The Role Of Courts In Discouraging Hopeless Cases And Mounting A Hopeless Defense

Compensating the Successful Litigant

Question:

Discuss about the Hopeless Case And An Abuse Of Process.

There are numerous reasons why a litigant may wish to bring a case or mount a defense which has no prospect of success. Few would disagree that the bringing of such cases should be discouraged. One way in which the courts have sought to discourage such cases is by compensating the successful litigant, and punishing the advocate for the unsuccessful side by awarding costs against the advocate for assisting in bringing the hopeless case or defense. Such awards are made on the ground that the court has an inherent jurisdiction to ensure that its procedure is not abused and used to achieve an injustice to one of the parties, and to punish misconduct of those who appear before it.

In most cases costs orders made by the courts will only partially compensate for the financial hardship of the trial, and can never compensate for the associated stress. How much greater then is the wrong done to the successful litigant when the opposing claim or defense is wholly without foundation. When a case is demonstrably hopeless the successful party has been put to the considerable cost and trouble of a trial for no cause whatsoever. This is one motivation for the longstanding attitude of the law in discouraging the bringing of hopeless cases.

This paper seeks to the possible tensions that such a rule creates within the role of an advocate, and examines the basis on which the intervention of the court has been justified. By examining in greater detail the limited circumstances in which the courts have exercised the jurisdiction to order costs against an advocate it will be seen that the objections to the jurisdiction are not persuasive. Thus, my thesis is that a rule which compensates litigants who have been brought before the court to defend a hopeless cause (or dismiss a hopeless defense) by ordering the advocate to pay the costs (and thereby punishing the advocate) is justified.

One of the problems which a lawyer in civil practice is likely to encounter is the dishonest client. There are clients whose case would involve revealing previous dishonesty: for example, the builder who wants to recover lost profits on a contract for carrying out grant-aided works and whose records reveal that the prices on which the grant claims were based were different from the prices actually charged, or the personal injury claimant who wants to recover for the loss of undeclared earnings and who was fraudulently claiming benefits.

The Impact of Hopeless Claims and Defenses

The advocate is not a fact-finder. The primary task of an advocate in our judicial system is to present the client's case in the best light possible. They are not therefore to usurp the court's role in determining the credibility of witnesses, or the inferences which may be drawn from the evidence. This said, they are not allowed to assume the truth of their clients' evidence in an uncritical manner. One example of a case which, from the report, appears as much ridiculous as hopeless, but in which the advocate was not found to have acted improperly, is Orchard v South Eastern Electricity Board the plaintiffs in this case occupied a house which suffered from poltergeist-like phenomena. Patches of water would appear in areas of the house, especially around electricity sockets, and items of furniture would move. The plaintiffs claimed that these phenomena were due to an escape of electricity which caused water to vaporize and reappear as the patches of water. The escape similarly caused static build-ups which in turn caused the furniture to move. Perhaps most surprising is the fact that these allegations were supported by the evidence of an independent expert. It transpired that the phenomena were the result of actions by the plaintiffs' 15 year old son.

White Industries v Flowers and Hart, A firm. Legal advice, no sustainable cause of action but litigation could be used to delay settlement. White Industries succeeded in primary litigation. Property developer bankrupt so White Industries sought to recover costs order against  lawyers who had given the initial advice.

Conclusion

• There are numerous reasons why a litigant may want to bring a claim or mount a defense that has no prospect of success. There are similarly a number of reasons why an advocate may wish to, or be under pressure to, assist in such an endeavor. If we accept that an advocate is more than a mere agent for the client, and has an independent role to play in the administration of justice, then assisting in a case which can be shown to be hopeless must amount to misconduct. It is this premise upon which the courts have exercised their jurisdiction to award costs against advocates who bring doomed claims or defenses before the court. It was inferred that Causes of action were hopeless and the claim had been abandoned entirely at the conclusion of the trial
• Trial Judge considered case was hopeless from inception AND the letter from the law firm threatening to create ‘ a PR nightmare’ evidenced an ulterior motive for the litigation’
• On these facts justice done by imposing Indemnity costs on the law firm Bradbury NOT counsel

The courts have sought to achieve a balance between protecting those who appear before it, and ensuring that innocent victims of wrongdoing by an advocate are compensated. The rule that an advocate may not assist in bringing a hopeless case or mounting a hopeless defense is, in fact, not as onerous as some might claim. The courts have only stepped in where a claim or defense was hopeless, and this would be apparent to any competent advocate who took the time to inquire. In cases of doubt the courts have rightly leaned in favor of the advocate. The court's jurisdiction to award costs against an advocate who assists in bringing a hopeless case is not a panacea for the proliferation of needless and doubtful litigation. However, it does set a threshold of what the court will tolerate of which all advocates would do well to be aware.

