Conclusion
Lawyers’ performance of the litigation role has, historically, been closely controlled by the courts. Extensive rules of court detail how every step and task in litigation should be performed.
Lawyers are incentivised to obey the procedure because they may be censured, or fail to recover costs, if they do not. Maybe for these reasons, specific rules regarding litigation did not originally feature in solicitors’ conduct rules. There were some in the Bar Code relating to drafting. General rules of conduct, for example, treating third parties fairly, applied in litigation as elsewhere.Lawyers’ role in civil litigation is absorbing new requirements for co-operation following the Woolf reforms. These moves accompany reduced levels of legal aid and a significant push towards mediation rather than adjudication. This might be said to mark a change from a conception of justice as legal formality to one focusing on the accessibility of dispute resolution. In the process of this transition, lawyers’ control of litigation has given way to judicial control. Procedures have been introduced to increase transparency and encourage settlement. Costs sanctions are increasingly used to punish improper or incompetent conduct. The ethical landscape has changed considerably, with new procedures reducing the scope for tactical manipulation of litigation procedure.
219 ibid, per Clarke LJ.
220 Re Boodhoo, Solicitor [2007] EWCA Crim 14.
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