Balancing duties in litigation
27 November 2018
This report updates our previous risk paper on balancing duties in litigation, published in March 2015. It discusses the differing duties owed by solicitors in litigation and examines the ways in which misconduct can arise. This report is a useful, up-to-date resource for law firms and solicitors, with examples of the challenges faced when balancing these duties.
What has emerged since our first paper is the continued conflict between the principle of acting in the best interests of each client and other, often higher-priority principles, such as acting with integrity or upholding the rule of law and proper administration of justice. This has been particularly relevant for those that write non-disclosure agreements (NDAs) in employment issues. NDAs have a legitimate role to play, but it has become clear that some might include clauses that seek to prevent lawful disclosure of issues such as discrimination, harassment or even sexual abuse. We published a warning notice in March to remind the profession of its responsibilities in this area.
The emerging risk of progressing holiday sickness claims that turn out to be bogus also features in this paper. The number of claims being made has started to decline, but there is no room for complacency.
We have also seen a steady increase in reports of solicitors misleading the courts. These have risen more than 50 percent in the last five years, which might be because of better reporting.
What has not changed is the fact that although solicitors must advance their clients' cases, they are not ’hired guns’ whose only duty is to that client. They also owe duties to the courts, third parties and to the public interest.
Our paper looks at improper or abusive litigation, which includes:
- predatory litigation
- predatory litigation involving clients
- abuse of the process
- taking unfair advantage
- misleading the court
- excessive or aggressive litigation
- conducting knowingly unwinnable cases.
There will always be complex situations where maintaining the correct balance between duties is not simple and all matters must of course be decided on the facts. It is important for solicitors to recognise their wider duties and not to rationalise misconduct on the mistaken basis that their only duty is to their client. Those who cross the line into misleading the courts or abusing the litigation process should have no doubt that such conduct can attract serious consequences.
Managing work when duties might conflict is an essential element of legal professional ethics. Failure to act with integrity or ethics is a priority risk in our Risk Outlook 2018/2019 and has the potential to significantly undermine the proper administration of justice and public confidence in legal services.
Litigation is a reserved legal activity. It is a highly visible and very important aspect of legal practice, as it affects people’s lives, livelihoods and rights. The integrity of our justice system is a reason for its status as an international forum of choice.
Solicitors are officers of the court and their overriding duty is to the rule of law and the administration of justice. Nowhere is that more apparent than when conducting litigation.
Improper or abusive litigation was highlighted as an issue in the Risk Outlook 2018/2019, within the Priority Risk of the lack of integrity and ethics.
By showing the ways in which the risk of improper or abusive litigation tends to occur, this report discusses how individuals and firms must balance the interests of their client with their duties to the court, third parties and the wider public interest.
Solicitors owe duties to multiple parties. In some cases, acting to advance a client's interest has led solicitors to disregard their wider duties. Clear-cut cases of this kind are relatively rare, but we have seen cases of solicitors taking unfair advantage of an opponent, misleading the court or taking actions that lead to grossly disproportionate costs. When this happens, public confidence in the legal system, which underpins the rule of law, is put at risk. And individuals, many of whom might be vulnerable, could be harmed.
We also sometimes see unethical behaviour that relates not to the pursuit of the client's interest, but to the pursuit of the solicitor's interest at the expense of the client. For example, causing clients to incur unnecessary costs by not being clear about the risks of pursuing a litigation claim or by not making it clear that a solicitor is not needed for some types of claims. Again, these issues have the potential to cause serious harm to individuals and to confidence in the legal system.
Integrity and ethics in litigation
Although solicitors must advance their clients' cases in accordance with the client’s instructions and interests, they are not ‘hired guns’ whose only duty is to their client. They also owe duties to the courts, third parties and to the public interest. Breach of those duties can give rise, for example, to wasted costs orders or to findings of misconduct.
The SRA Principles 2011 set out the key ethical requirements on firms we regulate and the individuals working in those firms. Where this paper refers to specific principles, codes or rules, it refers to those in force at the time of publication. Although we will be introducing new principles, codes and rules from 2019 onwards, these will not change the basic ethical duties discussed here.
