diylaw lip

December 1, 2017

Duties of a lawyer when acting as an advocate, fraud, and defamation.

diylaw lip

December 1, 2017

A lawyer is broadly speaking in English law, a generic term for a solicitor, a barrister, a legal executive, and a solicitor-advocate, regulated by a governing body with codes of conduct, a certificate to practice in the profession, and carrying sufficient indemnity insurance.

A solicitor and a solicitor-advocate’s conduct is governed by the Code of Conduct of the Solicitors’ Regulation Authority.

A barrister’s conduct is governed by the Code of Conduct of the General Council of the Bar.

Any lawyer who is regulated by the Law Society or the General Council of the Bar, and has a practising certificate and indemnity insurance, can be an advocate.

Barristers and Solicitor-Advocates (if properly accredited by their professional body or permission of the court), have higher rights of audience in the High Courts of Justice in civil courts, and the Crown Courts in criminal courts, to speak.

Litigants-in-person have full higher rights of audience with no qualifications or experience necessarily…

McKenzie friends are people who assist litigants-in-person with their case. Their role and ability to speak and to advocate is beyond the remit of this post.

All lawyers have an overriding duty as officers of the senior courts of England and Wales, to the court.

Section 51(6) and (7) of the Courts and Legal Services Act 1990, put Solicitor-Advocates and Barristers on par in respect of higher rights of audience in the Higher Criminal and Higher Civil Courts of England and Wales.

Sometimes, the duty to a client and the duty to the courts are conflicted.

The obvious example, by way of ethics, is where in criminal courts a defendant pleads not-guilty, but then admits to the lawyer that he/she committed the criminal offence alleged. In those circumstances, the advocate MUST decline to act. That is a clear example of conflicting duties.

What happens when a client asks you to represent them in a case which might be hopeless?

If it is fraud-related, then a practising barrister must not ‘…devise facts which will assist in advancing his lay client’s case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing…any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. [Code of Conduct, para 606]

Lawyers therefore engaged in advocacy, are faced with a conundrum. How do they possibly weigh up what the client wants, as opposed to what the court expects of an advocate representing someone?

Lord Steyn made the following comments in the case of Medcalf v Weatherill and Anor [2002] UKHL 27:

‘This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Lord Bingham in the 2002 case said:

‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would, however, agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’

…and now some information as to allegations of fraud ‘alleged fraud’, ‘suspected fraud’, ‘purported fraud’. The courts will deem any allegation containing the word fraud as defamatory if there is no truth in such allegations. Therefore, having reason to believe, or reasonable grounds, is no longer a defence to such allegations pursuant to the Defamation Act 2013. Unless the allegations are based upon truth, such allegations are likely to be defamatory, and you will find yourself facing damages and costs.

If it isn’t true, do not say it. Do not suggest it, unless it is true, rather than you believe it to be true.

September ‘16

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

diylaw lip

November 20, 2017

What happens when a claimant is in financial difficulties?

diylaw lip

November 20, 2017

This is not an unusual question. This issue arises a lot.

An individual brings a claim in the courts of England and Wales, (known as a claimant, and previously a plaintiff). For a variety of reasons, they cannot continue because they have run out of funds, or have found themselves in financial dire straits.

If you think that this is going to happen, or the claimant has financial issues, a tool in litigation is to apply for security for costs, depending upon the particular circumstances of the financial concerns, pursuant to Part 25.12 of the Civil Procedure Rules 1998 (‘CPR’).

Security for costs are monies that are paid into court to cover part or all of the defendant’s legal costs, in case the claimant is unable if he/she/it loses a case.

What if a claimant is financially impecunious? The courts having regard to all the circumstances may still award a sum for security for costs, but it may be a reduced figure. The reasoning would be that an application for security for costs ought not to be used to scupper a claim from being brought. Access to justice should be for all.

The conditions that have to be satisfied are set out to make an application for security for costs are set out at CPR 25.13. One or more of these conditions needs to be satisfied:

If the claimant is resident outside of the jurisdiction of England and Wales, but not resident broadly speaking in a country where a reciprocal agreement is not in force with that resident country to enforce judgments.
If the claimant is a company and there is a reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
If the claimant has changed his address since the claim was commenced with a view to evading the consequences of litigation.
If the claimant failed to give an address in the claim form, or gave an incorrect address in that form.
If the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.

