In Summary

Maintaining Effective and Professional

Relationships with Clients

A competent advocate will be able to:

• Keep clients informed of the progress of the work including any complications, risks, additional costs and important time limits.

• Allow the client to make decisions by providing them with all the relevant infor­mation and evidence, including complaint processes.

• Ensure clients are aware of any risks or additional costs relating to their case and keep them appraised of progress on their case at all times.

• Build a relationship of trust with the client by addressing their concerns and responding sensitively to their needs.

• Be respectful to all clients and act in a way that promotes equality, diversity and inclusion.

• Identify when a client may be regarded as ‘vulnerable’ and ensure provisions are made available to the client to fully access legal services both before and at trial.

• Provide advice and guidance that is tailored in language and style according to the clients’ emotional, physical, neurodiverse, cultural or other needs.

• Handle sensitive situations as they arise by diffusing tensions, offering comfort and empathy where needed and avoiding patronising the client.

• Maintain the security and confidentiality of communications.

• Be able to assess when and if they should apply to be removed from the court record.

Maintaining Effective and Professional

Relationships with Others

(SQE Advocacy Assessed skill - see www.sra.org.uk)

1. The Court

A competent advocate will be able to:

• Treat court personnel and visitors with courtesy and respect including observing equality, diversity and inclusivity.

• Observe the ‘overriding objective' at all times when managing and progressing cases and during a trial.

• Understand the commercial, organisational and financial context in which courts work to avoid errors and/or lack of care, recklessness or dishonesty that impacts others.

• Use court processes in an efficient way observing and complying with court rules, procedure, processes and traditions.

• Meet timescales and other court requirements and avoid procedural irregularities.

• Comply with disclosure and understand when material may be exempt from dis­closure due to privilege or public interest immunity.

• Understand the seriousness of giving and breaching undertakings to the court.

• Avoid placing themselves in a position where they would be in contempt of court or subject to a wasted costs order.

• Avoid wasting the court's time.

• Progress cases in ways that are honest, transparent and fair and avoid the mis­use of evidence, tampering with evidence or producing false evidence.

• Adhere to court rules and procedures.

2. Witnesses

A competent advocate will be able to:

• Treat witnesses with courtesy and respect including observing equality, diversity and inclusivity.

• Assess whether a witness is competent and compellable to give evidence in court.

• Avoid offering witnesses inducements or benefits in exchange for their testimony.

• Recognise when a witness may be ‘vulnerable' and in need of special measures to testify (if eligible).

• Be prepared to adapt and tailor their style of questioning appropriate to ‘vulner­able' or ‘protected' witnesses.

3. Experts

A competent advocate will be able to:

• Treat experts with courtesy and respect including observing equality, diversity and inclusivity.

• Provide clear instructions to experts about the nature of their instructions and the scope of the client's objectives and provide all relevant evidence to assist the expert to reach an opinion.

• Ensure an expert's report is in the correct format as required by the relevant procedural rule, including statements or declarations of truth.

• Cooperate and assist in the process of helping experts to narrow the issues between them.

• Recognise when to seek help from other experts including delegating matters beyond the expertise of the chosen expert.

• Ensure the chosen expert(s) is aware of their duties and obligations to the court.

4. YourOpponent

• Always treat your opponent and other legal professionals with respect and courtesy.

• Be prepared to assist (to a degree) an unrepresented party who does not have a McKenzie Friend.

• Be cooperative when asked to provide information to other legal professionals and do so in a prompt and timely way (this excludes information that is confi­dential or where your client objects to the provision of the information and you are not under a compulsion to reveal the information).

Key Practice Case

The case of R v Achogbuo [2014] EWCA Crim 567 is a reminder of the need for lawyers to communicate with each other and avoid making misconceived appli­cations to the court due to a failure to conduct independent enquiries and to avoid relying solely on a client's word or recollection.

In this case the defendant had been convicted in the Crown Court of two counts of sexual assault on a child under 13 contrary to s. 7 of the Sexual Offences Act 2003. The defendant then instructed two new solicitors to lodge an appeal. The first solicitors applied for the case file which they received by email and then took no further action. The defendant then instructed the second set of solicitors who requested the client's case file from his trial solicitors but there was a delay of some three months which became the subject of a complaint to the Legal Services Ombudsman and required intervention by the Solicitors Regulation Authority.