The principles include the duties:
- to act in the best interests of each client
- not to allow independence to be compromised
- to uphold the rule of law and the proper administration of justice.
The notes to the principles explain that it is the public interest - especially the public interest in the proper administration of justice - that should prevail where these duties conflict. However, it is not always straightforward to navigate this. Solicitors must use their professional judgment and experience to recognise any conflict and find the correct course of action for the specific situation.
Balancing duties in litigation
The following examples of reports to us show the difficulties some solicitors have experienced in balancing the duties set out above. Whether difficulties are driven by a lack of integrity, or a failure to balance duties effectively will always depend on the facts of each case.
Many instances involve the solicitor improperly prioritising the client's interest over their other duties:
- Predatory litigation against third parties: the solicitor, in the interest of the client, threatens litigation to obtain settlement, often from several opponents. The cases sometimes have no real merit, but the cost of settlement is less than the financial, emotional or reputational cost of fighting the claim.
- Abuse of the litigation process: the solicitor uses the courts or general litigation process for purposes that are not directly connected to resolving a specific dispute, for example by incurring unmanageable costs for a commercial rival of a client.
- Taking unfair advantage of an unrepresented third party: for example, by exploiting another party's procedural errors or their lack of legal knowledge in certain circumstances. This includes using overbearing techniques such as sending threatening or legalistic letters directly to people, including those who might be vulnerable.
- Misleading the court: the solicitor knowingly or recklessly gives false information to the court or is complicit in allowing it to be given.
- Excessive or aggressive litigation: the solicitor fails to consider their other duties when following a client's wish to pursue aggressive and, in particular, speculative litigation. This includes repeatedly litigating the same point and using overbearing techniques. One commercial case involved one side accusing the other of criminal conduct without any cause. The judge described the case as having been “pursued as if it were an act of war”.
We have also seen instances where the solicitor fails to act in their client's interest:
- Predatory litigation: where clients are encouraged to proceed with litigation where there is little or no legal merit, or where litigation is not actually required. For example, by touting for claimants in government-backed compensation schemes that do not need the claimant to have legal advice, such as payment protection insurance (PPI) compensation, or the mineworkers’ compensation scheme.
- Taking on weak or unwinnable cases, where a solicitor accepts instructions without making the potential costs and risks clear to the client. The most harmful examples often also include the predatory litigation described above, which can become widespread and affect very large numbers of individuals.
Scope of this risk
Most of the issues described in this reportoccur infrequently, though some can becomewidespread, such as PPI claims.
One way we can monitor the scale of this riskis by analysing the number and type of mattersreported to us. Reports are often made to usby courts, clients and other parties to litigation.For example, reports of solicitors misleading thecourts have broadly increased in recent years,which might be because of better reporting.
Maintaining the high ethical standards that thepublic is entitled to expect is a critical task forthe regulatory system. In addition to takingaction when things go wrong, we also take stepsto embed the necessary standards in trainingand in practice.
Our reform of legal education and training,including the introduction of the SolicitorsQualifying Examination (SQE), is aimed atsupporting this. Our Competence Statementcaptures the key activities required of a solicitor,helping to assure the maintenance of standards.We are also reviewing how to maintainstandards in advocacy.
Reports of misleading a court
The solicitor's duties in litigation are clearlyset out in the Legal Services Act 2007 (LSA),which makes clear that legal obligations extendbeyond those owed to the client.