The Advocate's Role in Presenting the Client's Case

It is observed that one distinction between legal practice as business and a profession is that the code of ethics requires lawyers to promote interests of clients over interests of lawyers; the professional relationship is based on confidence and trust.

There is no absolute rule that a solicitor must never act if the interests of clients ‘may’ conflict  It is considered that Impossible for the court to evaluate the value of confidential information, the fiduciary duty to protect confidential information is absolute subject to consent

It is considered that these will be valid and fiduciary duties of undivided loyalty and confidentiality of lawyer if he indulged in following acts

1. Acting for 2 clients in the same transaction; Chapter 6

• Possible to act with informed consent if risk of conflict negligible, Importance of retainer: Mouat v Clarke Boyce and whether parties interests are converging or diverging: Taylor v Schofield Peterson

2. Acting against former client in litigation context

• Importance of the appearance of justice, courts process must be unimpeachable from the perspective of the reasonable bystander: Black v Taylor, Hana v Stephens

Conclusion

It is considered that if acting for 2 clients in the same transaction a conflict will not arise if the clients’ interests are congruent or the retainer is narrow: Taylor v Schofield Peterson, Chapter 6 of the rules

In Bristol and West Building Society v Mothew [1998] Ch 1 Lord Justice Millet described a fiduciary obligation as follows:

“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary.”

Lawyers who act for more than one client on a matter place themselves in a position where they may be unable to provide single-minded loyalty to each client. No lawyer can serve two masters.

The moment a lawyer’s single-minded loyalty to one client is compromised by concern for another client, the fiduciary relationship has been broken, the lawyer has lost independence and the rule of law has been undermined.

There are following principles which are given as below

It is observed that Code of Professional Conduct; Lawyers are regulated by the Lawyers and Conveyances Act 2006 ‘the Act’ and Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 (Conduct and Client Care Rules made pursuant to S 95 of the Act)

Lawyer must not communicate with witness during or between x-examination/re-examination, except for good reason and with consent of judge or other side/s otherwise it may result to disqualification of their professional capacity.

Reputation of the others- Professional representative should not be allowed to indulge in alleging fraud, dishonesty, undue influence, duress or other reprehensible conduct, unless the lawyer has taken appropriate steps to ensure that reasonable grounds for making the allegation exist. Y v M.

Lawyer must protect the court process to increase the efficiency of court litigation.

Judging in context stresses that legal phenomena need to be assessed in their relevant setting. This approach is in tune with reality-based judging, in the interests of achieving substantial merits and justice in the individual case. This approach is the antithesis of one which looks at legal issues in isolation or in the abstract, which focuses on technical considerations, and which gives rise to artificial outcomes.

The criticism often made of a contextual approach is that this undermines legal certainty and predictability. It is true that the use of the Wilberforce approach in New Zealand has produced a variety of outcomes in individual cases. As has been seen above, the factual matrix test was sometimes used to supplant clear contractual rights. But the hope of legal certainty in the sense of predictable outcomes in every case is an illusory one and carries the potential for injustice. Lord Wilberforce’s legacy to New Zealand law lay in flexible principles which took account of relevant circumstances and were designed to achieve appropriate and just results. He once observed

Conclusion

The duty to the court includes a duty to put all relevant and significant law known to the lawyer before the court, whether it supports the lawyer’s case or not. This duty continues until final judgment is given in the proceeding. (If after the conclusion of hearing, but before delivery of judgment, counsel wishes to make further submissions by counsel, leave of the judge is required).

There are following procedure and justice which are given as below

• Inherent jurisdiction of High Court to control its own process which includes power to determine who should be permitted to appear before it as an advocate
• Court exercise jurisdiction to ensure that justice is administered properly, to preserve public confidence in the judicial system
• Justice not seen to be done if lawyer because of a previous connection with the opposite party is in a conflict of interest position
• Justice not achieved if reasonable bystander would think it possible that conflict exited