1. THE lsla

The LSLA was formed in 1952 and represents the interests of a wide range of civil litigators in London. It has some 1,000 members throughout London among all the major litigation practices, ranging from sole practitioners to major international firms.

Members of the LSLA Committee sit on the Civil Justice Council, the Civil Procedure Rules Committee, the Law Society Civil Litigation Committee, the Commercial Court Users Committee and the Supreme Court Costs Group, to name but a few. As a consequence, the LSLA has become the first port of call for consultation on issues affecting civil and commercial litigation in London and it has, on many occasions, been at the forefront of the process of change.

2. Introduction

2.1 On 1 July 2007, The Guide to Professional Conduct ("the Guide") was replaced by the Solicitors' Code of Conduct ("the Code").

2.2 The LSLA's comments are sought in relation to the obligation in Rule 11.01(2)(b) of the Code, which has generated debate between certain City firms and the SRA.

2.3 The LSLA considers the problems posed by Rule 11.01(2) (b) and gives its views on the possible solutions below.

3. Rule 11.01 – Deceiving or Misleading the Court

3.1 Rule 11.01 reads as follows:

You must never deceive or knowingly or recklessly mislead the Court.

You must draw to the Court's attention:

Concern has been raised that the use of the word "document" in 11.01(2) (b) unjustifiably extends the previous obligation owed by solicitors under the Guide.

4. Obligation under the Guide

4.1 The Guide (Rule 21.01(4)) provided that where a "solicitor knows that a relevant affidavit or statement has been filed in the proceedings and is therefore notionally within the knowledge of the Court, then there is a duty to inform the Judge of its existence". This obligation was said not to require a solicitor to inform his adversary or the Court of facts which, or a witness who, would assist the adversary to the prejudice of his own client except where the solicitor was acting or appearing for the prosecution.

4.2 It is understood that Rule 21.01(4) did not generate any case law.

5. Background to Rule 11.01(2) (b)

5.1 As we understand it, there was initially no similar provision to Rule 21.01(4) in Rule 11 of the Code but during the approval process by the Legal Services Consultative Panel ("LSCP") its absence was noted and Rule 11.01(2)(b) and guidance paragraph 17 were added. During consultation it is understood that the words "affidavit or statement" were changed to "document", but it is unclear why. However, this wording was agreed by the Chair of the Panel, the SRA Board and the Law Society's Council.

6. Basis for rule 11.01(2) (b)

6.1 The basic premise is understood to be that in respect of documents which have been filed with the Court, advocates have a duty to ensure that anything in them is properly taken into account by the Judge insofar as it is necessary for him/her to do so. As such, this could be taken as part of the core duty of advocates and litigators to assist in the administration of justice and do their best to ensure that the Judge does not come to the wrong result by failing to have regard to something that he clearly should have read and taken into account.

7. Issues

7.1 The drafting of the Code is problematic for several reasons. First, the term "document" is very wide indeed. Second, the term "filed" is ambiguous and potentially very wide. Third, there is no similar provision imposed on barristers by virtue of the Bar Standard's Board Code of Conduct.

8. "Document"

8.1 The current wording represents a significant extension to the Guide. "Document" could encompass any document provided it has been filed with the Court (see further below). As such, this significantly extends the obligation on solicitors to be aware of the contents of statements and affidavits (broadly statements of case, witness statements and affidavits), to encompass their exhibits, correspondence, expert reports, and potentially entire trial bundles.

9. "Filed"

9.1 Documents which are filed include statements of case; various Court forms such as application notices and questionnaires and their supporting evidence; and in some instances witness statements (see CPR 32.4(3) (b)). It has been suggested that bundles are not filed. However, due to inconsistent terminology in the CPR and the various Court guides, trial bundles (which encompass statements of case, witness statements and exhibits, expert reports, relevant correspondence and other documents) can be filed. By way of example, CPR 39.5(1) and (2) and PD39 (para. 3) all state that "the claimant must file the trial bundle…"; the commentary to CPR 39.5 includes a cross reference to the definition of "filed" in CPR 2.3; and CPR 52 contains references to the filing of the core appeal bundles (e.g. PD52, paras. 15.1, 15.2). In large cases trial bundles can run to hundreds of lever arch files. Therefore, the scope of "filed documents" is potentially very large.

10. CONTRAsT WITH The BAr

10.1 Like solicitors, practising barristers are under an overriding duty to the Court to act with independence in the interests of justice, and to assist the Court in the administration of justice and not knowingly or recklessly mislead it (paragraph 302). However, in discharging this duty barristers are under no specific obligation to draw documents to the attention of the Court.

11. The way forward

11.1 The SRA have sought comments on three possible solutions:

12. Procedural irregularities

12.1 Whilst commenting on Rule 11.01 we would also query whether paragraph 11.01(2)(c) should be clarified.

12.2 Rule 11.01(2)(c) provides that a solicitor must draw to the court's attention "any procedural irregularity". No guidance is given on what amounts to a "procedural irregularity".

12.3 The Guide (paragraph 7.1(c) of Annex 21A) provided as follows:

"Advocates when conducting proceedings at court …

12.4 The context in which procedural irregularity was referred to in the Guide suggested that the rule was aimed at serious or material irregularities which could affect the outcome of the proceedings. The LSLA's concern is that the new rule, without this context, could be given a much wider interpretation.

12.5 We anticipate that the SRA did not intend to increase the ambit of the procedural irregularities which should be drawn to the Court's attention and, if this is the case, would welcome clarification in the rule or guidance.