama closed.

When I think about Ireland’s housing crisis, I find myself thinking about how figures can become “unhinged” from what they purport to represent, and of the difficulties that can arise when the devastation of a family or an individual is depicted by a figure on a pie-chart, or a point on a graph.

A sudden illness at the age of 40 meant I had to stop practising law and transfer my clients to another firm. And just like that, a rich seam of stories, language and drama closed. Psychologically, I was cut adrift, but I was to discover that between the beginning and end of a short story was a space where I could still negotiate the world, even if I did have to write that world into existence first. When I began sending my stories out, a funny thing happened: I began to meet – at writing festivals, in workshops – lots of fellow lawyers also engaged in this strange business of writing. Although I was no longer practising as a solicitor, I hadn't forgotten the fascinating human stories and remarkable writing of the legal judgments. The law reports, it seemed to me, were deserving of a wider audience. And so was born the idea for Counterparts.

Homelessness

As I write this, almost 10,000 people are homeless in Ireland. Depending on how the data is represented, that figure may be even higher. All proceeds from the sale of this anthology will be donated to the Peter McVerry Trust, a charity that for over 35 years has been engaged in efforts to combat homelessness. The writers, as well as everyone else involved in making this anthology happen, have made their work available for free, and generous sponsorship by legal firms has covered the printing costs.

It will soon be 10 years since I last practised law. In a recent interview, speaking about the need for solidarity with people who are homeless, Fr Peter McVerry said, “People end up homeless because their path in life has gone in a totally different direction to the one they expected, often through no fault of their own. And most of us are very lucky our path in life has gone in another direction, usually through little credit to ourselves.”

I'm fortunate to be one of the lucky ones. Illness shunted my career in a totally different direction, and I have never regretted it. Which is not to say that I haven't experienced from time to time a tug back to law, a tug that has grown stronger while putting this project together.
This is an edited version of Danielle McLaughlin's introduction to Counterparts (Stinging Fly Press), published in aid of the Peter McVerry Trust. It includes the work of 22 contributors from all aspects of legal life. Danielle McLaughlin's debut collection of short stories, Dinosaurs on Other Planets, was published in 2015. She is currently writer-in-residence at UCC.