The five professional principles in the LSAare that:
- authorised persons should act withindependence and integrity
- authorised persons should maintainproper standards of work
- authorised persons should act in thebest interests of their clients
- persons who exercise before any courta right of audience, or conduct litigationin relation to proceedings in any court,by virtue of being authorised personsshould comply with their duty to thecourt to act with independence in theinterests of justice
- the affairs of clients should be kept confidential
Principles (a) and (d) emphasise the importanceof the independence of lawyers, including their"duty to the court to act with independence inthe interests of justice"
Independence, in this context, clearly includesindependence from the client. This has been setout clearly by the Solicitors Disciplinary Tribunal(SDT), as follows:
"A solicitor is independent of his client andhaving regard to his wider responsibilitiesand the need to maintain the profession'sreputation, [they] must and should on occasionbe prepared to say to [their] client 'What youseek to do may be legal but I am not preparedto help you do it'."1
It is essential to the public interest in justice, inan adversarial legal system, that solicitors mustbe able to take cases forward fearlessly andeffectively. There are limits to this, however,including that:
- solicitors must bring and defend caseshonestly
- clients and sometimes solicitors have to signstatements of truth
- it is improper to mislead the court or otherparties
- the prosecution must disclose documentsthat might damage a client's case if theyare relevant to the case, unless these areprivileged.
If a solicitor knows that a client's case is nothonestly brought, they must not act. Wherethere is suspicion or the context is high-risk, thesolicitor's duty to the administration of justice,the court and the public interest demand properchecks of the instructions and evidence.
The Handbook and the solicitor’s duties
These issues are reflected in the SRA Handbook.We are introducing new principles, codes andrules from 2019 onwards, however these willnot change the core ethical duties of a solicitor.The discussion below covers the way thoseduties are set out in the Handbook at the timeof this report’s publication.
The primary duties of the solicitor to variousparties are clear and are set out in ourprinciples. The outcomes that firms andregulated individuals must achieve reflect theimportance of steering the course betweenthese principles in particular:
- Principle 1 requires solicitors to uphold therule of law and the proper administration ofjustice.
- Principle 2 sets out that solicitors must actwith integrity.
- Principle 3 requires solicitors not to allowtheir independence to be compromised.
- Principle 4 sets out the obligation of solicitorsto act in the best interests of the client.
- Principle 7 requires solicitors to act inaccordance with their legal and regulatoryobligations.
Outcome 1.2 of our Code of Conduct 2011confirms that solicitors owe duties beyond thoseto their clients and that those duties can limittheir right to pursue the client’s case howeverthe client wishes. It states, "you provide servicesto your clients in a manner which protects theirinterests in their matter, subject to the properadministration of justice". Outcome 1.3 clarifiesthis by requiring a solicitor to comply with thelaw and the Code of Conduct when decidingwhether to act or to cease acting.
The solicitor and the court
The outcomes regarding duties to the court areas follows:
- Outcome 5.1 bars solicitors fromintentionally, knowingly or recklesslydeceiving the court.
- Outcome 5.2 requires that solicitors are notcomplicit with another's deception of thecourt.
Indicative behaviour 5.5 describes theimplication of this. If the solicitor knows thattheir client is committing perjury or otherwisemisleading the court in any matter, then theyshould cease to act. The only exception is ifthe client agrees to inform the court of thedeception.
Some cases of improper or abusive litigationcan have severe consequences and can affectlarge numbers of people. However, these donot reflect widespread issues of this nature.Conflicts of duties can be highly specific to thecase in which they occur.
Where these cases arise in civil litigation, mostexamples relate to the conduct of the claimant’ssolicitor. This reflects the fact that the claimanthas more choice over whether to enter intolitigation than the respondent does. And somebreaches can only occur in relation to theside that is threatening proceedings. Ethicalissues in court proceedings, however, arenot exclusive to the claimant’s side. Solicitorsacting for those defending claims or challengesalso need to make sure that they act withintegrity and comply with their other duties.When dealing with those who wish to defenda hopeless case, for example, solicitors mustbe as careful as those acting for claimants whowish to start one. Either party could seek tomislead the court, either directly or, in the caseof the prosecution, failing to disclose importantevidence, precedents or information.
Although each case will be dependent uponspecific circumstances and facts, we have foundthere are broadly two categories of improper orabusive litigation:
- where the duty to the court, third parties orto the public interest has been breached inthe name of another interest, usually that ofthe client
- where it is the duty to the client that has beenbreached in the interests of another party,usually the solicitor.
We now turn to specific examples within each ofthese categories.
