Ethics Hub
Ethical duties when presenting information to, and interacting with, the court
Introduction
Recent high profile cases, such as the Post Office Horizon litigation, have drawn attention to professional ethical conduct in court. The Legal Services Board has highlighted the misuse of non-disclosure agreements and Strategic Lawsuits Against Public Participation (SLAPPs) as areas of concern, while the Solicitors Regulation Authority’s 2018 report, Balancing Duties in Litigation, identified several types of improper or abusive litigation, including predatory litigation against third parties, excessive or aggressive litigation, and knowingly conducting unwinnable cases.
These issues are relevant to two of the three reserved legal activities that regulated Costs Lawyers may carry out, namely the right to conduct litigation and the right of audience.
As a Costs Lawyer, you have duties and obligations in relation to your dealings with the court and how you conduct litigation, which are reflected in the Costs Lawyer Code of Conduct. You also have duties to your client and third parties, as well as a duty to promote the proper administration of justice and the wider public interest.
Because of your dual duties to the court and your client, you may find yourself in a situation where your duty to your client appears to conflict with your duty to the court, or vice versa. In these situations, you will need to consider how to balance these duties.
The information on this webpage sets out your obligations in relation to presenting information to, or otherwise interacting with, the court. It also highlights the factors you will need to consider in a situation where your duty to the court appears to conflict with your duty to act in the best interests of your client, or with another of your professional obligations.
Why is this important?
Costs Lawyers help to uphold the rule of law and promote the proper administration of justice through their advocacy and litigation work. By consistently upholding high standards of ethics and professionalism in court, Costs Lawyers earn the trust and confidence of the court itself, their clients, the wider public, and other branches of the legal profession.
Costs Lawyers whose conduct falls below the expected standard may find themselves subject to a complaint or disciplinary sanctions by the CLSB. As set out in our policy statement on enforcement and sanctions, the CLSB is primarily concerned with taking enforcement action against serious breaches, not those which are merely trivial. Behaviour involving dishonesty, lack of integrity or significant harm to consumers, or posing a high risk to the public interest, the reputation of the profession or the administration of justice, will always be serious. Misleading the court – particularly where this is done deliberately or recklessly – is likely to fall into one or more of these categories of behaviour.
In the most serious cases, Costs Lawyers may find themselves facing charges such as contempt of court or perjury if they breach their duties to the court.
Duties to the court
As a Costs Lawyer, you are an officer of the court. This means you have duties in relation to the court itself, your dealings with the court, and your behaviour during the conduct of litigation and disputes. These duties are set out in Principle 2 of the Code of Conduct.
Your duties include ensuring that you act within the law at all times, ensuring that you do not mislead the court, and ensuring that you comply with court orders. More information about each of these duties and how to meet them is set out below.
You should ensure that you act within the law at all times. This is a key component of acting with integrity, and fundamental to the proper administration of justice.
In the context of your dealings with the court, this means that you should not make submissions that you know are contrary to legislation or court orders. You should also make the court aware of relevant cases, legislation and authorities that are likely to have a material impact on the outcome of the proceedings, as well as any procedural irregularities of which you become aware. You should also ensure that you act in accordance with your legal and regulatory obligations at all times.
It is vital that information provided to the court is accurate and reliable. This is crucial to the smooth conduct of proceedings, efficient allocation of public resources, and the proper administration of justice. Your duties to the court in this regard include:
- not knowingly or recklessly misleading the court;
- not attempting to mislead the court; and
- not allowing the court to be misled by another (which includes not being complicit in your client or anyone else misleading the court).
The court could be misled through information you provide, for example if you provide information that is inaccurate, unverified or falsified.
The court could also be misled by your failure to provide relevant information. This is often referred to as misleading the court by omission. Examples of misleading the court by omission include providing information that is incomplete or unduly vague, or failing to provide information within your possession that is pertinent to the case.