The papers were then received by the defendant's new solicitors, and they lodged an appeal notice based on the ground that an application to admit hearsay evi­dence by the prosecution should have been refused by the trial judge.

allegations of incompetence by the previous trial lawyers. The allegation was that the trial lawyers had failed to advise the defendant about his right to waive legal professional privilege and discuss the advice given to him to give a ‘no comment' interview to the police. The application also requested an extension of time to file the appeal. The application however failed to mention the previ­ous application that had been made to the court. The court then obtained per­mission from the defendant's solicitors to write to the previous trial solicitors and counsel to establish what advice had been given about the no comment interview. It was established that the defendant had been fully advised and had been made aware that the jury could draw adverse inferences at trial based on his silence at the police interview. The court reached the conclusion from these enquiries that the appeal had no prospect of success; in addition, it was a frivolous and vexatious application as the court had not been informed of the previous unsuccessful appeal application.

The court stated:

The court expects not only the highest standards of disclosure but also strict compliance with the duties of solicitors and advocates. It is the funda­mental duty of advocates and solicitors to make applications to this court after the exercise of due diligence. In cases where the incompetence of trial advocates or solicitors is raised, the exercise of due diligence requires, hav­ing made enquiries of trial lawyers said to have acted improperly, taking other steps to obtain objective and independent advice before submitting grounds of appeal to this court based on allegations of incompetence.

[20]

The court went further in the case of R v McCook [2014] EWCA Crim 734 and stated that

[i]n any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solici­tors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so.

Practice Tips

• Apply common sense to everyday situations and ensure that client care and professional conduct rules remain at the forefront of your mind when deal­ing with the client and others.

• Remember that an advocate who is able to respect others will gain the trust and confidence of others.

• Always make informed decisions based on client and witness needs and the type and nature of evidence in the case and the permissible routes that you can take within the confines of the procedural rules and legislation.

• Each case will differ in nature and degree and you should be prepared to be flexible and adaptable in the way you handle cases particularly if vulnerable or protected persons or litigants in person are involved.

• Your relationship with the court is a special one built on traditions, cus­toms, rules and legislation. The court exercises a supervisory role over your management and conduct of cases and expects high standards and you should bear this in mind at all times.

Practice Risks

• Ignoring the overriding objective and, where applicable, pre-action proto­cols when preparing, progressing and presenting a case in court will draw criticism from your opponents and the court and could lead to wasted costs or the striking out of a claim or statement of case.

• Issuing proceedings in the wrong court or jurisdiction will cause undue delay and unnecessary costs for the client.

• Focusing solely on the case and not meeting the important administrative aspects in terms of keeping timescales, keeping the client informed of pro­gress, costs, risks and the complaints procedure could lead to allegations of misconduct.

• Assuming litigants-in-person or third parties such as experts will always understand the requirements of procedural rules may mean that your case is affected or delayed by procedural irregularities.

• Failing to manage your client's expectations could mean that you have to terminate your retainer with the client due to disagreements that could compromise your professional integrity.

EXERCISE A

Test Your Knowledge - Problem Scenario

You are a trainee solicitor. You are asked to attend a possession hearing in open court to represent a landlord. The barrister who was due to attend has been involved in an accident on the way to court. You have never dealt with a pos­session case before and the training you have received so far has largely been in criminal law matters. However, given that this is an emergency, you agree to go to court to “give it a go”. When you arrive at court you tell the court clerk that you are a lawyer acting for the claimant landlord. You then proceed to make representations in court on behalf of your client and you successfully obtain a possession order.

What issues of competence and relationship breaches arise from your actions?

Go to Part C for a suggested answer.

EXERCISE B

Test Your Knowledge - Multiple Choice Tests

Test One

You are acting for a client in a clinical negligence action against a local hospi­tal. Your client's claim alleges that he sustained injuries following heart surgery which was negligently performed. You have received a report from your expert which contains a number of errors. Identify below which of the following from the expert's report would not be regarded as an error under the appropriate civil procedure rule CPR Part 35 and CPR PD 35 (you will need to read this rule and practice direction):

1. The report has been addressed to your firm.

2. The report states the substance of instructions but does not contain the expert's qualifications.

3. The report contains a statement that the expert understands their duty to the court and has complied with that duty.

4. The report contains a statement of truth with the following wording: “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. I am aware that if my report is introduced in evidence, then it would be an offence wilfully to have stated in it anything that I know to be false or do not believe to be true.”

5. The report contains details of the literature or other material that the expert has not read when writing the report.

Test Two

You are acting for a 13-year-old child in criminal proceedings for theft. Which of the following would be regarded as the most appropriate and correct action to take?

1. Inform the prosecution that they have incorrectly commenced proceedings against the child as the age of criminal liability is 14.

2. Confirm to the court that your client will be giving unsworn evidence.

3. Advise your client that they will have a right of election for their case to be heard in the adult Crown Court.

4. Seek special measures on the basis that your client is a protected client who lacks capacity under the Mental Capacity Act 2005.

5. Seek an ‘anonymity order' that your client can give evidence without dis­closing their identity.

Go to Part C for the suggested answers.

