Responsible use of court process and privilege Flashcards
When a barrister gives advice to invoke the coercive power of the court (i.e ability to compel a person to give evidence, comply with court orders etc) the barrister must ensure the advice is….
Hint 1 rule four subsections
r 59 (a) reasonably justified by the material;
r 59 (b) appropriate for the robust advancement of the client’s case on its merits;
r 59 (c) is not made to harass or embarrass a person; and
r 59 (d) is not made in order to gain some collateral advantage for the client or barrister out of court.
Question: A client is a party in a Personal Injuries matter and wants you to assert that the opposing counsel
should cease acting because of a conflict of interest.
Your instructing solicitor is aware the main reason that the client wishes the other counsel to have to withdraw is that he is a good friend of the opponent and is apparently charging costs at a reduced rate.
The client wants the opponent to be put to significant expense to create pressure on resolve the matter.
Is it appropriate to assert a conflict to the court?
I would explain to the client that if on material before me it is reasonably justified to raise with the court there is a conflict I would provide advice about that r 59(a), however I would explain I have a duty to not invoke the coercive power of the court to in order for the client to gain some collateral advantage for the client out of court…i.e. make the other side get another barrister who is more expensive…i would explain that whilst I must promote and protect the client’s best interest r 37…I have a paramount duty to the administration of justice r 5 and r 25 to the court to act with independence in the interest of the administration of justice…and to bring an application knowing it has no proper basis would be contrary to administration of justice and an abuse of court (idk)
A barrister must make sure that allegations to witness under privilege are….
hint 1 rule 3 subsections
must make sure allegations made are r 60(a) reasonably justified by the material available….(b) appropriate for the robust advancement of the case and (c) not made in order to harass or embarrasses
There are special rules regard the treatment of sexual assault victims when they are giving evidence ?
hint 2 rules (2 and 2 subsections)
r 61(a) must not ask a question or pursue a line of questioning which is intended to (i) to mislead or confuse a witness (ii) annoying, harassing, offensive etc and
(b) must take into account any particular vulnerability of witness in the manner and tone of questions
r 62 does not breach r 61 (a) a question which challenges truthfulness of the witness or (b) question which requires witness to give distasteful, offensive, private information
A barrister must not allege any matter of fact in….[insert]….unless the barrister believes there are reasonable grounds that the factual material already available provides a proper basis to do do.
What documents
r 63 (a) any court document settled by the barrister
r 63 (b) any submission during a hearing
r 63 (c) the course of an opening address
r 63 (d) the course of a closing address or submission on the evidence
A barrister must not allege any allegation of criminality or misconduct against any person unless….
hint 2 rules (2 and 0 subsections)
r 64 barrister must not make allegations of misconduct etc unless the barrister believes on reasonable ground that there is a proper basis to do so and the client wishes for the allegation to be made after being advised of the seriousness of the allegation and the consequences for the client if the allegation is not made out…
r 65 barrister may have regard to the opinion of the instructing solicitor etc for forming reasonable grounds….
When cross examining a witness regarding their credit a barrister has an ethical duty to not….?
hint one rule
r 66 a barrister during cross examination as to credit must not ask a question unless the barrister believes on reasonable grounds the answer would diminish the credit of the witness (see also s 20 QEA)
Where a barrister is making submissions in mitigation at sentence which involve allegations of misconduct by another person…what must a barrister make sure not to do?
hint 1 rule
r 67 a barrister who is making submissions in mitigation of a clients criminality which involve allegations of misconduct by another person who is not there to answer to that allegation must not disclose the identity of that person either directly or indirectly unless barrister believes on reasonable ground that such disclosure is necessary for proper conduct of the case
What is rule 59? (hint integrity of evidence)
- A barrister must take care to ensure that the barrister’s advice to invoke the coercive
powers of a court:
(a) is reasonably justified by the material then available to the barrister;
(b) is appropriate for the robust advancement of the client’s case on its merits;
(c) is not made principally in order to harass or embarrass a person; and
(d) is not made principally in order to gain some collateral advantage for the client
or the barrister or the instructing solicitor out of court.
What is rule 60? (hint integrity of evidence)
- A barrister must take care to ensure that decisions by the barrister to make allegations
or suggestions under privilege against any person:
(a) are reasonably justified by the material then available to the barrister;
(b) are appropriate for the robust advancement of the client’s case on its merits;
and
(c) are not made principally in order to harass or embarrass a person.
What is rule 61-62? (hint integrity of evidence)
- Without limiting the generality of Rule 60, in proceedings in which an allegation of
sexual assault, indecent assault or the commission of an act of indecency is made and
in which the alleged victim gives evidence:
(a) a barrister must not ask that witness a question or pursue a line of questioning
of that witness which is intended:
(i) to mislead or confuse the witness; or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive,
humiliating or repetitive; and
(b) a barrister must take into account any particular vulnerability of the witness in
the manner and tone of the questions that the barrister asks. - A barrister will not infringe Rule 61 merely because:
(a) the question or questioning challenges the truthfulness of the witness or the
consistency or accuracy of any statements made by the witness, or
(b) the question or questioning requires the witness to give evidence that the
witness could consider to be offensive, distasteful or private.
What is rule 63? (hint integrity of evidence)
- A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already
available provides a proper basis to do so.