A decision to make an order for security for costs is discretionary, having regard to all the circumstances.

If an individual is adjudged bankrupt (i.e. when a bankruptcy order is made), he/she no longer has any status to continue an action in court, because that right vests in their trustee-in-bankruptcy. See Section 306 Insolvency Act 1986.

The main case in point is that of Heath v Tang (1993) 3 All ER 694. If before a person is made bankrupt, he becomes bankrupt, the case is stayed until and unless the trustee in bankruptcy assigns the case to the bankrupt or agrees to be substituted.

What is the claimant is a company and the company goes into liquidation? A company is a separate legal entity to an individual and is governed by different rules to an individual.

If a company is placed into liquidation, then section 130(2) Insolvency Act 1986 applies. No action or proceedings can be proceeded with or commenced against the company or LLP or its property, except by leave of the court and subject to such terms and the court may impose.

What if a company is placed into administration? In such circumstances a moratorium is created and Schedule B1, paragraph 43 of the Insolvency Act 1986 applies.

Proceedings cannot progress without agreement by the administrator and leave of the court to do so. Proceedings are stayed and no one can bring a claim against the company, and the company, in turn, cannot bring a claim.

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

diylaw lip

October 6, 2017

When You Think You Are Right and Everyone Else Is Wrong?

diylaw lip

October 6, 2017

This blogpost will no doubt upset those who always think they are right, or know better. Worse still, those who have a certain outlook on life and an understanding of justice and truth, may find that their perception of things according to them, is not the same perception of matters considered according to a court of law.

It is aimed not only at litigants’ in person, but for those engaged and embroiled in litigation in the Courts of England and Wales.

According to Nobel prize winner Daniel Kahneman in his outstanding book, ‘Thinking, Fast and Slow’, which I highly commend you to read:

“Social scientists in the 1970s broadly accepted two ideas about human nature. First, people are generally rational, and their thinking is normally sound. Second, emotions such as fear, affection, and hatred explain most of the occasions on which people depart from rationality.”

— Kahneman D, 2011, p8

Amos Twersky posed the question:

“Are people good intuitive statisticians?”

— Kahneman D, 2011, p5

What does it matter to you , because you are right and your sense of justice is right. Right?

‘An individual has been described by a neighbour (sic) as follows: ‘Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail’.

Is Steve more likely to be a librarian or a farmer?’.

We all have stereotypes and biases. Libraries are supposedly quiet well-ordered places. The books need to be referenced in a certain way which requires a good idea for methodical detail. One would think therefore, that the description of Steve resembles that of a librarian. This is a predictable bias which does not take into account the number of farmers to librarians in a given area.

Now put into place statistical considerations. Steve lives in the USA. There are more than 20 male farmers for each male librarian in the United States. There are therefore many more farmers than there are librarians, and Steve is likely on a balance of probabilities applying statistical analysis to be a meek and tidy farmer, than he is to be a librarian.

Applying the views of cognitive and social psychologists, intuitive thought is dominant in the way that we all think.

“We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight.”

— Kahneman D,2011, p13

Now a question for you. Off the top of your head, what is 17 x 24?

Ok, you don’t know the precise figure. You know that the figure is not going to be a five or six digit answer. 10x 10 = 100. Easy! 17 x 24 = ???, but it will not be ?????, or ??, or ? ?????.

You know that by writing down and multiplying the two figures, mathematical steps were involved. Steps which you learnt when at school. This was an example of slow thinking.

It was not just your mind at work:

“The computation was not only an event in your mind; your body was also involved. Your muscles tensed up, your blood pressure rose, and your heart rate increased. Someone looking closely at your eyes while you tackled this problem would have seen your pupils dilate. Your pupils contracted back to normal size as soon as you ended your work – when you found the answer, or when you gave up.”

— Kahneman D, 2011, p20

Keith Stanovich and Richard West, psychologists, proposed two systems in the mind namely system 1 and system 2.

System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.

System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of system 2 are often associated with the subjective experience of agency, choice, and concentration.

