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| || ||Neutral Citation Number:  EWCA Civ 1567|
| || ||Case No: A2/2002/0473|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL ( DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE IN BANKRUPTCY
(The Hon Mr Justice Lightman
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||30 October 2002|
B e f o r e :
LORD JUSTICE SCHIEMANN
LADY JUSTICE ARDEN
LORD JUSTICE DYSON
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Jones QC (instructed by Messrs Tarlo Lyons) for the Appellant
Mr Simon Mortimore QC (instructed by Messrs Holmes Hardingham) for the Respondent
Mr Charles Hollander QC for the Bar Council
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lady Justice Arden giving the judgment of the court:
- This is an appeal with the permission of Chadwick LJ from the order of Lightman J dismissing with costs an appeal from an order of Mr Registrar Jaques, dated 10 January 2002, in turn dismissing the application of the appellant, Mr Skjevesland, for retrial of the bankruptcy petition presented against him by the respondent (“Geveran”), on which a bankruptcy order was ultimately made on 15 July 2002. Mr Skjevesland claims that he is entitled to a retrial on the grounds that counsel for Geveran, Mr David Marks, was acquainted with Mr Skjevesland’s wife and her friends between 1985 to 1991, a period that was the subject of examination in the bankruptcy petition.
- The principal steps leading to the making of the bankruptcy order against Mr Skjevesland were as follows. In July 1999, Geveran served a statutory demand on Mr Skjevesland for £331,590 due under two Norwegian judgments registered in England on 30 March 1999. On 7 August 1999, Mr Skjevesland’s application to set aside the statutory demand was dismissed and the bankruptcy petition was presented on 29 February 2000. At the hearing of that petition, there was a dispute as to whether Mr Skjevesland had acquired a domicile of choice in England between 1982 and 1996 and he and his son were cross-examined (among other matters) as to whether 21 Cadogan Gardens, London SW3 was his home in that period.
- The hearing of the petition was adjourned on 8 October 2001. Before the return date Mr Skjevesland’s wife learnt that Mr Marks was counsel for Geveran and she recalled that she had known him and informed her husband. Counsel for Mr Skjevesland submitted that, because of his acquaintance with Mr Skjevesland’s wife and her friends, Mr Marks might consciously or unconsciously have obtained information about Mr Skjevesland’s family that might give rise in the mind of a lay observer to the view that justice might not be done or seen to be done and thus undermine public confidence in the administration of justice. He relied on the Code of Conduct for the Bar of England and Wales which provides that a barrister should not accept instructions if to do so would cause professional embarrassment and on the law as to the position of judges established in Re Medicaments and Related Classes of Goods (No.2)  1 WLR 700 (referred to below as Re Medicaments).
- The Registrar dismissed Mr Skjevesland’s application and went on on 15 July 2002 to make a bankruptcy order. He accepted Mr Skjevesland’s submissions on the question of domicile of choice but held that he had jurisdiction to make a bankruptcy order on the grounds of Mr Skjevesland’s residence in England in the period 1997 to 2000. Mr Skjevesland appealed against both the Registrar’s order on his application arising out of Mr Marks’ position and the Registrar’s order on the bankruptcy petition to the High Court, but only the former appeal has been heard. It came before Lightman J, to whose judgment I now turn.
- In his judgment, the judge pointed out that there was no question of Mr Marks having obtained any information about Mr Skjevesland, or of Mr Marks having inhibited Mr Skjevesland in adducing his evidence. The judge did not consider the Code of Conduct for the Bar of England and Wales (to which I will refer as the Code of Conduct) added anything to the guidance as to when a judge or tribunal is disqualified from adjudicating by the appearance of bias. This guidance was to be found in Re Medicaments, as considered in Porter v Magill  2 WLR 37. In that case, Lord Hope formulated the test in these terms:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (page 84).
- The judge held that the same guideline in his view applied to objections to the hearing of a case by a judge as applied to the objections to participation by counsel. However, the judge held that there was a difference in the application of the principle just mentioned in these two cases. The judge held:-
“The adjudicatory role of the judge renders his impartiality and his freedom from outside influences the cornerstone of the legal process. The adversary role of the advocate generally does not call for such freedom from outside influences though it may do so in the most exceptional cases ...”
