Legal Responsibility to Professional Third Parties

A. Common Law

i. Other Side in Litigation

In a situation, such as that arising in Ernst & Young v Butte Mining Co, lay clients benefit from the court imposing a requirement of fairness in litigation.

⁹⁰ SRA, Handbook 2011, as amended, Outcome 11.1 and Indicative Behaviour 11.9.

⁹¹ ibid, Outcome 11.3.

⁹² ibid, Outcome 11.2.

⁹³ ibid, Outcome 11.4.

⁹⁴ ibid, Indicative Behaviour 11.1.

⁹⁵ ibid, Indicative Behaviour 11.2.

⁹⁶ ibid, Indicative Behaviour 11.3.

⁹⁷ ibid, Indicative Behaviour 11.10.

⁹⁸ ibid, Indicative Behaviour 11.4.

⁹⁹ ibid, Indicative Behaviour 11.7.

¹⁰⁰ ibid, Indicative Behaviour 11.8. lawyers. An obvious example is where a mistake by lawyers could enable their client to sue for negligence, but the court intervenes to stop the opponent taking advantage of the mistake.

Delivering judgment in Ernst & Young v Butte Mining Co, Walker J said:

Heavy, hostile commercial litigation is a serious business. It is not a form of indoor sport and litigation solicitors do not owe each other duties to be friendly (so far as that goes beyond politeness) or to be chivalrous or sportsmanlike (so far as that goes beyond being fair). Nevertheless even in the most hostile litigation... solicitors must be scrupulously fair and not take unfair advantage of obvious mistakes.. [This duty] is intensified if the solicitor in question has been a major contributing cause of the mistake.¹⁰¹

In the context of court proceedings, such an obligation of fairness can be seen as part of the duty to uphold the administration of justice.

VIII.