Unmeritorious court applications

On 25 November 2019, the Solicitors Regulation Authority (SRA) introduced a specific requirement of conduct on solicitors not to waste court’s time.

This is standard 2.6 of the SRA Code of Conduct for Individual Solicitors, registered European lawyers (RELs) and registered foreign lawyers (RFLs).

The reason behind the introduction of this requirement was the longstanding concern about unmeritorious applications in immigration cases.

This had led to the development of the so-called Hamid procedure in which the immigration courts (initially the administrative court and later the first-tier tribunal) could require a claimant solicitor to appear before a divisional court to explain their conduct in issuing unmeritorious claims.

Although the procedure was first formalised in the case of R (Hamid) v Secretary of State for the Home De-partment [2012] EWHC 3070 (Admin), it was held to be part of the high court’s inherent jurisdiction to control the conduct of its officers.

Subsequent cases have confirmed that the procedure is applicable in immigration tribunals (see R (Shrestha) v SSHD (Hamid jurisdiction: nature and purposes) [2018] UKUT 242 (IAC) and in respect of representatives other than solicitors (R (Hoxha & Ors) v SSHD [2019] UKUT 124 (IAC)).

The administrative court has indicated that as a matter of policy, the procedure is applicable in respect of proceedings other than immigration.

On occasion, the court has accepted the explanations and or apologies of the solicitors called before it.

More frequently, it has either taken steps to require action on the part of the firm, and or referred the matter and or the firm to the SRA for investigation.

Before November 2019, prosecutions had to be on grounds such as principle 6 (now principle 2) – failure to uphold public trust in the profession; or principle 2 (now principle 5) – lack of integrity.

Depending on the facts of the case, allegations of misleading the court, failing to comply with court orders, acting in contempt of court and failing to comply with your obligations to the court could be pleaded.

However, there was no express requirement not to waste court time; and the obligation not to pursue issues which you did not consider reasonably arguable was an indicative behaviour rather than an ‘outcome’.

In a code of conduct shorn of a vast amount of detail compared to its predecessor, it’s interesting that only pursuing matters you consider reasonably arguable received an upgrade from guidance to rule; and that separately, one of the few new entries into the code was not to waste the court’s time.

Considering the number of times the Hamid jurisdiction has been utilised, and the number of references made to the SRA as a result, it is easy to see how the SRA came to adopt a belt and braces approach to the question of unmeritorious applications.

However, the idea that it can be professional misconduct to waste the court’s time is inherently uncomfortable, when considered as something distinct from pursuing issues which you do not consider reasonably arguable.

If one starts from the proposition that a compliant solicitor will not pursue a case which they don’t believe to be reasonably arguable, wasting the court’s time must involve something other than the pursuit of unmeritorious cases.

Sadly, there has been no guidance as to what that might be.

Against this background solicitors and, particularly, compliance officers for legal practice (COLPS) may wish to take on board the commentary of HHJ Wildblood QC in the recent case of Re B (a child) (Unnecessary Private Law Applications) [2020] EWFC B44.

This judgment was issued on 25 September 2020 in a family case and specifically directed at unnecessary applications where, in the view of the courts, “common sense” should have prevailed.

The particular issue before the court related to disclosure and was in fact an appeal from a decision of a legal adviser which the court accepted was erroneous.

The whole point of HHJ Wildblood’s short judgment is to decry the rise in requests for the court to microman-age high conflict issues and to deliver this message: “Do not bring your private law litigation to the family court here unless it is genuinely necessary for you to do so.

"You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.

"There are many other ways to settle disagreements, such as mediation.”

This judgment is a particular example of a court region frustrated with minor issues taking up court time which should properly be devoted to more serious matters.

Nevertheless, it is a pretty stark statement which may well be interpreted to suggest that solicitors who are unwilling or unable to persuade their clients to compromise may have to justify their position to the court and, po-tentially, face having to provide an explanation to their regulator.

HHJ Wildblood listed specific examples of requests for micromanagement that have come before him in the last month: “i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction? iii) How should contact be arranged to take place on a Sunday afternoon?”

In fairness to solicitors, these are issues which they have no direct interest in.

If clients are unwilling or unable to reach a workable agreement, solicitors really have no option but to recommend third party intervention to reach a conclusion.

If the conflicts in that case are that extreme, mediation may simply be an added expense which doesn’t break the deadlock.

If the matter is already before a court, an application may be far more cost effective than attempting to broker a negotiated agreement.

The question as to how far a solicitor ought to rein in the client’s desire to have a particular issue determined by the court must inevitably add to the tensions between a solicitor’s duties to the court and to the client.

It will be interesting to see whether solicitors are ultimately sanctioned for asking the courts to micromanage disputes in the way exeplified in this judgment.

It may be that these issues are more common in family proceedings than in commercial claims, but the issue in this particular instance arose over a point on disclosure.

Proportionality and ensuring that parties do not overshoot a fair allocation of court resources is applicable in every case, courtesy of the overriding objective.

It’s a fair assumption that a perceived failure on the part of representatives to work cooperatively on procedural and or trivial matters may be met with similar censure in any court.
Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com