- The judge gave as examples of the exceptional cases the case where the advocate is in possession of confidential information and, in some circumstances, cases where the advocate had had an intimate relationship with someone else involved in the proceedings. The judge pointed out that the authorities establish that a legal adviser can “change sides” provided he does not misuse confidential information. In this case, however, Mr Marks had never acted for Mr Skjevesland or his family. Moreover, the association which Mr Marks had had with his wife did not prejudice Mr Skjevesland in any way. The objection was of no substance.
- The judge added that there was no question of Mr Marks having been in breach of the Code of Conduct in that his participation in the proceedings could not have prejudiced or appeared to prejudice the administration of justice. The judge also referred to the fact that the Registrar had expressed regret that Mr Marks did not disclose his connection before or at the beginning of the hearing. However, the judge pointed out that, just as judges had to be circumspect before declaring any relationship which could not reasonably prejudice the hearing of the case, so too counsel should be circumspect before declaring a relationship which likewise could not fairly be regarded as giving rise to an objection.
- It is common ground that Mrs Skjevesland and Mr Marks met in the 1980s. Mrs Skjevesland introduced Mr Marks to five of her close friends. Mr Marks visited her at her home at 21 Cadogan Gardens on at least two occasions. Mrs Skjevesland attended a party at Mr Marks’ house. They may have met some five times. One of Mrs Skjevesland’s friends remained friendly with Mr Marks until about 1991 and another until the end of the 1980s. During this period these persons remained close friends also of Mrs Skjevesland. Mrs Skjevesland was not cross-examined. Mr Marks had no contact with Mr Skjevesland or his son, who was also a witness.
The Code of Conduct of the Bar of England and Wales
- The Code of Conduct of the Bar of England and Wales (referred to below as the Code of Conduct) contains the well-known ‘cab-rank rule’ which imposes an obligation on counsel to accept a brief except in certain specified situations, including where he would be professionally embarrassed because by reason of some prior connection it would be “difficult for him to maintain his professional independence or because the administration of justice might be or might appear to be prejudiced” (paragraph 603(d)). This is not a case where Mr Marks’ professional independence was affected as he had little recollection of Mrs Skjevesland.
- The relevant part of the Code of Conduct provides:-
“Acceptance of instructions and the ‘cab-rank rule’
601 A barrister who supplies advocacy services must not withhold those services:
a) on the ground that the nature of the case is objectionable to him or to any section of the public;
b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).
602. A barrister in independent practice must comply with the ‘cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:
a) accept any brief to appear before a Court in which he professes to practise;
b) accept any instructions;
c) act for any person on whose behalf he is instructed;
and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct or innocence of that person.
603 A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
a) - c) ...
d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;
f) if there is a risk that information confidential to another client or former client might be communicated to or used for the benefit of anyone other than that client or former client with their consent;
Submissions on behalf of the Appellant and Respondent
- Mr Richard Jones QC, for Mr Skjevesland, submits that the question is whether counsel should continue to act in these circumstances and whether he should make disclosure to the opposite side so that they can make an informed decision as to whether to object. He submits, in the circumstances of this appeal unpersuasively, that had disclosure been made the problem in the present case would have been avoided.
- Mr Jones does not contend that Mr Marks had any confidential information. Rather, the key to his submission is his contention that during the course of his relationship with Mrs Skjevesland and her friends Mr Marks consciously or unconsciously obtained information or formed impressions about her family which, when viewed in the context of the issue of domicile of choice which was before the court on the bankruptcy petition, would or might have given rise to the perception of a lay observer that justice might not be done or be seen to be done, thereby undermining the confidence of the public in the administration of justice. Mr Jones cannot point to any questioning or aspect of the conduct of the case by Mr Marks which can be said to have arisen by reason of facts complained of. He submits that that is not necessary. He submits that Mr Marks was professionally embarrassed for the purposes of the Code of Conduct when domicile of choice became an issue.
- Further, he submits that the correct test to be applied here is the test in Re Medicaments. He submits that the judge neither applied that test correctly nor considered the impact of the issue of domicile of choice. Mr Jones relies on the fact that discovery of Mr Marks’ involvement caused shock and consternation to Mr and Mrs Skjevesland.
- Mr Jones also relies on the principle of equality of arms in article 6 of the European Convention on Human Rights. He submits that there is an underlying principle that neither side should be able to present its case so that it places his opponent at a substantial disadvantage.