Breach of duties to others
Predatory litigation against third parties
Predatory litigation generally involves solicitorsbringing large numbers of claims with limitedinvestigation of their individual merits or of theunderlying legal background. The idea is usuallythat the cost in time and money of proceedings,or the threat of public embarrassment, will leadto opponents settling cases that might have noreal merit.
For example, a law firm might send letters ofclaim to large numbers of individuals alleging,on limited evidence, that they have breachedthe intellectual property of their client. Therequested settlement is usually significantlylower than the potential cost of fighting theclaim, which encourages people to settle theclaim before it goes to court and without firstseeking their own legal advice.
In some of these cases, there is little evidencethat there was an intention to bring the caseto court. It is possible that a court would notmake an award for the claim if it did proceed.Although the opponents could fight the casein court, the cost of reaching that stage, andthe fear of costs, often encourages settlement.There is often a large asymmetry of knowledgeand legal understanding, for example betweenthe defendant and the solicitor, which favoursthe solicitor's client.
There have been cases where the letter ofclaim included the threat to reveal publiclyembarrassinginformation if the opponent failedto settle. Such approaches have been describedin the House of Lords as ‘blackmail’2 and couldamount to a failure to act with integrity.
In other cases, mass claims are made againstone defendant, where a law firm gets manypeople to sign up to a claim. Group actionsin themselves can be legitimate, for examplewhere there is a Group Litigation Order orwhere a court has agreed to consolidate claims.However, in some cases the firm carefullyselects the lead case but does little checks onmost of the other claims. The volume of claimscan lead to higher costs and damages on thedefendant leading to settlement.
Spotlight on holiday sickness claims
Between 2013 and 2017, there was a fivefoldincrease in claims against hotels for gastricillness suffered on holiday.
We received numerous reports of caseswhere claims had been dismissed asdishonest, leading to costs ordersagainst claimants and including criminalprosecutions. Our concern was that firmswere accepting cases from introducers whohad recruited claimants by some form ofcold calling, and that the firms were notinvestigating the merits of cases beforeraising them with defendants and seekingsettlements. In some of these cases, thefirms were seeking unreasonable costs for alimited amount of work.
While in many of these cases firms had notinvestigated the evidence available, in somethe firms had actively advised their clientsto destroy evidence which might harm theircase.
In September 2017, we warned solicitorsabout the signs that holiday sickness claimsmight not be genuine. Firms that do nottake account of these signs and conductquestionable cases may face regulatoryaction.3
Abuse of the litigation process
This involves the use or threat of litigation forreasons that are not connected to resolvinggenuine disputes or advancing legal rights.Purposes can include harming commercialcompetitors, silencing criticism or stallinganother process. The aim is to use the threat ofcost or delay to achieve these outcomes.
Unlike predatory litigation, approaches are notusually made to many people and obtainingfinancial redress for the client is not the goal.For example, it could be to avoid deportation.
Whether or not a claim is abusive is oftendetermined by the proportionality of thesolicitor’s actions on behalf of their client, andultimately by the merits of their claim shouldit reach a court. We rely on the courts torecognise this misconduct and report it to us.
Case example: Immigration solicitor struck off for abuse of the appeals process
The SDT struck a solicitor off the roll forabusing the court system by bringinghopeless appeals to immigration decisions.The solicitor had made a practice of bringinglast-minute challenges to removal decisions.In one of these challenges, they left outimportant information which would havemeant the submission would have been rejected
The Immigration Tribunal found that theappeals had no legal merit and that thesolicitor had designed them to exploit a ‘’weakspot’ in the judicial system to delay deportationswhere there was no justification.
The SDT found that the solicitor's actions hadshown a lack of integrity. The solicitor appealed,but the High Court upheld the decision of theTribunal. It found that the solicitor's actionshad been an abuse of process and that it wassuitable that deterrence was a considerationwhen making their decision.
Spotlight on non-disclosure agreements and harassment
The role of solicitors in drafting NDAs inrelation to allegations of harassment hasreceived public and political attention.4This attention will continue. There are legitimate uses for these agreements, but solicitors must not threaten consequences that cannot legallybe enforced. In particular, solicitors must not seek to prevent anyone from reporting offences or co-operating with a criminal investigation and other legal processes,including influencing the evidence they give. They must also not prevent someone whohas signed an NDA from keeping a copy of the agreement.
