What should the court’s role be in protecting the public from negligent lawyers?
Twitter has got hold of a decision concerning negligent submissons made by a barrister and a solicitor advocate in two immigration cases.
The President of the Queen’s Bench Division did not hold back:
“arguments that were nonsensical were put forward to the court by lawyers who did not have the degree of competence that is essential to practice in immigration law…No counsel knowing anything about this area of the law could put forward such an argument…it is a plain breach of duty to [advance] arguments to the court that are manifestly nonsensical and display an obvious ignorance of the law…The solicitor advocate concerned has accepted that his application displayed manifest incompetence”
Mr Justice Cranston’s analysis was no less scathing, but more concise. “I agree”, he said.
But the court’s decision to anonymise the names of the lawyers involved raised the eyebrows of some. Richard Moorhead, a law professor at U.C.L and author of the Lawyer Watch blog, pointed out that the President warned in an earlier case:
“if people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.”
It seems that profuse apologies and undertakings as to future conduct persuaded the court that the matter did not need to be referred further. This time.
So what should the court do in the face of manifestly incompetent conduct on the part of a regulated individual?
The court can go too far. In one Isle of Man case the trial Deemster took the view that counsel might have committed a criminal offence under Manx law and, not only made a wasted costs order against him, but forwarded the relevant material to the BSB and the Attorney General. The wasted cost order was successfully appealed on the ground that the trial Deemster should have recused herself because:
“The fair minded and well-informed observer would have concluded that the matters between the trial Deemster and trial counsel had become far too personal and objectivity had been sacrificed”
The appeal judgment also recited the fact that the Director of Prosecutions had concluded “at an early stage” that there was no evidence of criminal conduct.