- Mr Simon Mortimore QC appears for Geveran. He submits that the decision of the judge was correct. He submits that the authorities establish only that a legal adviser can be restrained from acting for his client if he has confidential information belonging to the party seeking to restrain him from acting. In Bolkiah v KPMG  2 AC 222 the House of Lords held that the court can restrain a solicitor who has relevant confidential information, or his firm, from acting for a client with an interest adverse to that of the former client unless it is satisfied that there is no real risk of disclosure. Lord Millett held that in such a case the court’s intervention is founded not on the avoidance of any perception of possible impropriety but on the protection of confidential information (page 234). Accordingly, Mr Mortimore submits that the perception of possible unfairness in the present case is not enough.
- Mr Mortimore accepts that, if there was an irregularity for the purposes of CPR 52.11(3)(i) in the course of a trial, any order made at the trial could be set aside but he submits that this could only occur after its conclusion. For this purpose mere breach of professional obligation is not enough. In this case, however, it was not suggested that the trial was unfair or that evidence was received which ought not to have been received or that Mr Skjevesland was inhibited from presenting evidence which he wanted to present. Mr Mortimore supports his argument by a number of authorities including the recent case of Price v General Dental Council  EWHC Admin. 653 (CA) where the Court of Appeal held that, in a case where counsel had breached his professional obligations in the manner in which evidence was obtained, the question for the court was whether the criminal proceedings should be stayed on the ground that by reason of admission of that evidence (or, in a criminal case, misconduct by the prosecution) a fair trial could no longer be had.
- Mr Mortimore accepts that in exceptional circumstances a party may be able to object to counsel acting for the other party even where no question of confidential information arises. This would have been the position in R v Batt  Crim.LR 910 where replacement counsel for the prosecution brought in on the second day of the trial cohabited with counsel for the defence but the accused had waived his objections. The Court of Appeal dismissed the appeal because of the accused’s agreement but observed that it was undesirable for cohabiting counsel to appear on opposite sides in a contested criminal case. In Re L  1 WLR 100, it was alleged in care proceedings that there was an intimate rather than a social relationship between the advocate for a local authority and the advocate for another party. Wilson J held that an independent and fair-minded observer might consider that because of that intimate relationship there was a real possibility that the court might not receive independent and impartial representations from the local authority, whose role was of great importance in care proceedings. Wilson J accordingly made an order declaring that the solicitors were no longer acting. Mr Mortimore submits that the facts of Re L are far removed from the present case.
- Mr Mortimore also relies on the “cab-rank” rule set out above. Because the duty of a barrister is to accept instructions, Mr Mortimore submits that he should not yield too readily to suggestions that because of some connection arising from his social dealings it would be difficult for him to maintain professional independence or that the administration of justice might appear to be prejudiced within the relevant parts of rule 603(d) of the Code of Conduct. The courts have held that a judge should have solid reasons for feeling personally embarrassed as it would be wrong to yield to a tenuous or frivolous objection (see Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451 at 478 – 479). This is all the more so in the case of a barrister. Moreover, the barrister’s obligations are owed to the court and not to the other party. Furthermore, a breach of the Code of Conduct would give no direct right of complaint.
- Mr Mortimore makes an alternative submission. His starting point is that the correct test is not that in Medicaments. In most cases the relevant enquiry is simply whether there is a risk of use of confidential information or whether there has been a serious procedural irregularity. There is a distinct difference between the role of the judge and the role of an advocate for a party. Mr Mortimore submits that the judge’s decision should be affirmed on the basis that the applicable test is whether the trial was, in fact, unjust because of a serious procedural or other irregularity arising from the cross-examination of Mr Skjevesland and his son in the light of Mr Marks’ past social acquaintance with Mrs Skjevesland and her friends or because Mr Skjevesland or Mrs Skjevesland or anyone else could have obtained an injunction to restrain counsel from acting for Geveran on the trial of the petition. Mr Mortimore submits that if these tests had been applied, the judge would have found no unfairness or miscarriage of justice because no confidential information was involved. The retainer of Mr Marks neither gave Geveran any perceptible unfair advantage nor inhibited evidence adduced by Mr Skjevesland.
- On the question whether Mr Marks should have disclosed his acquaintance with Mrs Skjevesland to the court as suggested by the Registrar, Mr Mortimore submits that disclosure should not be required in cases such as the present because to do so would simply encourage objections.