If you become aware that you have inadvertently misled the court yourself, you should inform the court immediately and take steps to rectify the error. You should also consider whether the breach, once remedied, is sufficiently serious to warrant reporting to the CLSB. For more details, see our resources on reporting ethical issues.
If you become aware that your client is misleading – or intends to mislead – the court, you should advise them to cease doing so. If your client continues to mislead the court, for example when giving witness evidence, you should remind your client of your duties to the court and the proper administration of justice. You should also consider whether you are able to continue acting for your client without breaching your professional obligations.
If you discover that your client has misled the court during the course of litigation, you should make the court aware of this and take steps to rectify the error immediately. Whilst this course of action could have difficult consequences for your client, the alternative is for you to breach your professional obligations and risk facing sanctions yourself. Deliberately concealing such information would be treated particularly seriously by the CLSB.
You might need to consider whether your client’s information is confidential, privileged or otherwise sensitive in this context (see further below).
If you become aware that another legal professional or a third party is misleading the court, you should raise this with them directly and advise them to correct this situation. If they do not do so themselves, you should make the court aware of the situation.
You should also consider whether you need to make a report to the relevant approved regulator if you become aware that another legal professional has misled the court. Whilst notifying a regulator of your concerns may feel daunting, it is important to remember that not raising concerns with the relevant body at an early stage risks further harm being caused, and potentially breaches your own professional and ethical obligations. For more information, see our resources on reporting ethical issues.
If you do not actually know, but have a suspicion, that your client, another legal professional or a third party is misleading the court, you should take steps to verify the information provided where appropriate, or otherwise act to allay your suspicions. You should not simply do nothing. Turning a blind eye to a suspicion that information is incorrect or misleading, which later turns out to be the case, is likely to be treated in a similar way to knowingly misleading the court.
You should bear in mind that misleading information may be covered by legal professional privilege (either legal advice privilege or litigation privilege). Legal professional privilege protects communications from disclosure, even in court.
Therefore:
- if your client has provided misleading information to the court; and
- if your client does not rectify this or agree to you rectifying this; and
- if by informing the court about the misleading information, you would disclose a privileged communication without your client’s permission,
then it is likely that you will not be able to continue acting for the client without being in breach of your professional duties.
There may also be situations in which the misleading information is not protected by privilege, but is confidential, commercially sensitive or otherwise sensitive. Principle 7 of the Code of Conduct requires you to keep the affairs of your client confidential. There are also obligations of confidence arising in general law and under court orders in certain types of cases.
If you can make the court aware of the misleading information in a way that protects confidentiality, you should do so. However, the fact that information is confidential should not deter you entirely from acting when it is appropriate to do so. Whilst a balancing exercise is required to consider where the public interest lies, and in balancing your own professional and ethical duties, there is a clear public interest in ensuring the proper administration of justice.
You also have duties to:
- comply with any court orders that place an obligation on you;
- not be in contempt of court; and
- support the proper administration of justice by promoting the appropriate and cost-effective use of the resources of the court and the parties.
You should also ensure that you do not act in situations where you have a conflict of interest that cannot be resolved.
Duties to your client
As well as duties to the court, you also have duties to your clients.
Principle 3 of the Code of Conduct states that you must act in the best interests of your client at all times, except where this conflicts with your duty to act independently in the interests of the proper administration of justice or where otherwise permitted by law.
However, acting in the best interests of your client does not mean that it is your role merely to carry out your client’s instructions without question. It is important to remember that Principle 1 of the Code of Conduct states that you must act independently in the interests of the proper administration of justice. This duty overrides your duties to your client and applies both to your work before the court, in advising clients, and in conducting litigation.
You must ensure that clients understand when your duties to the court will override duties owed to them, and you must advise clients to comply with court orders made against them (Principle 2 of the Code of Conduct).
