John Hemming's Web Log John's Reference Website
Thursday, May 19, 2016
  John Hemming's Statement following Supreme Court upholding injunction
"I am surprised that the Supreme Court have upheld this injunction. The logical conclusion of this is that gossip about anyone with children will become a criminal offence subject to a potential penalty of 2 years's imprisonment.

"It is important to note that the injunction covers people talking in pubs, gossiping over the garden fence, or twittering on the internet. All of these could potentially see an application for committal for contempt of court. That comes with large amounts of legal costs and up to 2 years imprisonment. One would assume that it would not be assumed that this would only apply to claimants who have a large amount of money, but also everyone else. Such a constraint on freedom of speech is something that the House of Lords Judicial Committee of the last millennium would not have supported. I am surprised that the Supreme Court does.

"It is to be recognised that injunctions are still being used to cover up malpractice by public officials. I know of a live injunction at the moment that is doing exactly that. Obviously the government is in a position to pass legislation to free up speech in the UK. That is what needs to happen.

"Clearly the Supreme Court have not learnt from the lesson of King Canute that there are realities that it is not practical to resist. PJS and others should really study what happened in respect of Barbra Streisand when she tried to constrain freedom of speech. Lord Toulson is, of course, right.
 
Sunday, May 15, 2016
  Barristers, Conflicts of Interests and the Family Courts
I have been having a debate with various Family Court barristers as to what the rules are in respect of a barrister taking on a case for a parent when they previously have taken on a case for the local authority the parent is facing in the court.

The rules on the Bar Standards Board website are difficult to link to clearly. The basic rules can be found from here.

The relevant rule is:
rC21 You must not accept instructions to act in a particular matter if:

-3. there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or


If, therefore, we consider the case of a barrister considering whether they should accept instructions to act for a parent Mr Smith against the Huntingdonshire County Council. This particular barrister had earlier acted for Huntingdonshire against Mr & Mrs Jones.

It is clear that Huntingdonshire is either a former or existing client. It is also clear that there is a conflict of interest between Mr Smith and Huntingdonshire in the "particular matter".

Hence the barrister should not accept the instruction: unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances;

I don't think there is anything unclear about this. It is clearly the case that this rule is not being followed properly for family proceedings quite frequently, however.

The rules for solicitors are easier to find here are are quite similar. (As they should be).

Update 16/05/16

I have now spoken to the Bar Standards Council. It is clear that there is some lack of clarity in the wording of rule -3. It would be clearer if it said: -3. If you have clients or former clients in respect of the particular matter and there is a conflict of interest between the prospective client and those former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or

or

-3. there is a conflict of interest in respect of the particular matter between the prospective client and one or more of your former or existing clients unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or


Either of those draftings is clear. The current drafting does not make it clear that it is only clients or former clients relating to the same matter as that for which someone is requesting someone to act.

I think the BSB are working on the narrow definition of the rule. It must be very rare that this happens. That, however, in my view means that the rule needs to be changed. It is not equality of arms for someone to unknowingly instruct someone to represent them who is effectively on a retainer to the other party. It does, of course, depend substantially, but not entirely on the volume of instructions that someone gets from the other party. I don't personally think that permission is needed from former clients for a barrister to be instructed to act against them. However, there really does have to be transparency to the prospective client as to how dependent, both their solicitor and their barrister is on funding from another party to the case.

From the perspective of someone external to the system the drafting of the rule looks OK, but that is only because of the uncertainty. This is an issue I will continue working on.
 

Click Here for access to higher resolution versions of the photos The license for use allows use of the photos by media as long as they are attributed.

better brent chart

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