Submissions on behalf of the Bar Council
- At the invitation of Chadwick LJ, the Law Society and the Bar Council of England and Wales were invited to make submissions on the question “whether and in what circumstances an advocate ought to disclose to the court at the outset of the hearing that he is or was acquainted socially with the litigant against whom he is instructed to appear or a close member of that litigant’s family”. The Law Society informed the court that it did not wish to make submissions. The Bar Council instructed Mr Charles Hollander QC on its behalf. We are indebted to him for his assistance, which was directed to the issues of principle that arise, not to the merits of the present appeal. In his full submissions, he addressed a number of issues which do not directly arise and which it will not be necessary to decide but in so doing gave the court a helpful conspectus of the whole area.
- Mr Hollander’s submissions are as follows. In some circumstances the role of counsel is not adversarial in the traditional sense, as where counsel acts as counsel in child care proceedings or as a friend of the court. In such circumstances, the court might consider that the litigant should have a right to an unbiased opposing counsel. However, article 6 of the European Convention on Human Rights (“the Convention”) only provides a right to an independent and impartial tribunal and the principle has not been extended by the European Court of Human Rights beyond the decision maker (Lester & Pannick, The European Convention on Human Rights, para 4.6.52). Mr Hollander examined the present problem from four different perspectives, that of counsel, that of the lay client, that of the litigant with whom counsel was socially acquainted and that of the court. In addition, he draws attention to the fact that the problem can either arise before the hearing or after the hearing, for example, on an appeal. In the latter case, issues of waiver may arise and the question is likely to be whether the litigant obtained a fair trial.
- Mr Hollander identifies the following risks:-
i) a use of confidential information;
ii) professional embarrassment of counsel;
iii) infringement of the Convention right to equality of arms;
iv) concerns as to public confidence in the administration of justice.
- Confidential information should be such as to give a right to prevent its use and not simply be information, for example, that the litigant is impressionable and liable in cross-examination to accept whatever counsel puts to him.
- As to professional embarrassment, Mr Hollander submits that this would usually involve a risk of a breach of what Millett LJ referred to in a different context in Bristol and West Building Society v Mothew  Ch.1 as the “no inhibition” principle, namely a risk that counsel will be unable to represent his client without his conduct consciously or unconsciously being influenced by the relationship. Thus counsel may be professionally embarrassed if, for instance, his professional duty to his own client would require him to argue that a friend had been negligent.
- As respects equality of arms, the principle is that every party must have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage viz a viz his opponent (De Haes and Gijsels v Belgium  25 EHRR 1, para 53). In this regard, appearances are important as well as sensitivity to the fair administration of justice (Bulut v Austria (1996) 24 EHRR, page 84, para 47).
- Mr Hollander submits that the question whether there is an inequality of arms must be one of degree and depend on the facts. An example would be where counsel has personal knowledge which is not confidential information but which might be seen as giving an unfair advantage or where the case was a criminal trial.
- Counsel should always disclose the matter to his own client if a problem of confidential information or professional embarrassment arises, or arguably arises, even if counsel does not think there is an objection in his acting because the client may wish to instruct other counsel in any event. Alternatively, if it leads to an objection the client may hold him responsible for the wasted expenditure. Moreover, if indeed counsel is professionally embarrassed that objection does not go away simply because his lay client consents to his acting.
- Different circumstances arise where the litigant on the other side objects. This is likely to arise only in very limited situations since if counsel had confidential information or counsel felt that his own conduct would be affected by his prior relationship with the opposing party he would be professionally embarrassed and should have ceased to act.
- In this situation the court is normally looking at the matter prospectively, that is before the trial. The court will want to pay proper regard to the sensitivities of the litigant to whom the litigation may be extremely important. Mr Hollander submits that there will not be many cases where the court accedes to an objection from the litigant because of the effect it will have on the trial and on counsel’s own client.
- In order to ascertain whether the objection should be sustained, the court should investigate the facts. This was emphasised by the Privy Council in Man o’ War Station Ltd v Auckland City Council  UK PC 28. In that case Lord Steyn emphasised the importance of “an intense focus on the essential facts of the case” in cases of apparent bias. Thus the court should consider whether the relationship was confidential or fiduciary in its nature. In A v B  2 All ER 545, para 11(ix) the court considered the circumstances in which a personal relationship was of a confidential or fiduciary nature. When a confidential relationship continues between counsel and the litigant on the other side there should normally be an absolute bar on counsel acting. If the relationship has ceased, the question is whether there has been confidential information, professional embarrassment, a violation of article 6 or detriment to the administration of justice.
