DISPUTE RESOLUTION – PCR ISSUES
CIVIL PCR
You are acting for a Defendant company in the claim brought by a Claimant. Shortly
before the deadline for the exchange of witness statements you receive an email from the
Claimant’s solicitors. You note that it begins “Dear [C’s name]” and states that it attached
a copy of an opinion from a barrister on the merits of the claim.
You ask your supervising solicitor if you should open the attachment and read the
barrister’s opinion. She tells you to research the answer and meet with her later to discuss
the arguments for and against reading it and your own conclusion.
FOR AGAINST
• Act in best interests of client (Principle 7) • Integrity (Principle 5)
® Helpful to read opponent’s strategy ® Know you weren’t meant to
read it
• Need to disclose (para 6.4)
BUT exception (6.4(d)) - where doc is • Uphold rule of law,
privileged and mistakenly received, no administration of justice
obligation to disclose (Principle 1)
When there is a clash of principles – should uphold the proper administration of
justice and rule of law (Principle 1)
What to do?
n Delete email – let the other side know they’ve sent it in error and that you’ve
deleted it (in new email thread) ASAP
n If it was a letter received in post, would send it back
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, CRIMINAL PCR
OFFERING TO SPEAK TO COMPLAINANT
A few days before trial, you receive a phone call from your client. He tells you that he has
a friend who knows the complainant. His friend understands that Piart is now having
second thoughts about continuing with his complaint and testifying for the prosecution.
Your client’s friend has offered to speak to the complainant on his behalf, to encourage
him to drop his complaint.
In light of this information about your client’s friend, what advice should you now give to
Nathan Duggan in relation to this?
Perverting the course of justice
Risk of making defence weaker if threatening the victim
Principle 7 of code – best interests of client
Para 1.4 – cannot be complicit with misleading the court
Have to cease to act but follow ongoing duty of confidentiality under 6.3
ADMISSION OF GUILT AFTER TRIAL
Assume for the purpose of this Task that you represent Nathan Duggan. Following a trial,
Nathan is acquitted. Nathan approaches you outside court and says: “Thanks for getting me
off, that jerk Piart deserved a fat lip, so what if he didn’t throw a punch at me first, he was
asking for it being that drunk. Next time I’m in trouble I’ll definitely ask for you again”.
Is there anything that you should now do in light of this information?
Don’t do anything – maintain ongoing duty of confidentiatlity para 6.3
Make a note on his file to make yourself aware in future if he wants your representation again.
Duty not to mislead court only applies if you know it’s happening – once trial is over you won’t
be in court again on his matter so it’s too late
Should client lie to make alibi stronger?
No! Lying alibi could be charged with perverting course of justice – discredits client’s
evidence.
Principle 7 – breached; para 1.4 – misleading court.
Decline to act if they insist.
Conduct
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, CONDUCT ISSUES AT CRIMINAL TRIAL:
Scenario Action
® Advise the client NOT TO DO SO.
If your client suggests Þ Although influencing the complainant would:
influencing the o Be in your client’s best interests in compliance with Principle 7
complainant to make Þ BUT: You have:
them drop the case o A duty to act with integrity under Principle 5, and
o A duty to uphold the Rule of Law and proper administration of justice under
Principle 1.
Þ Where two principles conflict, the Code provides that the one which takes
precedence is the one which best serves the public interest in the particular
circumstances, “especially the public interest in the proper administration of justice”.
ð In light of this, the client should be advised not to influence the complainant.
Þ Notwithstanding any breaches of the code, the client may be guilty of perverting the
course of justice or seriously damaging his credibility when comes to trial.
ð If the client insists, we must cease to act for the client.
Þ To otherwise act would be a breach of para 1.4, which provide that you have a duty
not to mislead the court or be complicit in anyone else misleading the court.
Þ Para 2.2 also indicates that you have not achieved the Outcomes of the Code if you
generate false evidence or seek to persuade a witness to change their evidence.
® Do nothing.
If your client informs Þ Although you have a duty under:
you he is guilty after he o Principle 1 to uphold the Rule of Law and proper administration of justice; and
has been acquitted o Principle 5 to act with integrity
ð because court proceedings have completed, there is no danger of the solicitor
misleading the court which would otherwise be a breach of para 1.4 (provides
that you have a duty not to mislead the court or be complicit in anyone else
misleading the court) – no longer act for him
Þ The solicitor does, however, owe his client an ongoing duty of confidentiality under
para 6.3 which lasts beyond the end of a retainer.
® If did before
Þ Although influencing the complainant would:
o Be in your client’s best interests in compliance with Principle 7
Þ BUT: You have:
o A duty to act with integrity under Principle 5, and
o A duty to uphold the Rule of Law and proper administration of justice under
Principle 1.
Þ Where two principles conflict, the Code provides that the one which takes
precedence is the one which best serves the public interest in the particular
circumstances, “especially the public interest in the proper administration of justice”.
ð In light of this, the client should be advised to plead guilty
Þ To otherwise act would be a breach of para 1.4, which provides that you have a duty
not to mislead the court or be complicit in anyone misleading the court.
ð Para 2.5 – Do not place yourself in contempt of court
ð Rrefuse to act when become aware misled court
ð Make note in file about client for future reference
CONDUCT ISSUES WHEN ADVISING A CLIENT WHO IS A SUSPECTED CRIMINAL:
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, If the client ® If the client intends to give evidence to the police or at court which is false e.g. if
intends to they admit they are guilty of the offence to the solicitor, but intend to deny it in
interview…
intentionally û the solicitor must cease to act for the client unless they agree not to do this.
mislead the Þ Firstly, Principle 7: you must “act in the best interests of each client”- keep
police/court quiet
Þ However, Principle 1 and Principle 2 will take precedence per SRA
Standards and Regulations:
“Should the Principles come into conflict, those which safeguard the wider
public interest (such as the rule of law (Principle 1) and public confidence
in a trustworthy solicitors' profession and a safe and effective market for
regulated legal services (Principle 2)) take precedence over an individual
client’s interests. You should, where relevant, inform your client of the
circumstances in which your duty to the Court and other professional
obligations will outweigh your duty to them.”
