Removing the opposition

District Judge Pal Sanghera considers when an objection can be taken to the opposing legal representative continuing to act

In what circumstances can one party object to a particular lawyer acting for his opponent? More importantly, in what circumstances can the court uphold such an objection? The fact that such a power exists cannot seriously be disputed.

It has been frequently used by the courts.

Let us not forget that solicitors and counsel have a duty to the court which overrides their duty to the client (Rondel v Worsley [1969] 1 AC 191).

They are thus subject to the court's control.

This control must, logically, include the power to say, 'That lawyer can't act'.

How does this fit with the fact that every person is entitled to the legal representation of his choice? That is an important part of the professional conduct rules for both branches of the legal profession.

While a solicitor can refuse to accept instructions, barristers are bound by what is commonly called the 'cab rank rule'.

The code of conduct of the bar in fact prohibits counsel from withholding services except in certain specified situations such as where the barrister has some connection with the client, the court or some member of it or there is a risk that confidential information in the barrister's possession may be used against a former client.

Put simply, a person's choice of lawyer should always be respected.

Confidential information

It has always been clear that where a legal representative (or indeed any other professional) is in possession of confidential information about a client, he cannot act against that client unless there are adequate guarantees that there is no risk of the information being disclosed or misused.

The courts have granted injunctions where necessary.

The leading authority on this is Rakusen v Ellis, Munday and Clarke [1912] 1 Ch 831.

The point was more recently considered by the House of Lords in Bolkiah v KPMG [1999] 1 All ER 517.

In that case, the court accepted that the basis of the court's jurisdiction to intervene arose only when two conditions were satisfied: '(i) that the solicitor was in possession of information which was confidential to the former client and, (ii) that such information was or might be relevant to the matter on which he was instructed by the second client.'

But Bolkiah was specifically concerned with the protection of a client's confidential information.

It did not address wider issues and cannot be taken to define fully the extent to which the court can exercise a discretion to say to an advocate at the behest of the opposing side that he cannot act.

The court can uphold wider objections, and has done so, although rarely.

Wider objections

The court's power to grant an injunction comes not simply from the lawyer's duty to his client - former or existing.

It arises more particularly from the lawyer's duty to the court and the court's duty to ensure a fair hearing.

Article 6 of the European Convention on Human Rights expressly imposes such a duty.

Although the individual's right to the counsel of his choice should be respected, the European Court of Human Rights has held that, in the interests of fair trial, reasonable restrictions can be placed on the right of choice of counsel (Croissant v Germany (1992) 16 EHRR 135).

Because of this need for a fair trial, which the English courts recognised before the implementation of the Human Rights Act, an objection has been approved in both a criminal case (R v Bhatt [1996] Crim LR 910) and a child care case (Re L [2001] 1 WLR 100) where advocates on opposing sides were cohabiting.

The basis for any intervention by the court has recently been more helpfully defined in Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567, where counsel for the defendant had met Ms Skjevesland at a social gathering and the other party sought to prevent him acting in the case.

It was contended that he may have gained certain information and that this gave rise to a perception of unfairness.

The particular counsel had never acted for Ms Skjevesland and owed her no professional duty.

The principle which should guide the exercise of the court's discretion is set out in one sentence in the judgment of Lady Justice Arden: 'Although not so expressed, the principle is now firmly one of ensuring to both parties a fair trial.

The fairness or otherwise of the trial is judged from the standpoint of the uninvolved lay observer at the back of the court.'

This is a power that needs to be exercised with care after careful consideration of all of the circumstances.

Cases other than those involving the need to protect confidential information are likely to be rare.

The judge, in Skjevesland, expressly said that: '...

A judge should not too readily accede to an application by a party to remove the advocate for the other party.

It is obvious that such an objection can be used for purely tactical reasons and will inevitably cause inconvenience and delay in the proceedings.'

Practicalities

So, how do you ascertain whether the circumstances are such as to give rise to an objection? How do you assess the risk of the order being set aside on appeal? Before saying he cannot act or deciding that you can, ask yourself these questions.

What information is (or might reasonably be thought to be) in the advocate's possession? How will that affect the conduct of the hearing? Would this make the trial unfair and thus affect the final outcome? Would you reasonably expect that outcome to be set aside on any subsequent appeal?

Your answers to these questions (and, of course, any other pertinent points) will inform your decision.

Definitive answers are not required.

It is the process through which you assess whether the advocate's position is reasonably open to objection.

In any case of doubt, disclosure at an early stage must be the best policy.

Any court applications that are then indicated should be made at the earliest stage so that any delay is avoided.

The start of the final hearing is not the right time.

District Judge Pal Sanghera sits at Coventry and Nuneaton County Courts