- Mr Hollander drew attention to the difficult issues to which consent to waiver can give rise. The European Court of Human Rights said in Hakansson and Sturesson v Sweden (1990) 13 ECHR 1, para 66 that a waiver of article 6 rights must be made in an unequivocal manner and must not run counter to any important public interest.
- As the facts of this case demonstrate, the court may have to consider relationships between counsel and persons involved in the litigation other than the litigants, such as witnesses. On the other hand in such circumstances the facts need to be stronger for a problem to arise.
- As respects disclosure by counsel to the court, Mr Hollander submits that the only circumstances in which any duty to disclose the matter to the court may arise is where there is concern as to the administration of justice which will normally only arise in cases where there is, or (possibly) was, a confidential or fiduciary relationship. These are cases where counsel will normally have declined to act at the outset. As to disclosure to the litigant on the other side, the main concern is that the litigant may not know or focus upon the identity of the opposing counsel but will recognise counsel at court and object. Mr Hollander submits that there will not be many cases where on the one hand the relationship is such as to give rise to the realistic prospect of a successful objection, but on the other hand counsel decides he is not professionally embarrassed. There is no reason to notify in any other case. However, the prudent course in any borderline case will on Mr Hollander’s submission be that counsel informs his own client and that his solicitors write to the other party drawing attention to the matter so that any objection can be considered early.
- We have no doubt that the judge was correct to dismiss the appeal from the order of the Registrar. Although the Registrar went on to make a bankruptcy order, it is accepted on Mr Skjevesland’s behalf that Mr Marks’ acquaintance with his wife and her friends could only have been relevant to the question of domicile of choice and Mr Skjevesland ultimately succeeded on that issue before the Registrar. A bankruptcy order was made against him because he failed on another issue, namely that of residence, and he has appealed from the Registrar’s judgment on this point. However, there is no cross-appeal on the domicile of choice issue by the petitioning creditor. Accordingly, the question whether Mr Marks could participate in the proceedings has become academic save in relation to the judge’s order for costs. When the matter was before the judge the position as we now know it was not known by the judge or anyone else, and, as this is an appeal only against the judge’s costs order, we have to decide this appeal on the basis of the same information as the judge.
- It is well established that as an officer of the court an advocate has a duty to the court, which overrides his duty to his client (see Rondel v Worsley  1 AC 191 at 227-8, per Lord Reid). Accordingly, an advocate may not deceive or knowingly mislead the court. The advocate must bring to the attention of the court all relevant decisions and legislative provisions of which he is aware (see for example, Copeland v Smith  1 All ER 457). The advocate must bring to the attention of the court any procedural irregularity during the course of the trial (see R v Langford, The Times, 12 January 2001). The advocate must conduct the proceedings economically (see Practice Direction (Civil Litigation: Case Management  1 WLR 508). Under the Civil Procedure Rules, it is the express duty of the parties, and hence their legal advisers (including advocates), to help the court to further the overriding objective in the Civil Procedure Rules (CPR 1.3). These are merely some examples of the practical application of the advocate’s duty to the court.
- It is also well established that an advocate or other legal adviser who has acted for one party and has relevant confidential information may commit a breach of confidence, and be liable to an order restraining him from so acting, if he acts for another party against his former client unless he can show that there is no risk of disclosure (see Bolkiah v KPMG, above).
- We accept that the circumstances (other than those where he has relevant confidential information) where an advocate may be restrained by the court from acting as an advocate in litigation are likely to be very exceptional. However, such circumstances have occurred in the past. Thus in R v Winston Smith (1975) 61 Cr App R128, a pupil barrister met the accused and discussed his case with him and then subsequently appeared behind prosecuting counsel at the accused’s trial. The Court of Appeal assumed that no information which the pupil had obtained from the accused was divulged to the prosecution. Nevertheless, this court held that it was impossible to say that in the circumstances justice had been seen to be done. Accordingly, the conviction was set aside. Likewise in R v Batt, summarised above, the reason why the Court of Appeal considered that it was generally undesirable for a husband or wife or other cohabiting partners to appear as advocates against each other in a contested criminal matter was because
“to do so may give rise to an apprehension, however unjustified that may be in any given case, such as the present, that the proper conduct of the case may have been in some way affected by that person or relationship.”
