Balancing duties in litigation

27 November 2018

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Executive summary

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.

For guidance on matters of conduct please refer to our guidance or contact our Professional ethics team.

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  1. In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2002
  2. Hansard, Lord Lucas, Column 1309, 2010
  3. Warning notice: holiday sickness claims, Solicitors Regulation Authority, 2017
  4. Sexual harassment in the workplace: fifth report of session 2017–2019, House of Commons Women and Equality Committee, 2018
  5. Written evidence from a member of the public, House of Commons Women and Equality Committee, 2018
  6. Oral evidence of Zelda Perkins, House of Commons Women and Equality Committee, 2018
  7. Warning notice: use of non-disclosure agreements, Solicitors Regulation Authority, 2018
  8. In the matter of Brian Miller and David Gore, Solicitors Disciplinary Tribunal, 2010
  9. LCJ uses Nightjack case to warn lawyers who mislead Court of “exemplary punishments”, Legal Futures, 2014
  10. In the matter of David McCarey Lancaster, Solicitors Disciplinary Tribunal, 2007
  11. This is known as “parallel construction”.
  12. Hundreds of cases dropped over evidence disclosure failings, BBC, 2018
  13. 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.
  14. See for example R v Rochford, [2010] 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), [2004] UKHL 48, p.54.
  16. Drug barons walk free as police hide evidence, Times, 2018
  17. See for example Excalibur Ventures LLC v Texas Keystone Inc and others, [2013] EWHC 4278 (Comm), 2013
  18. Dealing with claims for mis-sold payment protection insurance, Solicitors Regulation Authority, 2012
  19. FCA to consult on mortgage payment shortfall remediation guidance, Financial Conduct Authority, 2016