Divided loyalties

It is sometimes tempting for solicitors to let sympathy
for their client, or even just
a desire to win, override their duties to the court.

The consequences of doing
so have been the central issue
in two recent cases, in which
the court has underlined in clear terms the necessity for solicitors and other lawyers to ensure that they have proper regard to their duties to the court.

In Brett v SRA, the High Court considered an appeal by a solicitor in respect of findings
by the Solicitors Disciplinary Tribunal (SDT) that they had acted without integrity and knowingly misled the court.

The court partially allowed the appeal as it could see no ready distinction between ‘knowingly misleading’ the
court and an allegation of deceit/dishonesty. The court did, however, make it clear
that misleading the court
would always be regarded as serious misconduct on the
part of an advocate or litigator.

Having cited a number
of judgments emphasising
the importance of the duty
to the court, Lord Thomas
of Cwmgiedd CJ said:
“…misleading the court is regarded by the court and
must be regarded by any disciplinary tribunal as one
of the most serious offences
that an advocate or litigator
can commit. It is not simply
a breach of a rule of a game,
but a fundamental affront to
a rule designed to safeguard
the fairness and justice of proceedings.”

The judgment does recognise the ‘divided loyalties’ of solicitors engaged in litigation and appears to acknowledge that ethical dilemmas do not always have a clear resolution. The suggestion that solicitors who become aware that there
is a potential risk of misleading the court should consult a more senior member of their firm
or seek independent counsel (making full disclosure, of course) is likely to be one endorsed by both the Solicitors Regulation Authority (SRA)
and the courts who seek explanations for the conduct
of solicitors.

General warning

The sentiments in the judgment are echoed throughout the case of Okundu v Secretary of State for the Home Department in which the Upper Tribunal (Immigration and Asylum Chamber) considered its jurisdiction
to impose wasted costs orders
and to refer solicitors to the
SRA for investigation.

The case concerned applications against two solicitors firms for wasted costs orders. In the event, wasted
costs orders were made against both firms, and one firm was referred to the SRA as there was evidence before the tribunal that multiple claims had been made on similar erroneous basis. The tribunal took the opportunity
to issue a general warning to
the profession, emphasising the overriding duty of practitioners to the court (or tribunal as the case may be).

The tribunal stated its view,
in no uncertain terms, that it was improper for any practitioner to advance arguments which are false or known (or ought to have been known) to be inconsistent with their own evidence. The tribunal endorsed and adopted the procedure of the High Court whereby it may, at the time of refusing permission on paper, write to senior partners of firms which have issued meritless applications, requiring them
to explain their conduct and,
if appropriate, appear before
the court to explain their conduct in person.

The tribunal made it clear that it is not improper to advance a weak case on behalf of a client, provided that the case is advanced in a fair, professional and proper manner. Clients with weak cases are, after all, entitled to have their case adjudicated upon as part of the right of access to a court. But the position is different where unarguable cases are advanced
in a professionally improper manner.

Priority risk

When the SRA published its second annual Risk Outlook in July 2014, it included ‘abusive or improper litigation’, as one of its ‘other priority risks’. It is clear that the courts and the SRA regard this as a serious issue.

It is apparent from both
these judgments that there are
a number of things firms can do to mitigate the risk of becoming engaged in improper or abusive litigation. A good start might
be to circulate the comments
in these cases and ensure that fee earners are aware of their obligations to the court. Ensure robust supervision and, if in doubt, seek advice. SJ

Susanna Heley is an associate at RadcliffesLeBrasseur