- Undoubtedly, those particular cases are to some extent affected by the special position of prosecuting counsel. Prosecuting counsel has additional obligations, for example to present his case with the aim of assisting the court to reach a true verdict and not just to win. However, this line of authority referred to above is not unique to the criminal law. Re L (summarised above) arose in care proceedings in the Family division. Wilson J pointed out that whereas civil litigation and criminal trials comprised a confined investigation of past events, the inquiry in care proceedings goes wider and involves an important investigation into all matters relevant to the future life of the child. In that inquiry the local authority is the arm of the state and has a role of crucial importance. The submissions on behalf of the local authority are likely to carry weight and respect. In Wilson J’s judgment, the local authority had to be seen to act impartially and there was a reasonable apprehension that its approach would be coloured by favour towards one party if the solicitor for that party was cohabiting with the solicitor for the local authority having charge of the proceedings. It was not necessary to investigate any aspect of the actual history of the proceedings. The cohabitation without more grounded the apprehension. In the circumstances, Wilson J considered that it was appropriate to make an order removing the solicitors for the local authority from the record.
- We, therefore, reject the submission of Mr Mortimore that the only circumstances in which the court can act to prevent an advocate from acting is where he has confidential information. The case law demonstrates that in exceptional circumstances an advocate can be prevented from acting even where he does not have such information.
- Where a party objects to an advocate representing his opponent, that party has no right to prevent the advocate from acting based on the Code of Conduct as the content and enforcement of that Code are not a matter for the court. However, the court is concerned with the duty of the advocate to the court and the integrity of the proceedings before it. The court has an inherent power to prevent abuse of its procedure and accordingly has the power to restrain an advocate from representing a party if it is satisfied that there is a real risk of his continued participation leading to a situation where the order made at trial would have to be set aside on appeal. The judge has to consider the facts of the particular case with care (see the words of Lord Steyn in the Man o’ War case cited above). However, it is not necessary for a party objecting to an advocate to show that unfairness will actually result. We accept Mr Jones’ submission that it may be difficult for the party objecting so to do. In many cases it will be sufficient that there is a reasonable lay apprehension that this is the case because as Lord Hewart CJ memorably said in R v Sussex Justices ex parte McCarthy  1 KB 256, it is important that justice should not only be done, but seen to be done. Accordingly, if the judge considers that the basis of objection is such as to lead to any order of the trial being set aside on an appeal, as in the Winston Smith case, he should accede to an order restraining an advocate from acting. But we stress that the judge must consider all the circumstances carefully. A connection, for instance, between counsel for one party and a witness on the other side may be an important factor where the evidence is of fact but, depending on the nature of the connection, it may be less important where the evidence is of an expert nature and the cross-examination is likely to be on questions of technical expertise. The judge should also take into account the type of case and the length of the hearing, and any special factor affecting the role of the advocate, for instance, if he is prosecuting counsel, counsel for a local authority in care proceedings or as a friend of the court.
- A judge should not too readily accede to an application by a party to remove the advocate for the other party. It is obvious that such an objection can be used for purely tactical reasons and will inevitably cause inconvenience and delay in the proceedings. The court must take into account that the other party has chosen to be represented by the counsel in question. Moreover, an advocate is subject to the cab-rank rule. If the court too willingly accedes to applications to remove advocates, it would encourage advocates to withdraw from cases voluntarily where it was not necessary for them so to do and the cab-rank rule would be undermined. We accept that the cab-rank rule is a salutory rule. It is an integral and long established element in our adversarial system. Down the centuries the cab-rank rule has been the way in which unpopular causes have been represented in court. When Erskine defended Tom Paine in 1792 he was widely criticised for so doing. His reply was:
“If an advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of Judge; nay, he assumes before the hour of judgment, and in proportion to his rank or reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions ... ”
- The particular presumption referred to by Erskine was the presumption of innocence, which is now enshrined in article 6.2 of the European Convention on Human Rights. Erskine was speaking about a criminal case, but his point applies with necessary modification also to a civil case.