If your client instructs you to do something that would frustrate the proper administration of justice – for example, presenting misleading or inaccurate information – you should inform your client of your duties to the court and the wider public interest, as well as your general duty to act ethically. If your client insists on instructing you to do something that would be a breach of your duties to the court, you should consider whether you need to withdraw from representing them. You might find the CLSB guidance note on client confidentiality and acting with integrity helpful when considering this situation.
Duties to third parties
You have a duty to treat everyone you work with – including clients, colleagues, and third parties – fairly and equitably, and with dignity and respect. This is reflected in Principle 6 of the Code of Conduct and applies to all of your dealings with others, including during litigation.
There is a difference between robustly representing your client and being aggressive, and there is never any excuse for intimidating, bullying or harassing behaviour. Your conduct in litigation affects how you – and the Costs Lawyer profession – are perceived by third parties and the public, and you should therefore ensure you act with integrity, professionalism and courtesy at all times.
When representing your client, you should ensure that you treat all parties involved in the case fairly and respectfully. You should not take advantage of the other side or any third parties involved in any way. This applies particularly to unrepresented parties or vulnerable parties, who may have less experience of legal proceedings.
You should also ensure that you do not act aggressively towards any other parties. Behaviour that could be considered aggressive includes, but is not limited to:
- Asking questions or making statements simply to annoy, insult, intimidate or humiliate another person.
- Making submissions, statements or representations to the court or others that are not properly arguable.
- Making allegations that do not have legal merit – either deliberately or recklessly – to try to pressurise or influence another person.
- Making exaggerated claims about the costs or consequences of a particular course of action.
- Taking on, or defending, cases that have a weak chance of success without clearly explaining the potential risks and costs to your client.
- Being overly aggressive or excessive in correspondence with others, for example by using language designed to sound intimidating or threatening or being excessive in the amount or type of correspondence.
- Threatening to report a colleague to their regulator or another body for improper reasons, or to try to influence their behaviour in proceedings.
Improper and abusive litigation
An SRA paper on balancing duties in litigation identified the following types of improper or abusive litigation:
- predatory litigation
- predatory litigation involving clients
- abuse of the process
- taking unfair advantage
- misleading the court
- excessive or aggressive litigation
- conducting knowingly unwinnable cases
Conducting litigation that is excessive, aggressive or predatory, or knowingly conducting cases that have limited chances of success, risks damaging public confidence in the legal system. It is also not an appropriate and cost-effective use of public resources, and is therefore likely to breach your obligations under Principle 2 of the Code of Conduct (specifically, Principle 2.5). Conducting such litigation also risks attracting negative publicity and damaging your professional reputation.
If your professional opinion is that your client has limited chance of succeeding in their matter, you should advise them accordingly. This is in line with your duty to act in the best interests of your client, and with your duty to promote the appropriate and cost-effective use of court and litigant resources.
If you believe that your client is seeking to bring litigation that is predatory, aggressive or excessive, you should discuss this with them. Whilst you have a responsibility to act in accordance with your client’s instructions, you cannot use this as a justification for pursuing improper or abusive litigation.
You should ensure that you have thoroughly interrogated and considered the legal and evidential merits of the course of action your client wishes to pursue, and your duties to the court, the administration of justice and the rule of law. If your client insists on pursuing litigation or a course of action that is – in your professional opinion – improper, unjustified or unarguable, you should consider whether you are able to continue acting for them or whether you should withdraw from the case.
Balancing your duties
In practice, every situation will have unique characteristics and you must decide how to meet your professional and ethical obligations on a case by case basis. This means that you must exercise professional and situational judgement, and give consideration to any ethical issues at hand, when considering how to act.
Ultimately, if your client’s instructions conflict irreconcilably with your professional duties and ethical obligations, you will need to consider whether you are able to continue representing your client or whether you should withdraw.
Regardless of the situation you are facing, you should always consider your obligations under the Code of Conduct, and ensure that you are familiar with the Guidance Notes in the Costs Lawyer Handbook. If you are in doubt about what steps you should take, you should consider consulting a senior colleague. You can also contact us directly for assistance.