There have also been allegations ofemployers threatening to give a hostilereference or otherwise to penalise avictim if they do not agree to sign anNDA.5 Other victims have reported beinggiven the impression by the solicitor thatthey would be imprisoned if they did notcomply with the NDA.6 People that haveexperienced some form of harassmentmight be vulnerable, in part because of theharassment itself. Solicitors need to considerthis when communicating with them andwhen drafting an NDA.
It might be in the interests of the client toavoid publicity for allegations, but the dutyto the client does not override the solicitor’sduties to uphold the proper administrationof justice, act independently, and to behavein a way that maintains public trust in theprovision of legal services.
A solicitor may face disciplinary action ifthey:
- are complicit in unreasonable pressureto take unfair advantage of a victim or anunrepresented person on the other side
- are effectively complicit in seeking toconceal criminal activity.
Such conduct might also involve seriouscriminal offences. Attempts to discourageor limit disclosure of evidence to criminal orcivil processes can amount to perverting thecourse of justice.
Our warning notice on NDAs provides moredetail on the issues involved.7
We take inappropriate behaviour in the workplace very seriously. For example, we have asked the largest firms that we regulate about how they prevent, and respond to allegations of, sexual harassment in the workplace. We have asked them to tell us about their staff training and how they support a person making an allegation of sexual harassment. We will share examples of good and poor practice.
Taking unfair advantage
In advancing a client's interests, solicitorsmust be careful not to take unfair advantageof the opponent or other third parties suchas witnesses. Special care is needed wherethe opponent is unrepresented or vulnerable.Solicitors will need to consider this duty in allcases, but particularly when faced with a partyshowing a simple lack of legal knowledge orobvious procedural misunderstandings.
There can be a fine line between properdefence of the client's interest and taking unfairadvantage of others, usually highlighted by anyform of deceit or misinformation.
Indicative behaviour 11.7 in the Code ofConduct highlights that taking unfair advantageof an unrepresented party's lack of legalknowledge shows a failure to comply with dutiesto others. Special care should be taken whencorresponding with lay or vulnerable opponentsnot to take advantage or use language thatmight intimidate them.8 Regulatory breachescan arise from any oppressive or domineeringtactics, regardless of whether misleadinginformation is included. These tactics include:
- overbearing threats of claims or pooroutcomes
- legalistic letters to minors or others whomight be vulnerable
- threats of litigation where no legal claimarises
- claims of highly exaggerated adverseconsequences.
Other examples include the use by in-housesolicitors of trading styles that suggest thatthey are an independent firm, for example fordebt collection work. Although trading stylesthemselves are not prohibited, it is importantthat they are not misleading. Outcome 8.1makes this clear and we have warned solicitorsabout the publicity and information given tothird parties.
Misleading the court
Solicitors who are complicit in their clientmisleading the court, or who do so themselves,risk serious consequences. The courts havemade it very clear that they regard this as "oneof the most serious offences that an advocate orlitigator can commit".9
- Knowingly helping a criminal client to createa false alibi, for which solicitors have beenstruck off.10
- Attempting to convince expert witnessesto alter their reports to the benefit of thesolicitor’s client
- Knowing that a client obtained informationfor use in their case by illegal means, buthelping the client provide a false explanationof where the evidence came from.11
It is also possible for prosecuting solicitorsto mislead the court by failing to discloseimportant evidence or precedents. In 2017,916 criminal cases failed due to failures by thepolice or prosecution to disclose evidence thatwould have assisted the defence case, a numberthat has risen by 70 percent since 2014–15.12
Criminal defence work can involve a significantrisk of conflict between duties where thesolicitor knows or reasonably suspects thattheir client is in fact guilty, but the client wishesto plead not guilty. It is the defendant's rightto require the state to prove its case.13 It is inthe public interest that the state be required todo this to the necessary standard before it canmake a finding against a person. Even wherea defendant has informed their solicitor thatthey are guilty, the client cannot be preventedfrom pleading not guilty and their discussionswith the solicitor are covered by the dutyof confidentiality and by legal professionalprivilege.14
Solicitors must still, however, take the greatestcare not to mislead the court or to permit theirclient to do so. If their client continues to do sodespite advice, the solicitor should cease to act.