What is rule 64-65? (hint integrity of evidence)
- A barrister must not allege any matter of fact amounting to criminality, fraud or other
serious misconduct against any person unless the barrister believes on reasonable
grounds that:
(a) available material by which the allegation could be supported provides a
proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of the
seriousness of the allegation and of the possible consequences for the client
and the case if it is not made out. - A barrister may regard the opinion of the instructing solicitor that material which is
available to the solicitor is credible, being material which appears to the barrister from
its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable
ground for holding the belief required by those Rules (except in the case of a closing
address or submission on the evidence).
What is rule 66? (hint integrity of evidence)
- A barrister must not make a suggestion in cross-examination on credit unless the
barrister believes on reasonable grounds that acceptance of the suggestion would
diminish the credibility of the evidence of the witness.
What is rule 67? (hint integrity of evidence)
- A barrister who has instructions which justify submissions for the client in mitigation
of the client’s criminality which involve allegations of serious misconduct against any
other person not able to answer the allegations in the case must seek to avoid disclosing
the other person’s identity directly or indirectly unless the barrister believes on
reasonable grounds that such disclosure is necessary for the proper conduct of the
client’s case.
What is the rationale for the rules regarding invoking the coercive powers of the court? (r 59)
The rationale for the rule is that to invoke the coercive powers of the court in a way which is not reasonably justified is an abuse of court processes and contrary to the proper administration of justice
What is the rationale for the rules regarding not making ‘baseless’ allegations and/or suggestions to witnesses under privilege? (r 60)
The rationale for the rule is to ensure to a fair trial for the litigants. A party is entitled to have matter heard without the introduction of (1) extraneous matters calculated to infer with the jury (2) maintaining ethical standards and (3) the bounds of permissible advocacy
Failure to observe the rules during trial may result in a mistrial because of the prejudicial effect of counsel conduct on the jury (Lees)
Question:
You are settling a statement of claim and claim for workplace bullying claim. The client has made allegations that the defendant verbally abused him during a series of emails.
The client wishes for you to alleged that the defendant not only verbally abused him by threatened him with physical abuse one day after work. You question the client about this, and he is unable to provide any detail about the nature of the threat or even when or where it occurred… “…he is a bad bloke so I know he would have…I just cant remember”.
Rule: r 63 a barrister must not allege any matter of fat in (a) any court document settled by the barrister unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis for doing so.
Active role: I would explain to the client that counsel has a duty for the responsible use of court processes consistent with duty to the administration of justice, and to ensure fairness to the opponent. At this stage, there is no proper basis to make the allegation, however, can revisit should further supporting evidence be obtained and potentially amend pleadings. The consequences of making an unfounded allegation will distract the court from main arguments, could result in striking out of that allegation, costs implications, and professional misconduct for counsel.
What is the rationale of the rule regarding not alleging any matter of fact which amounts to criminal conduct, fraud, or other misconduct unless there are reasonable grounds? (r 64)
The rationale for the rule is that such allegations can lead to serious reputational damage which therefore requires counsel to ensure there is a proper basis for alleging such conduct.
Counsel remains under an obligation to investigate and ensure such allegations are supported by a proper basis before making the allegation and must advise the client of the consequences of an allegation if it is not made out. Counsel should refuse instructions or return brief if client wishes to persist with baseless allegations. Such allegations also have the potential to undermine public confidence in the profession and the justice system.
It can also result in a re-trial as such baseless allegations unfairly affected the juries mind can ,result in costs being award, and a referral to LSC.
Does the court have the power to restrain or disqualify a party’s legal representative?
Discuss
The court has the jurisdiction to retain or disqualify a lawyer, as an officer of the court, from representing a party in litigation.
The test to be applied is whether a fair-minded reasonably informed person would find it subversive to the administration of justice to allow the representation to continue, however this must be exercised in exceptional and clear cases (i.e. court doubts lawyers capacity to exercise independence, perception of breach of confidentiality, lawyer could be a witness, lawyer conduct in question, direction person interest beyond fee; things listed in r 95-99).
This is because disqualification inters with a clients choice of legal representation and opens the door to applications used for purely tactical reasons which causes detail and inconvenience.
Where a lawyer commits an abuse of process can the lawyer be ordered to pay the costs of the proceeding or step of the proceeding?
Yes
Where a lawyer makes unsubstantiated serious allegations during a trial what is the potential consequences of that occurring?
It may be result in a miscarriage of justice because of an abuse of process committed by the lawyer…here making such allegations would have a prejudicial effect on the jury and like cause a miscarriage of justice.
When will a lawyers conduct amount to contempt? and what is the purpose of the contempt power?
A lawyer’s words or actions that interfere with the administration of justice or otherwise disregard the court’s authority can sound
in punishment for contempt.
The contempt power is exercised to vindicate the integrity of the court and its proceedings.
Provide four examples which may justify bringing an application for the disqualification of a legal representative…and what is the test?
The lawyer’s disqualification may be justified where a fair-minded reasonably informed observer would:-
(1) Perceived potential for misuse of confidential information;
(2) a prospect that the lawyer is seen as having a personal interest in the outcome of the case,
(2) the lawyer’s independence and objectivity being otherwise compromised, (i.e. acting for family member, friend etc)
(3) or for another reason that the administration of justice would be imperil.