Þ Para 1.4: You must not mislead or attempt to mislead the court or clients,
by own acts or omissions, or allowing or being complicit in acts or
omissions of others (including your client).
´ Thus you cannot continue to act for a client who does this.
ð It is appropriate to advise the client against this and remind them
that they will receive credit for co-operating with the police.
§ You do not tell the police or the court the reasons why –
para 6.3: duty of confidentiality
“Withdrawing for professional reasons”
® You can, however, attend an interview if the client admits their guilt and intends
to give a “no comment” response, as this will not involve the client providing
misleading information.
ü You can continue to act for such a client.
® Ordinarily if you suspect that your client’s defence is fabricated, but the client
maintains the truthfulness of this, it is best not to risk breaching your overriding
duty not to deceive or knowingly mislead the court by placing this defence before
the court.
û You should cease to act. You do not tell the police or the court the reasons
why – para 6.3
® A solicitor should not act for a client who, to the knowledge of the solicitor,
provides the court with a false name, address or date of birth.
û You should cease to act. You do not tell the police or the court the reasons
why - para 6.3
® Where an inaccurate or incomplete list of the defendant’s previous convictions is
provided to the court, the defendant should be warned of the dangers of
misleading the court and the defence solicitor should decline to comment on the
accuracy of the list.
û You should cease to act if client indicates they will pretend list is accurate
® If a client insists on pleading guilty even though his instructions indicate he may
have a defence to the charge he faces
ü You can continue to act for such a client. (advise them facts constituting a
defence cannot be relied upon in mitigation)
Conflicts of ® Conflict issues often arise where a solicitor is asked to advise two (or more)
interest individuals who are jointly suspected of having committed an offence.
Þ If a suspect’s account suggests a conflict (e.g. the suspect denies guilt and
accuses the other of committing the offence), the solicitor should:
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, û Decline to act for/see the second suspect – tell client why and of
confidentiality continuing
ü Inform the police that he should receive separate legal advice.
§ Acting for both suspects would be a breach of para 6.2- there would
be a client conflict, unless substantially common interest and clients
competing for same objective – 6.2(a) and 6.2(b)
® If acting for two clients where a conflict isn’t immediately apparent, be mindful of:
Þ The risk of potential conflicts e.g. if the case for mitigation for one client is
that they played a minor role in the offence, and that the other client played a
larger role, this would bring them into conflict.
® If the conflict does not emerge until the solicitor has questioned BOTH suspects, he
should decline to act for both. Be mindful that you would only be able to act for one
of the suspects if you could ensure your duty of confidentiality to the other suspect
under para 6.3 is not at risk. This is unlikely to be the case.
® ULTIMATELY, it is decision of solicitor alone as to whether a conflict exists and not
that of the police (Code C, Notes for Guidance, para 6G)
Disclosure ® A solicitor representing a defendant has no duty to inform the prosecution or the
court of any evidence or witnesses that would prejudice the defendant’s case.
(treat third party requests with extreme caution – act in client’s best interests)
® A solicitor should only disclose information he has been given by another client if:
1. Obtained client’s written consent to disclose;
2. Both clients putting forward same defence; AND
3. In client’s best interests to disclose
à Needs to avoid enabling defence to conspire through him to jointly fabricate a
defence
(check both accounts first)
à If stories inconsistent, withdraw from case
® Legal professional privilege exists in relation to all communications between the
client and his solicitor if the purpose of the communication is giving or receiving
legal advice. Can extend to third party privilege if communication is in contemplation
of anticipated or pending proceedings.
HOW TO ® Explain to client why no longer able to represent them
WITHDRAW ® Tell client they are entitled to free legal advice from another solicitor/duty solicitor
® Tell client of ongoing confidentiality, will not tell police why unable to act
® Tell custody officer can no longer act but NOT disclose reasons why. (avoid para 6.3
breach)
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, CIVIL INTRODUCTION
OVER-RIDING OBJECTIVE
Set out in CPR r1.1 = Enable court to deal with cases justly and at proportionate cost.
This means:
ü Ensuring parties are on equal footing
ü Saving expense
ü Deal with cases in ways which are proportionate
§ To the amount of money involved
§ To the importance of the case
§ To the complexity of the issues
§ The financial position of parties
ü Ensuring cases are dealt with expeditiously and fairly
ü Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
• The overriding objective must be borne in mind by the courts (r 1.2) and the parties
and their legal advisors (r 1.3)
• Each party is required to help the court to further OO, but has no duty or obligation to
their opponent.
• R1.4: the court has a duty to manage cases
CASE ANALYSIS
Liability:
• What is the cause of action? Is there more than one?
• What needs to be proved and what evidence is required to prove it?
Limitation Periods
• Has limitation period expired?
Types of claim Statutory limitation period
Contract 6 years (s5 Limitation Act 1980)
(excluding personal injury) as soon as breach of contract occurs
Tort 6 years (s2)
(excluding personal injury and latent damage) when the tort is committed
when some damage occurs tort of
(negligence)
Latent damage (ONLY NEGLIGENCE) 6 years or 3 years from date of knowledge
In non-personal injury claim based on (s14A)
negligence where the damage is latent (NOT
AWARE OF IT) at the date when the cause of
action accrues
NB: If a case is statute barred, the C can still commence his claim but the D will have
impregnable defence.
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