We perceive ourselves to be system 2. ‘the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do’. (Kahneman D, 2011, p21)

System 1 is however, the dominant player in our thought process. That is, ‘the effortlessly originating impressions and feelings that are the main sources of the explicit beliefs and deliberate choices of system 2’. (Kahneman D, 2011, p21).

Automatic activities attributed to system 1 include:

‘Detect that one object is more distant than another; orient to the source of a sudden sound; complete the phrase ‘bread and…’; make a ‘disgust face’ when shown a horrible picture; detect hostility in a voice; answer 2+2=?; read words on large billboards; drive a car on an empty road find a strong move in chess; understand simple sentences; recognise that a meek and tidy soul with a passion for detail resembles an occupational sterotype’.

According to Kahneman, we are built to perceive the world around us, recognise objects, avoid losses, and fear what might be harmful to us.

Now apply system 1 to a situation in which you are in a state of the unknown. You do not know the outcome. There is considerable financial risk, and risk to reputation. The loss could be your reputation, your pride, your view of how people see you, money, your family, your home. The list is endless. You wind yourself up either to fight or to flee. Do you attack? Do you run away? Do you ignore what is going on around you in the hope that things said and demanded of you might simply go away and fall into oblivion.

Without implementation of system 2, you make choices and decisions under pressure which you may not have done, had you thought a bit more deeply and objectively about the dispute you are involved in.

2+2 = 4.

Under pressure, avoiding losses? You have a piece of evidence we will call 2. You have another piece of evidence which you perceive to be, say 2.3, and you come to the answer as 4.3 because that is your perception of things, and that is the weight you have placed on evidence to give you a figure.

You may say that the answer 4.3 is close enough to 4, and the Judge after all, is human, and will side with you because you are the disadvantaged party without funds, without resources. Justice will prevail. Even though the answer is 4, 4.3 will be good enough for you to win. Really?

…and this is the conundrum I face with people who think they are right, and that everyone else is wrong. It sort of adds up, but when checked against other factors with deeper more objective thinking, you realise that 2+2=4, and 2+2.3=4.3 and that what you needed to demonstrate your case is 2+2, but that is not what you have. 4, is not 4.3 is it?

In case I have lost anyone Kahneman gives the example of a bat and a ball together costing $1.10. If the bat costs $1 more than the ball, how much does the ball cost? The immediate answer is $0.10. That is representative of system 1. Do the maths. Go through the logic of the answer. If the total cost is $1.10, and there has to be one whole $ more, the ball must cost…$0.05.

There will be people who read this and say I have the figures wrong. There will be others who will never understand why it is. Re-check the figures.

System 2 requires attention and focus, rather than an intuitive feeling, an automatic system 1 thinking process.

Examples of system 2 include monitoring the appropriateness of your behaviour in a social situation, comparing overall values of two washing machines, and checking the validity of a complex logical argument.

The first thing that pops into your head, as to how you feel about something, and what should be done, with a tempering of the heat of an argument, and a deeper clearer thinking of the situation, may give you a different result.

There is good reason to consult someone independent and objective to your case in the hope that they apply system 2. That is not always the case however.

Kahneman asserts that since system 1 operates automatically and cannot be turned off voluntarily, errors of intuitive thought are often difficult to prevent.

“Biases cannot always be avoided, because system 2 may have no clue to the error.”

— Kahneman D, 2011, p28

We have all seen (I hope), the Invisible Gorilla, whereby a group of people stand in line passing a ball from oneto the other, and you are asked to count the number of times the ball passes, whilst someone in a gorilla suit jumps in and out of the crowd and waves his/her arms. Surprisingly, many if not most people miss sight of the gorilla. The gorilla becomes invisible.

Sometimes a litigant in person becomes obsessed with a certain ruling, or a certain observation of something, and completely misses the proverbial elephant in the room, or in the example cited above, the gorilla.

A good litigant will engage system 2. They will know not to rely or engage upon their initial thoughts generated by system 1, but instead to ‘sleep on it’, and to slowly and logically think things through.

I very much hope that I have given some food for thought. When you make decisions under pressure, or under extreme emotion, with a prospect of significant potential loss, mistakes can be made and it is good not to follow your heart and act intuitively, but to employ other modes of thinking to see the argument from different angles and in different ways, to re-check what you originally thought.

By doing so, your perception of right, might just be wrong….