Reports made to us of solicitors misleading thecourt have broadly increased in recent years. Inmany instances it is the court that reports thismisconduct to us.
Case example: Misleading the court in hearing loss claims
A senior partner and solicitor employeewere struck off by the SDT after bringinglarge numbers of noise-induced hearing lossclaims which were mishandled and thencancelled.15
The firm had:
- submitted claims after the final day forservice
- failed to obtain proper medical evidence
- misled the other side.
The partner had tried to conceal the fact thattheir own failings had led to the cases beingstruck out, making misleading statementsto the court. These included stating that adelayed report was because experts failedto respond, rather than because of the firm’sown failures. They also changed the client’sstatement that they had been unable towear hearing protection provided by theiremployer into a statement that the clientcould not recall any protection having beenprovided at all.
Misleading the court is a serious matterand those who do so can expect seriousconsequences.
Case example: Misleading the court by failing to disclose evidence
A Crown Court found that the prosecutionin a criminal trial had materially misled it byfailing to disclose evidence that supportedthe defence.16
The case against the defendants was thatthey had been involved in an organisedcrime network supplying illegal drugs. Theprosecution alleged that the defendantshad met with the head of the network inprison and had agreed to participate in theconspiracy. During the trial, however, thedefence learned that the police had secretlyrecorded the meeting. They obtained thetape, which showed that the parties had notdiscussed any criminal activity.
The court called the prosecuting barristerto account for why the prosecution had notdisclosed this evidence. The judge statedthat the prosecution had shown a disregardfor their duty of disclosure that couldundermine public confidence and had led toan unfair trial.
Excessive or aggressive litigation
Excessive litigation takes up court time andcreates disproportionate costs.
The courts have made clear their disapproval ofwhat they consider to be excessive litigation.17For example, they have criticised the conductof commercial cases that occupy court timeto the detriment of other cases. Such casescan involve disproportionate valuations of theclaim, wide-ranging allegations of improprietyand inappropriate volumes and tone ofcorrespondence. The courts often accept thatthe case has been pursued in accordancewith the client's instructions. Solicitors areresponsible for the strategy on their client’scase and cannot disclaim responsibility on thebasis of acting on instructions.
Although solicitors are not routinely obliged tochallenge their own client's case, they must notadvance arguments that they do not considerto be properly arguable and they must haveregard to the proper administration of justice.The courts noted that where litigation that isdisproportionate to the facts, solicitors’ clientsare likely to be ordered to pay costs calculatedon the indemnity basis rather than the standardbasis.
Solicitors should also be aware of the risks ofgoing beyond their instructions in pursuinglitigation. Should a client wish to impose limitson the means employed towards their goals,whether because of their own personal valuesor their risk calculations, then their solicitorshould respect this.
Breach of duty to the client
A common motive in these cases is thesolicitor's personal benefit.
These are schemes, that can becomewidespread, where clients can incurunnecessary legal costs.
The most visible examples are fromgovernmental, statutory or regulatorycompensation schemes, where litigation, orin some cases any legal professional, wasnot required for most claimants. Issues haveincluded solicitors charging additional costs totheir client when their fees were already beingmet by a compensation scheme, or not advisingthe client that they were entitled to claimdirectly.
Such schemes can become widespread. Whenthey do, they are extremely visible, and riskharm to public confidence in the legal system.We have issued guidance about such schemes,for example we have warned solicitors aboutclaims for mis-sold PPI.18
Case example: Touting for claims where no action was required
We have seen a pattern of online toutingfor clients to bring legal claims relating tomortgage interest issues. These relatedto a problem with miscalculated arrears.The Financial Conduct Authority (FCA) wasaware of the issue and had identified thelenders and 750,000 borrowers involved.19It had already instructed lenders to makerefunds directly and without waiting to becontacted. In this instance, there was noneed for anyone affected to instruct a lawyeror, indeed, for borrowers to take any actionat all.
