LSLA RESPONSE REGARDING
RULE 11.01(2) (b) OF THE SOLICITORS' CODE OF CONDUCT
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.
2.1 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:
a. Relevant cases and statutory provisions;
b. The contents of any document [emphasis added]that has been filed in the proceedings where failure to draw it to the Court's attention might result in the Court being misled; and
c. Any procedural irregularity.
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.
7.1 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.
8.1 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.
9.1 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:
(i) Amend the rule by substituting the words "affidavit or statement" for the word "document"
Comment: The LSLA considers that this would not be appropriate for the following reasons:
The inconsistency between a solicitor's obligation and a barrister's obligation would be perpetuated. There has been a general trend of convergence of solicitors' advocacy rights and responsibilities and those of barristers and this would run counter to that trend.
The lack of clarity referred to above would continue (e.g. as to what is filed).
(ii) Add a definition of what is meant by the word "filed"
Comment: The LSLA is not in favour of this suggestion as it again perpetuates the inconsistency between a solicitor's obligation and a barrister's obligation.
If the Rule remains, however, then given the multiple references to trial bundles being filed in the CPR it is important for there to be a definition or explanation of what "filed" means in this context.
We would suggest that the duty should only apply in relation to witness statements/affidavits which have been filed pursuant to the Court's direction under CPR 32.4(3)(b) or pursuant to CPR 23.7(2) (witness statements supporting applications). However, this may still lead to onerous obligations should a Judge order that witness statements be filed in a complex factual case. Also, without further clarification, it may allow an interpretation that would catch witness statements which are filed in this way as a result of the trial bundle being filed. Again, it should be made clear that the Rule does not apply to exhibits to statements.
Should the SRA be minded to retain the obligation in relation to "affidavits or statements" we would endorse the following wording which we understand one of the firms has put forward for consideration:
"This rule applies to witness statements and affidavits which have been filed pursuant to the Court's direction under CPR 32.4(3) (b) and/or pursuant to CPR 23.7(2) (witness evidence to be filed in support of application notices). This rule does not apply to witness statements and/or affidavits filed as a result of their inclusion in bundles filed for hearings or trials. Nor does the rule extend to exhibits to witness statements and/affidavits."
If this approach were adopted we would suggest in addition that the word 'would' be substituted for 'might' in 11.01(b).
(iii) Abolish 11.01(ii) (b) in its entirety (and make corresponding amendments to guidance paragraph 17)
Comment: In light of the issues highlighted in this note, the LSLA supports the suggestion of the Rules and Ethics Committee that Rule 11.01(2) (b) should be removed in its entirety.
The LSLA considers that the general duty not to mislead the court is sufficient and coincides with the duty on barristers.
There are otherwise a number of interpretation issues raised by merely inserting the words "affidavit or statement" which would require further explanation and guidance.
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 …
(c) must ensure that the court is informed of all relevant decisions and legislative provisions of which they are aware whether the effect is favourable or unfavourable towards the contention for which they argue and must bring any procedural irregularity to the attention of the court during the hearing and not reserve such matter to be raised on appeal".
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.
5th October 2007