- Moreover, in the field of apparent bias on the part of the tribunal, this court has warned against too ready disclosure of potential objections. Thus in Taylor v Lawrence  3 WLR 640, this court said:
“64. A further general comment which we would make is that judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair-minded and informed observer as raising the possibility of bias. If such a relationship is disclosed, it unnecessarily raises an implication that it could affect the judgment and the approach of the judge. If this is not the position, no purpose is served by mentioning the relationship. On the other hand, if the situation is one where a fair-minded and informed person might regard the judge as biased, it is important that disclosure should be made. If the position is borderline, disclosure should be made because then the judge can consider, having heard the submissions of the parties, whether or not he should withdraw. In other situations disclosure can unnecessarily undermine the litigant’s confidence in the judge.”
- That passage is relevant to the further question whether, if the advocate knows that a personal factor exists which might be regarded as affecting the conduct of the case but has concluded that he is not prevented by his own professional rules from acting, he should disclose the matter to the other side or the court. An advocate who is affected by a personal factor which there are reasonable grounds for concluding would prejudice the administration of justice in an individual case or result in a procedural irregularity, such as would lead to the order made at trial being set aside on appeal, should not act even if he has formed the view that he is not personally embarrassed. This follows from his duty to the Court. If, however, he considers he can act but the position can reasonably be regarded as open to objection, disclosure of the relevant facts should be made to the other side as soon as practicable and (unless that party duly accepts the position) to the court at the opening of the hearing. Disclosure of the matter in this way will enable any objection to be taken at an early stage. It is, as we have said, part of the duty of the parties to co-operate in procedural matters: see CPR 1.3. It follows from this rule that if there are reasonable grounds for an objection but the advocate proposes to continue to act, the other party should as we have indicated be informed as soon as practicable so as to prevent the possibility that a substantive hearing will have to be aborted. On the other hand, the obligation to make this disclosure to the other side only arises if the position can reasonably be regarded as open to objection. Moreover, if the other party has duly waived the objection there is unlikely to be any need to mention the matter to the court.
- If a party objects to the advocate for the other party, he should make that clear to the other party without delay. If it is necessary for the court to rule on the objection, the party taking the objection should make an application at the latest at the start of the hearing or (if later) as soon as the circumstances giving rise to the objection are known to him. If there is an interim hearing in the case, and the circumstances are known, the court should be informed of the objection at the interim hearing and invited to give directions as to when the objection should be heard. If there is no interim hearing it may in some cases be sensible for the party wishing to make the objection to make a separate application as soon as the circumstances become known to him in order to avoid the risk of an adjournment of the substantive hearing if the objection is sustained. In the same way, it may be sensible for the advocate to whom the objection relates to inform the court of the matters disclosed to the other side earlier than the start of the substantive hearing at which he proposes to act so that the court can consider the matter for itself at an early stage.
- It follows from the above that we accept that Mr Mortimore’s alternative submission that this was not an appropriate case for application of the test in Re Medicaments. As the judge himself pointed out, the role of the judge and the advocate are very different. An advocate, for instance, has no duty not to be partisan. The judge, on the other hand, must be independent and free from any actual or apparent bias. The personal factors affecting the advocate are relevant only because they prejudice, or may prejudice, the proper administration of justice.
- In the present case, it is difficult to see how the argument that Mr Marks was disqualified from acting was sustainable. While it is not for this court to enforce the Code of Conduct, there is no suggestion that Mr Marks did not properly apply the rules set out in the Code of Conduct or conscientiously consider the position in accordance with the best standards of the provision. Moreover, any information that he had was not of a confidential nature. No-one has suggested that his lines of cross-examination of Mr Skjevesland were other than such as might have been thought of by an experienced advocate without any such prior connection as Mr Marks had with Mrs Skjevesland, or that the factual basis was not such that competent counsel would not have asked his solicitors to investigate in any event. Moreover, there is no suggestion that Mr Skjevesland was inhibited from presenting any evidence to the court or prejudiced in his conduct of his case. Accordingly, we consider that the judge was right to dismiss the appeal, although for the reasons given above we do not consider that it was correct for him to apply the Re Medicaments test.
- Accordingly, we would dismiss this appeal.
Order: that the said order of the Honourable Mr Justice Lightman be affirmed and the said appeal be dismissed; that the appellant do pay the respondent the costs of the appeal, such costs to be treated as the Respondent's costs of the bankruptcy petition and to be subject to detailed assessment if not agreed.
(Order does not form part of the approved judgment)
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