Thursday, 24 October 2013

Wise counsel or attempts to pervert the course of justice?

I've been becoming increasingly concerned at counsel's behaviour in pre-hearing meetings at court.

What is seeming to be increasingly common, is the solicitor or barrister for the represented parent telling litigants-in-person what they can and cannot do, in terms of requests to the court for certain orders or directions.

'The judge will never do that...' and 'You can't ask for that...' quite often turns out to be wrong. While the counsel is entitled to their opinion, one starts to question whether such comments are naivety or intentional bullying and attempts to pervert the course of justice prior to the matter coming before the judge. A wise counsel would qualify that such is their opinion, but wisdom in these circumstances seems not to be universal.

That such comments are made to litigants-in-person makes such behaviour reprehensible.

Recent instances of this are not constrained to the provincial generalist solicitor, but specialist barristers from what should be more reputable chambers.

While counsel has a duty to their client, they also have a duty to the court, and should consider this when practicing their skills at fortune telling.

Is it naivety or a deliberate tactic to deceive? For the professional, neither possibility is good in terms of their reputation. I genuinely cannot understand why they do it. Is winning a case so important to them that they put aside their duty to the court and risk their reputation?

If such reports continue to come to me, I will put a new guide up on the site to cover these circumstances, including a recommendation of complaint to the relevant bodies (and process for this), copied into the President of the Family Division of the Court (who I'm tempted to write to in any regard).

Such behaviour isn't universal, but it is happening too often! I could write a second piece on the stark difference between professional, courteous and decent counsel (they exist) and the rottweiler (who does their profession a disservice).