The court is king

The recent news about Peter Gray, the Dubai-based partner of Gibson Dunn and Crutcher, serves as a clear reminder of when our duties to the court outweigh our duties to our clients and why the duty must be strictly adhered to. These are duties which apply as much to junior litigators as they do to senior counterparts.

Gray was instructed to obtain a freezing injunction on behalf of his client, the Djibouti government, against Mr Boreh, the opposition leader who had been convicted of a terrorist grenade attack. Evidence presented to the court by Djibouti prosecutors included an incriminating transcript of a telephone call in which Boreh was alleged to have been discussing the aftermath of the grenade attacks.

Associates at Gibson Dunn discovered, in advance of the freezing injunction application, that the date of that transcript was incorrect and it could not have been a discussion about the attack.

The discrepancy, which might have undermined the claimant’s case, was not disclosed to the court. It did not matter that the injunction hearing was inter partes (and the duty of full and frank disclosure did not strictly apply) or that the misconduct (which may have been known by the claimants) was by the solicitor, the freezing order was ultimately set aside due to the misleading evidence.

The case of Shaw and another v Logue [2014] EWHC 5 (Admin), an appeal of an order of the Solicitors Disciplinary Tribunal (SDT) proceedings (which were brought by a private individual against a partner and associate at Stewarts Law who acted for a client in litigation against him), made clear that junior solicitors are not immune.

Associate Craig Turnbull’s evidence suggested that a strategy in relation to omitted details, which might have dispelled an inference that the respondent to a freezing injunction had evaded service in separate proceedings (as evidence of risk of dissipation), was led by the partner.

The High Court dismissed a number of the criticisms but did not uphold Turnbull’s appeal against sanction on the basis of the limited finding of dishonesty against him, which related to his knowledge that a case advanced in an affidavit was false and his failure to speak up. Turnbull has been struck off by the SDT and the case has been remitted to a new tribunal to re-determine the issue of sanction in relation to the findings which were upheld and conduct a re-hearing of other allegations.

Gray has been suspended from Gibson Dunn and the matter has been referred to the Solicitors Regulation Authority. He may face criminal prosecution. Gibson Dunn and their client have been jointly ordered to pay around £880,000 to Boreh.

The risk of injustice in both cases is clear to see and both are essential reading for any litigator. They remind us of the significant weight on our shoulders to ensure justice is done in a system which would break down if courts were routinely misled by omission.

The latter also serves as an object lesson that a practice of deferring to a senior colleague’s judgement is not an approach the courts (or the SDT) will support if a line has been crossed. SJ

Caroline Field is a senior associate specialising in litigation and dispute resolution at Fox and president of the Junior LSLA