Barristers have to represent their clients fearlessly. The cab rank rule applies and so they do not choose their cases. In this case, a District Judge had made an order that counsel should not act for the father (Mr Ahmed) in family law proceedings because of her past dealings and conduct in respect of the mother (Mrs Iqbal). Mr Ahmed had appealed against the District Judge’s order preventing counsel’s representation of the father and the appeal was heard by Mr Justice Macdonald. Mr Ahmed’s appeal was dismissed and a request to anonymise the name of Miss Sima Najma of counsel was refused when considering the importance of the principle of open justice.
This important case assists with the principles to be applied when considering whether the court itself can intervene to prevent counsel from acting and whether it should interfere with right of litigants to have their choice of counsel. The Court has clearly found that, in effect, that Article 6 ECHR rights are not absolute when it comes to the choice of counsel, even when the Cab Rank principle is applied and even when counsel’s core duties require them to ‘promote fearlessly and by all proper and lawful means the client’s best interests’.
This decision of the High Court is an important example of representation being considered judicially, rather than by lawyers and/or the Legal Aid Agency.
What are the practical implications of this case?
It is not usually for the court or for opposing parties to seek to restrict a litigant’s choice of representation. In Skjevesland v Geveran Trading Co Ltd  EWCA Civ 1567, the Court of Appeal, at paragraph 39, made clear in a bankruptcy case that the court has the power, in exceptional circumstances, to prevent an advocate acting as a party. That was not only in circumstances where that advocate had obtained relevant confidential information. As to whether that power should be exercised, the question had focused on whether there could be said to exist a reasonable apprehension that counsel’s own situation would have an adverse impact on the proper conduct of the proceedings and thereby whether there would be unfairness. The court should exercise caution having regard to the duties and obligations that rest on the shoulders of counsel. It was correct that an opposing party might attempt to have an advocate removed for tactical reasons and so the court should not too readily accede to the application by an opposing party for specific representation to be removed.
What was the background?
The father had been represented before a District Judge by Miss Sima Najma of counsel. She had previously been a legal executive. She had represented the father in immigration proceedings in that previous role. Macdonald J noted that the District Judge had seen evidence of somewhat emotive terms used by Miss Sima Najma since she became a barrister. These terms including Miss Najma referring to the mother as being a “bitter ex-wife” and that counsel had threatened defamation proceedings against the mother when there had been complaints about counsel to her regulatory body. Miss Sima Najma had asserted that “the mother had brought her to breaking point, caused her emotional distress and put her at risk of depression”.
The mother had contended that the father’s counsel would have information and knowledge which other counsel would not have about her and that the father’s counsel had shown concerning behaviour and attitudes against the mother which would then lead to unfair cross examination of the mother. The mother said that Miss Sima Najma should not represent the father but that other counsel should do so instead. The District Judge had dealt with this issue at a separate hearing with detailed written and oral submissions from both parties.
It was submitted on behalf of the mother at the appeal before Macdonald J that the nature of cross examination had changed in recent years with the references to the new Equal Treatment Bench Book and the Advocates’ Gateway and with new Practice Directions in respect of vulnerable witnesses.
What did the court decide?
Macdonald J held that none of the father’s five grounds of appeal stood up to scrutiny. The matters raised by the Respondent mother in her skeleton argument and during oral submissions were largely adopted and endorsed. It was held that the District Judge had applied the correct test and had focused on the fairness of the substantive proceedings. The weight to be applied to the various factors was a matter for the District Judge. The District Judge had properly noted the risk of tactical maneuvering by the mother.
Whilst it was open to the father’s counsel to make a complaint to the police about harassment by the mother, the totality of the matters was such that the matters raised against the mother by father’s counsel were serious.
Additionally, the documents containing the assertions of father’s counsel had been put before the District Judge by the father. The father’s counsel had also acted for the father in his immigration application when she was a legal executive and she had been communicating regularly with the mother which led to a relationship of de facto client and professional advisor.
Amongst other things, the mother being cross examined by counsel who had that information would lead to a lay apprehension of unfairness.
Macdonald J held that the court at first instance was correct to conclude that there were exceptional reasons why Miss Sima Najma of counsel should be removed and that she should not act for the father.
Consequently, the father’s appeal was dismissed, and he was ordered to pay the mother’s costs.
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