CD1 - You must observe your DUTY TO THE COURT in the administration of justice

Question 1

The extent of the duty to the Court

Answer 1

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

Question 2

What would misleading the court include?

Answer 2

(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)

Question 3

rC3

Answer 3

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).

Question 4

rC3.1

Answer 4

It includes the following specific obligations:

You must NOT, either knowingly or recklessly, MISLEAD THE COURT;

Question 5

Submissions and misleading the court rule

Answer 5

rC6.1.a

You must NOT make any submission, representation or any other statement which you know or are instructed is UNTRUE or MISLEADING;

Question 6

Questions to witnesses and misleading the court rule

Answer 6

rC6.1b

You must not ask questions which suggests facts to a witness which you know or are instructed are UNTRUE or MISLEADING;

Question 7

Calling witnesses and CD 1 rule

Answer 7

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.

Question 8

Can you be complicit in another misleading the court?

Answer 8

gC4.1

Yes. Knowingly misleading the court includes BEING COMPLICIT in another person misleading the court;

Question 9

Can you inadvertently mislead the court?

Answer 9

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.

Question 10

gC4.4

Answer 10

CD1 - duty CONTINUES to apply for the DURATION of the case.

Question 11

How does CD 1 relate to other Core Duties?

Answer 11

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).

Question 12

Court or Client?

Answer 12

rC4

Your duty to the court OVERRIDES your duty to act in the best interests of your client (CD2).

Question 13

CD1 and CD 6

Answer 13

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).

Question 14

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?

Answer 14

(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.

Question 15

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?

Answer 15

You should seek the CLIENT’S PERMISSION TO DISCLOSE the information to the court.

Question 16

What if the client REFUSES to allow you to make the disclosure?

Answer 16

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

Question 17

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?,

Answer 17

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.

Question 18

rC3.2

Answer 18

You MUST NOT ABUSE your role as an advocate.

Question 19

What are examples of abusing your role as an advocate?

Answer 19

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).

Question 20

What sort of statement/question = abusing role as an advocate? (Behaviour)

Answer 20

rC7.1

Making statements or asking questions merely to INSULT, HUMILIATE, or ANNOY a witness or any other person.

Question 21

What sort of allegation against a witness could constitute and abuse? To whom?

Answer 21

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.

Question 22

What sort of allegation against any person could constitute an abuse of your role as an advocate?

Answer 22

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.

Question 23

Can you put your personal opinion forward?

Answer 23

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).

Question 24

How does CD 1 relate to undertakings?

Answer 24

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.