CD1 - You must observe your DUTY TO THE COURT in the administration of justice Flashcards
The extent of the duty to the Court
Duty: rC3 & rC3.1
rC3 - You owe a duty to the COURT to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law).
rC3.1 - It includes the following specific obligations:
You must NOT, either knowingly or recklessly, MISLEAD the COURT
What would misleading the court include?
(1) Making any SUBMISSIONS, representation or any other statement which you know or are instructed is UNTRUE or MISLEADING; (rC6.1 a)
(2) Asking QUESTIONS which suggests FACTS to a witness which you know or are instructed are UNTRUE or MISLEADING; (rC6.1b)
(3) Calling WITNESSES to give evidence or putting witness statements or affidavits before the court, which you know or are instructed are UNTRUE or MISLEADING, unless you make the true position clear to the court. (rC6.2)
(4) (See0. below for an example of the application of this rule)
(ii) Knowingly misleading the court includes BEING COMPLICIT in another person misleading the court; (gC4.1)
(iii) Knowingly misleading the court also includes INADVERTENTLY misleading the court, if you later realise that you have misled the court and you fail to correct the position; (gC4.2)
(iv) The duty CONTINUES to apply for the DURATION of the case. (gC4.4)
rC3
You owe a duty to the COURT to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law).
rC3.1
It includes the following specific obligations:
You must NOT, either knowingly or recklessly, MISLEAD THE COURT;
Submissions and misleading the court rule
rC6.1.a
You must NOT make any submission, representation or any other statement which you know or are instructed is UNTRUE or MISLEADING;
Questions to witnesses and misleading the court rule
rC6.1b
You must not ask questions which suggests facts to a witness which you know or are instructed are UNTRUE or MISLEADING;
Calling witnesses and CD 1 rule
rC6.2
You cannot:
- call witnesses to give evidence or
- putting witness statements or
- affidavits before the court
… which you know or are instructed are UNTRUE or MISLEADING, unless you make the true position clear to the court.
Can you be complicit in another misleading the court?
gC4.1
Yes. Knowingly misleading the court includes BEING COMPLICIT in another person misleading the court;
Can you inadvertently mislead the court?
Yes - Knowingly misleading the court also includes INADVERTENTLY misleading the court, if you later realise that you have misled the court and you fail to correct the position.
gC4.4
CD1 - duty CONTINUES to apply for the DURATION of the case.
How does CD 1 relate to other Core Duties?
rC4 - Your duty to the court OVERRIDES your duty to act in the best interests of your client (CD2).
rC5 - Your duty to the court does NOT require you to act in breach of your duty to keep the affairs of each client confidential (CD6).
Court or Client?
rC4
Your duty to the court OVERRIDES your duty to act in the best interests of your client (CD2).
CD1 and CD 6
rC5 - Your duty to the court does NOT require you to act in breach of your duty to keep the affairs of each client confidential (CD6).
What do you do if there is a risk that the court will be misled because of confidential information which you have learned in the course of your instructions?
(i) If there is a risk that the court will be misled unless you disclose CONFIDENTIAL INFORMATION that you have learned in the course of your instructions you should seek the CLIENT’S PERMISSION TO DISCLOSE the information to the court.
(1) If the client REFUSES to allow you to make the disclosure then you must CEASE TO ACT and RETURN YOUR INSTRUCTIONS. In these circumstances you must NOT REVEAL the information to the court. rC3 rC3.1 rC6.1.a rC6.1.b rC6.2 gC4.1 gC4.2 gC4.4 rC4 rC5 gC11
10
(2) Similarly, you CANNOT continue to act if you become aware that the client (or your professional client) POSSESSES A DOCUMENT which should have been but HAS NOT BEEN DISCLOSED, UNLESS your client agrees to the disclosure of the document. Again, if you withdraw, you must NOT REVEAL the existence of the document to the court or your opponent.
What do you do if there is a risk that the court will be misled unless you disclose CONFIDENTIAL INFORMATION that you have learned in the course of your instructions?
You should seek the CLIENT’S PERMISSION TO DISCLOSE the information to the court.
What if the client REFUSES to allow you to make the disclosure?
then you must CEASE TO ACT and RETURN YOUR INSTRUCTIONS. In these circumstances you must NOT REVEAL the information to the court. rC3 rC3.1 rC6.1.a rC6.1.b rC6.2 gC4.1 gC4.2 gC4.4 rC4 rC5 gC11 10
What do you do if you become aware that the client (or your professional client) POSSESSES A DOCUMENT which should have been but HAS NOT BEEN DISCLOSED?,
you CANNOT continue to act if you become aware that the client (or your professional client) POSSESSES A DOCUMENT which should have been but HAS NOT BEEN DISCLOSED, UNLESS your client agrees to the disclosure of the document. Again, if you withdraw, you must NOT REVEAL the existence of the document to the court or your opponent.
rC3.2
You MUST NOT ABUSE your role as an advocate.
What are examples of abusing your role as an advocate?
rC7.1 - Making statements or asking questions merely to INSULT, HUMILIATE, or ANNOY a witness or any other person.
rC7.2 - Making SERIOUS ALLEGATIONS against A WITNESS whom you have had the opportunity to cross-examine, UNLESS you have put the allegation to the witness in cross-examination.
rC7.3 - Making a SERIOUS ALLEGATION against ANY PERSON, or suggesting that a person is guilty of an offence with which your client is charged unless:
(1) You have REASONABLE GROUNDS for making the allegation;
(2) The allegation is RELEVANT to your client’s case or the credibility of the witness; and
(3) Where the allegation relates to a 3rd party, you avoid naming them in open court unless this is reasonably necessary.
rC7.4 - Putting forward to the court a PERSONAL OPINION of the facts or the law UNLESS you are invited or required to by the court (or by law).
What sort of statement/question = abusing role as an advocate? (Behaviour)
rC7.1
Making statements or asking questions merely to INSULT, HUMILIATE, or ANNOY a witness or any other person.
What sort of allegation against a witness could constitute and abuse? To whom?
rC7.2 -
Making SERIOUS ALLEGATIONS against A WITNESS whom you have had the opportunity to cross-examine, UNLESS you have put the allegation to the witness in cross-examination.
What sort of allegation against any person could constitute an abuse of your role as an advocate?
rC7.3 -
Making a SERIOUS ALLEGATION against ANY PERSON, or suggesting that a person is guilty of an offence with which your client is charged unless:
(1) You have REASONABLE GROUNDS for making the allegation;
(2) The allegation is RELEVANT to your client’s case or the credibility of the witness; and
(3) Where the allegation relates to a 3rd party, you avoid naming them in open court unless this is reasonably necessary.
Can you put your personal opinion forward?
No, no no…. rC7.4 - abuse of role of an advocate: Putting forward to the court a PERSONAL OPINION of the facts or the law UNLESS you are invited or required to by the court (or by law).
How does CD 1 relate to undertakings?
You must comply with any UNDERTAKING you give to the court in the course of conducting litigation within any agreed timescale or within a reasonable period of time.
