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Section 1- Ethics

 

In the time allotted, it is impossible to deliver a lecture on ethics covering the various obligations on a Solicitor dealing with various parties. For the purposes of this Diploma in Civil Litigation, I intend to confine myself to the relationship between a Solicitor and the Court.

 

The obligations of a Solicitor in his/her relationship with the Court are set out in the Guide to Professional Conduct of Solicitors in Ireland.

A Solicitor owes a Duty of Care to his client, but, also owes a Duty of Care to the Court. A Solicitor appears before the Court as an Officer of the Court.

A Court must be able to rely upon representations made as matters of fact by a Solicitor appearing before it.

 

In general terms a solicitor should:-

a. Promote, and, protect fearlessly, by all proper, and, lawful means, the client’s best interests, and, should also do so, without regard to his/her own interests, or, any consequences to him/herself, or, to any person.

b. Should keep confidential information about a client, and, his/her affairs, and, must not disclose the facts known to him regarding the client’s character, or, previous convictions without the client’s expressed Consent.

c.Note his/her overriding duty to the Court to ensure in the Public Interest that the proper, and efficient Administration of Justice is achieved, and, should assist the Court in the Administration of Justice, and should not deceive, or, knowingly, or, recklessly mislead the Court.

This does not however, stretch to pointing out a mistake, made by the opposing party, or, the Prosecution, otherwise than on a Point of Law. The General Obligation is not to mislead, or, not to deceive the Court.

The manner of interaction between a Solicitor and the Court, is by way of advocacy, and, also the filing of Pleadings, during the course of any set of Proceedings.

A Solicitor should present his/her client’s case to his/her client’s best advantage, and, the Solicitor has a Duty to Assist the Court in reaching a Just Decision, and, therefore must appraise the Court of all relevant cases and Statutory Provisions.

A Solicitor should not deceive the Court, but, is not obliged to make available to the Court any evidence which is harmful to his/her case, which the Court or, the opposing party may not be aware of. Where a Solicitor appears as a Prosecution Solicitor, the Solicitor is, however, under a Duty to Inform the Court of the existence of Witnesses who would assist the Defence.

A Solicitor should also show Due Courtesy, not only to the Court, but, to all the Witnesses in the case, and, the opposition. A Solicitor should not call a Witness whose Evidence is known to be untrue to the Solicitor.

The Contract operating between a Solicitor, and, client is often known as a “Retainer”. A Solicitor derives his/her instructions, and, authority solely from those who instruct him/her.

It is an Implied Term of the Retainer, that a Solicitor is free to conduct Proceedings in such a way as he/she, in his/her proper discretion considers appropriate. If the instructions given to a Solicitor give rise to a situation in which the inclusion or, exclusion of certain Evidence on the one hand, and, a Solicitors Duty to the Court on the other hand, is in conflict, or, would be placed in conflict, the Solicitor should, unless his/her instructions are varied, withdraw from the case after seeking the Courts approval to that Course. [1]

A Solicitor should withdraw in circumstances where a Solicitor has knowledge that the Client has committed Perjury, or has misled the Court in relation to the Proceedings, unless the client agrees to make a full disclosure of his/her conduct to the Court.

A Solicitor should under no circumstances discuss the merits of a case with a Judge, Registrar, or, Clerk, or, other Court Official before whom the case is pending.

Any written communication to the Court should be copied to the other side, whether represented, or, not. Otherwise, any approach to a Judge in a case should be made on Notice to the other side.

Where Judgment is Reserved, and a Solicitor then discovers a legal point, and, proposes bringing it to the attention of the Judge, the Solicitor on the other side ought to concur in so doing, even if he knows that the proposition of Law is against his side of the case. If the other Solicitor does not concur, the Solicitor seeking to make his submission, may submit the additional authority to the Judge in writing, and, a copy should be sent to his/her opponent.

It is open to a Solicitor, upon instructions from his client to advertise for Witnesses to come forward to give Evidence as to a particular occurrence, but, the advertisement, should not invite persons to Testify as to particular facts.

A Witness called in a case does not belong to any side of the case. A Solicitor is entitled to interview a Witness, and, take Statements from that Witness in any Civil or, Criminal Proceedings. This applies whether the Witness has been called by the other party, or, called by that Solicitor, provided, that there is no question of tampering with the Evidence of a Witness, or, attempting to force a Witness to change his/her story.

Where a Witness is in the course of being Cross-examined, a Solicitor should not, without leave of the Court, or, without the Consent of the other side discuss the case with the Witness, whether, or, not, that Witness is the Client. This prohibition covers the whole of the relevant time including adjournments and weekends. [2]

A Solicitor should not Offer an incentive to any Witness with regard to giving Evidence, or, to make payment of a Witness’s expenses contingent upon the nature of the evidence given or, the outcome of a case.

A Solicitor should bring to the attention of a Court, the expenses incurred by Witnesses called by that Solicitor to ensure that these form part of any Order for Costs made by the Court.

It is frowned upon, for a Solicitor to be a Witness in his own case, or, to remain in a case where a member of his firm is called as a Witness. However, a Solicitor may give Evidence in a case where the Evidence to be given is purely formal, such as the Witnessing of Deeds in Civil cases. In assessing whether to continue to act in a case, detailed consideration should be given to the nature of the case, the nature of the Evidence, and, the position of the Client should the Solicitor cease to Act. However, the paramount consideration should be interests of Justice, both real and perceived.

A Solicitor is obliged to comply with Orders made by the Court, requiring him, or her to take, or, refrain from taking some particular course of Action, and, failure to do so may amount to Contempt of Court. A Solicitor should not aid or, assist a client in refusing to obey an Order of the Court. Any Undertaking given to the Court is binding upon the Solicitor giving such an Undertaking.