Conducting knowingly unwinnable cases
This involves solicitors taking on weak or unwinnable cases, where a solicitor accepts instructions without making the potential costs and risks clear to the client. The use of conditional or contingency fee agreements can mitigate this risk because the solicitor has a financial stake in the outcome, but there is evidence of misuse of such agreements.
Just as an unethical solicitor can agree to bring an unwinnable case that should not have been brought, they can agree to defend one that should have settled. The client, of course, is entitled to advance their rights and to seek to resist claims brought against them. The solicitor is, however, obliged to:
- point out what can actually be achieved
- advise the client on the proportionality of different courses of action in terms of costs
- remember that their duty is not only to the client.
It is common for conditional fee agreements to include clauses that allow the solicitor to cancel the agreement subject to certain conditions. An example of probable misuse of such a clause involved a solicitor ending a conditional fee agreement and billing the client, citing reasons that were already known to the solicitor from the outset. The result was that the client had gained no benefit but incurred expense and a loss of time.
Litigation is an important aspect of legalpractice, as it affects people’s lives, livelihoodsand rights. Solicitors are officers of the court.Poor conduct or unethical behaviour in litigationcan threaten the integrity of the justice system,as well as potentially causing harm to people.Such conduct is a priority risk in the RiskOutlook 2018/2019.
This report has highlighted some of the tensionsbetween the differing duties owed whenconducting litigation. Managing these dutiescorrectly is a critical task for solicitors engagedin litigation.
Many of the examples in this reportdemonstrate the challenges solicitors face ona case-by-case basis. We have also discussedpredatory litigation schemes and other largescalebreaches that can become widespread andcause harm to many people, as well as NDAswhere those who have suffered discriminationmight be vulnerable.
Those who cross the line into misleading thecourts or abusing the litigation process shouldhave no doubt that such conduct can lead toserious consequences.
There will always be complex situations wheremaintaining the correct balance between dutiesis not simple and all matters must of coursebe decided on the facts. It is important forsolicitors to recognise their wider duties and notto rationalise misconduct on the mistaken basisthat their only duty is to their client.
In maintaining the balance between all theirduties - to clients, the court, third parties and tothe public interest - solicitors' best guides aretheir integrity and independence.
- In the matter of Paul Francis Simms,Solicitors Disciplinary Tribunal, 2002
- Hansard, Lord Lucas, Column 1309, 2010
- Warning notice: holiday sickness claims, Solicitors Regulation Authority, 2017
- Sexual harassment in the workplace: fifth report of session 2017–2019, House of Commons Women and Equality Committee, 2018
- Written evidence from a member of the public, House of Commons Women and Equality Committee, 2018
- Oral evidence of Zelda Perkins, House of Commons Women and Equality Committee, 2018
- Warning notice: use of non-disclosure agreements, Solicitors Regulation Authority, 2018
- In the matter of Brian Miller and David Gore, Solicitors Disciplinary Tribunal, 2010
- LCJ uses Nightjack case to warn lawyers who mislead Court of “exemplary punishments”, Legal Futures, 2014
- In the matter of David McCarey Lancaster, Solicitors Disciplinary Tribunal, 2007
- This is known as “parallel construction”.
- Hundreds of cases dropped over evidence disclosure failings, BBC, 2018
- The foundations of this right are the presumption of innocence, the right to silence and the privilege against self-incrimination. See the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art. 6.
- See for example R v Rochford,  EWCA Crim 1928, p.21 and 24, and on the public interest in the absolute nature of legal advice and litigation privilege see Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants) (2004),  UKHL 48, p.54.
- Drug barons walk free as police hide evidence, Times, 2018
- See for example Excalibur Ventures LLC v Texas Keystone Inc and others,  EWHC 4278 (Comm), 2013
- Dealing with claims for missold payment protection insurance, Solicitors Regulation Authority, 2012
- FCA to consult on mortgage payment shortfall remediation guidance, Financial Conduct Authority, 2016