Self-Reflection Checklist

References

Books

T Bingham, The Rule of Law (Penguin Books, 2010).

P Devlin, Trial by Jury: The Hamlyn Lectures 8th Series (Stevens and Sons Ltd, 1956).

Journal Articles

K Hollingsworth, ‘Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights' (2013) 76 (6) Modern Law Review 1046.

E Rowden and A Wallace, ‘Remote Judging: The Impact of Video Links on the Role of the Judge' (2018) 14 (4) International Journal of Law in Context 504.

T Ward, ‘Explaining and Trusting Expert Evidence: What is a ‘Sufficiently Reliable Scientific Basis?' (2020) 24 (3) Journal of Evidence and Proof 233.

Cases

Assaubayev v Michael Wilson and Partners Ltd [2014] EWCA Civ 1491.

Briggs v The Law Society [2005] EWHC 1830.

Civil Aviation Authority v The Queen on the Application of Jet2.Com Limited and the Law Society of England and Wales [2020] EWCA Civ 35.

Conway v Rimmer [1968] AC 910.

Commissioner of the Police of the Metropolis v Bangs [2014] EWHC 546.

Denton v TH White Ltd [2014] EWCA Civ 906.

Gould and Others v R [2021] EWCA Crim 447.

Harcus Sinclair LLP and Another v Your Lawyers Ltd [2021] UKSC 32.

Matthew and Others v Sedman and Others [2021] UKSC 19. McKenzie v McKenzie [1971] P 33.

McShane v Lincoln [2016] unreported approved judgment 28 June 2016.

Case No B11B1440.

Polanski v Conde Nast Publications [2005] UKHL10.

Poule Securities Limited v Howe and Others [2021] EWCA Civ 1373.

R v Achogbuo [2014] EWCA Crim 567.

R v Bonython (1984) 38 SASR 45.

R (Hysai) v Secretary of Statefor the Home Department [2014] EWCA Civ 1633.

R v McCook [2014] EWCA Crim 734.

R v Pritchard (1836) EWHC KB1.

R v Seaton [2010] EWCA Crim 1980.

R v Umerji [2021] EWCA Crim 598.

SC v the United Kingdom (2005) 40 EHHR 10.

Three Rivers District Council & Others v The Governor and Company of the Bank of England (No 5) [2004] EWCA Civ 218.

Legislation

Constitutional Reform Act 2005.

County Courts Act 1984.

Crime and Disorder Act 1998.

Criminal Attempts Act 1981.

Criminal Justice Act 2003, s. 45 & s. 46.

Criminal Procedure (Insanity Act) 1964, s. 4, s. 4A.

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s. 1.

Defamation Act 2013, s. 11.

Domestic Violence Crime and Victims Act 2004, s. 17, ss. 22 & 24.

Equality Act 2010.

European Convention on Human Rights 1950, Article 6.3(d).

Human Rights Act 1998.

Legal Services Act 2007.

Limited Liability Partnership Act 2000.

Magistrates’ Courts Act 1980.

Mental Capacity Act 2005.

Powers of Criminal Courts (Sentencing) Act 2000, s. 11(1).

Prosecution of Offences (Custody Time Limits) 1987.

Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 2000. Youth Justice and Criminal Evidence Act 1999, s. 27 & s. 30.

Legal Services Act 2007.

The Practice Statement (1966) 3 All ER, 77.

Procedure Rules

Civil Procedure Rules Parts 1A, 2.9, 21, 42.

Civil Procedure Rules PD 40B, para 8.1, 8.2.

Criminal Procedure Rules Part 18.

Practice Directions

Civil Procedure Rules Practice Direction 1A.

Criminal Procedure Rules Practice Direction: Evidence.

Other

Equal Treatment Bench Book.

Equality and Human Rights Commission, ‘Is Britain Fairer? The State of Equality and Human Rights 2018 (EHRC 2018).

A Handbook for Litigants in Person, Bailey, E (ed) and Boers, P, Hampton, A, Hodge D and Hughes, P accessed via www.judiciary.uk.

Law Commission, ‘Unfitness to Plead’: Volume 1 Report (2016) Law Com No. 364. Magistrates’ Court Adult Bench Book.

SRA Standards and Regulations Code of Conduct for Solicitors, RELs and RFLs Code 2 and Code 3.

Solicitors’ Regulation Authority’s Rights of Audience Competence Standards.

The Lammy Review ‘An Independent Review into the Treatment of, and outcomes for, Black Asian and Minority Ethnic Individuals in the Criminal Justice System (David Lammy MP 2017).

Thomas, C ‘Are Juries Fair?’ (Ministry of Justice Research Series 1/10, 2010).

Websites

www.judiciary.uk www.legalombudsman.org.uk

www.sra.org.uk www.supportthroughcourt.org