A Solicitor should not stand Bail for a person, for whom he/she, or, his/her firm acts. It is unlawful for any person, including a Solicitor to be a party to a bargain to indemnify a surety for Bail.

Solicitors should always appear in Court dressed in a manner which shows respect for the Dignity and Formality of the Court.

A Solicitor, who, on his/her Clients instructions, issues a Statement to the Press in relation to Pending Litigation, or, a case at Hearing, should ensure, that he is not in Contempt of Court.

A Solicitor who is on record for a party to Litigation cannot come off record without leave of the Court.

 

Parties to Action.

It is crucial in the conduct of litigation to establish all of the parties that may be liable in damages in relation to the cause of action of the Plaintiff or Plaintiffs.

It is quite common in a case that there may be more than one defendant to a particular action. A common example would be in the area of medical negligence, where the defendants could be the consultant, a junior doctor at the hospital, a nurse at the hospital, the general practitioner and the hospital itself. In many cases of medical negligence, it is sometimes impossible to ascertain at the time the proceedings are instituted, which of the parties is liable to which degree, in relation to the personal injury caused to the Plaintiff. In practical terms, given the that the Statute of Limitations for personal injury actions now provides for a maximum period of 2 years from the date that the cause of action accrued to issue proceedings (the exception for Discovery of the injury), it is now more often than not that a blitz type of proceedings are instituted.

It can easily take 18 months to obtain the necessary medical records and, a preliminary report in relation to negligence. This may be from one particular type of consultant and, it may be necessary to obtain a further report from an expert GP or, an expert other type of consultant.

In those circumstances, the importance of an “O’Byrne” letter is essential.

This form of letter is sent to each of the parties who are identified as potential defendants. The purpose of the letter is to inform each of the potential defendants of the intention to join each of them in the action proposed, unless one or more of them admits liability to the Plaintiff in the meantime and, agrees to indemnify the other defendants.

This letter is a form of protection in favour of the Plaintiff against the costs of a successful defence by one of the defendants to the proceedings. In the absence of an O’Byrne letter, the Plaintiff could win the proceedings against one or two of the defendants, but, suffer an order for costs against a third defendant who has successfully established that he/she had no liability to the Plaintiff.

The High Court Rules in relation to parties are set out in Order 15 of the Rules of the Superior Courts[3].

The following are pertinent in relation to the High Court Rules:-

• Provision is made for a class action with discretion to the Courts to separate out the actions, if it is more expedient.[4]
• The Court has a jurisdiction to substitute a correct Plaintiff in circumstances where an incorrect Plaintiff was listed as Plaintiff through a bona fide mistake.[5]
• The Rules allow whatever numbers of defendants are required to be joined against whom a relief is alleged to exist, whether jointly, severally or otherwise. The Court can give a judgment against one or more of the defendants, according to their respective liabilities.[6]
• It is essential that the relief claimed against a defendant is spelled out in the proceedings. Otherwise, the Court can allow defendant escape on the basis that there is no cause of action pleaded against it.[7]
• Rule 7 provides for the O’Byrne type set up, and, allows the Plaintiff to join two or more defendants where he is in doubt as to who he is entitled to redress from.
• Trustees, Executors and Administrators can sue on behalf of the estate and, on behalf of the beneficiaries of an estate, without having to join the beneficiaries in the proceedings, unless the Court otherwise directs.[8]
• Trustees, Executors and Administrators can sue on behalf of the estate and, on behalf of the beneficiaries of an estate, without having to join the beneficiaries in the proceedings, unless the Court otherwise directs.[8]
• Trustees, Executors and Administrators can sue on behalf of the estate and, on behalf of the beneficiaries of an estate, without having to join the beneficiaries in the proceedings, unless the Court otherwise directs.[8]
• There is provision in the Rules to bind a non-party to the proceedings, where the justice of the case so requires. It is particularly so in the case of a trust, where the benefit would be for some party who is not a party to the proceedings.[9]
• The Court can at any stage strike out proceedings against a party improperly joined or, join a party that ought to be joined in the proceedings. [10]
• The Court can at any stage strike out proceedings against a party improperly joined or, join a party that ought to be joined in the proceedings. [10]
• An infant can sue as Plaintiff by his next friend and, defend by Guardian appointed for that purpose.[11]
• A person of an unsound mind may sue by his committee or next friend and, defend by his committee or guardian appointed for that purpose.[12]
• Infants shall not appear except through a Guardian Ad Litem.[13]
• Rules 22-38 are specific to probate actions and, are particularly provided for the capacity of representation in respect of probate matters. Those Rules ought to be consulted prior to the institution of any proceedings involving the proving of a Will in solemn form or, in relation to any probate action.

The Circuit Court Rules are largely in parallel with Order 15 of the Rules of the Superior Courts.

The following rules are worthy of mention:-
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1. The Circuit Court in proceedings brought on behalf or, against an infant, can appoint next friend or, Guardian Ad Litem, to act for the infant.[14]
2. Where proceedings are taken for the recovery of land, any tenant, under-tenant, or other person in actual possession of the property sought to be recovered, may be named as defendant and the Civil Bill shall be directed to such tenant, under-tenant, or other person with addition of the words “and all persons concerned”[15] In such circumstances any such person seeking to appear may appear by leave of the Court, notwithstanding that they have not been named in the Civil Bill.[16]
3. The Rules allow for the joinder of a party residing outside the particular circuit, when such proceedings have been instituted, to the proceedings provided that they are reside within the state.[17]

Order 39 of the District Court Rules deals with the issue of parties. The Rules are not as detailed or, specialised as they are in the Rules of the Superior Courts and Circuit Court Rules.