Jersey Unreported Judgments

[2004]JRC108

royal court

(Samedi Division)

 

15^th June 2004 

 

 

 

 

 

Decision of Court on representation at trial of first to eleventh and twelfth to fourteenth Defendants.

 

 

 

 

Advocate S.M. Baker for the Plaintiff.

Advocate N. Chapman for the first to eleventh Defendants.

Advocate D.R. Wilson for the twelfth to fourteenth Defendants.

 

 

judgment

 

the COMMISSIONER:

The issues and the background

1.        Questions have arisen concerning the propriety of (i) Carey Olsen continuing to act at trial as advocates on behalf of Olsen Backhurst & Dorey ('OBD'), the First to Eleventh Defendants, and (ii) Advocate Speck of Mourant du Feu & Jeune ('Mourant') continuing to act as trial as advocate for Jenners, the Twelfth to Fourteenth Defendants.  I hesitate to repeat matters of history which are only too well known to the parties, but some summary of the background is necessary with emphasis on those aspects of it that are of particular relevance to these issues.

2.        In June 1979 the First Plaintiff ("Takilla") purchased a property known as Eulah, Mont Cochon, St. Helier from Ernest Farley Son Limited.  The terms of the purchase included a covenant in Takilla's favour concerning certain restrictions on any future development of land retained by the vendor adjacent to the purchased property.  The scope of that covenant subsequently became contentious and resulted in two successive actions by Takilla against the vendors.

3.        In the first action, concerning the true construction of the covenant, Takilla was unsuccessful on appeal (in May 1989) on one of two central issues: the result was to leave Eulah vulnerable to being overlooked by a development of flats on the adjoining land.  The second action by Takilla, also against the vendors but this time alleging misrepresentation and seeking rectification, was struck out by the Court of Appeal in May 1991 on the basis of res judicata. 

4.        Takilla was initially advised and/or represented in these proceedings by Mr. Andrew Green an English solicitor practising in Jersey under the name of Andrew Green and Company and by Mr. Geoffrey Fiott of Fiott and Huelin, as advocate, and later - successively - by Ogier and Le Cornu and then Philip Sinel & Co. 

5.        Following the failure of its litigation with the vendor of Eulah, Takilla consulted the firm of Advocates and Solicitors then known as Olsen, Backhurst & Dorey and in June 1992 started an action against Mr. Andrew Green, and against Messrs. Fiott and Huelin alleging negligence in connection with the handling of the original contract for purchase of Eulah and the conduct of the first action against the vendors, (Morgan Nabarro, English solicitors then practising in Jersey, were also initially named as defendants but were subsequently dropped from the action).  Later, Ogier and Le Cornu were added as third parties.  In addition to Takilla, the plaintiffs in this action included Mr. Francis Callaghan and Mrs. Maureen Callaghan (née Bottrell; now deceased).  I shall refer to this action as 'the Green and Fiott action'.  Elsewhere it is also referred top as 'the Third Action'.  It is the conduct, course and fate of that action that constitutes the principal issue in the present proceedings.

6.        From June 1992 until sometime in 1998, the plaintiffs were represented in that action (No.92/140) by OBD.  At some point in the course of that year OBD ceased to act and were replaced by Jenners, though exactly when and in what circumstances may be a matter of dispute at trial.  An application by the defendants to strike out the claim for want of prosecution followed and in due course came before Greffier Substitute B. I. Le Marquand on 16^th October 1998.  In a reserved judgment dated 9^th November 1998, the application was granted.  There was no appeal from that decision.

7.        In the light of these events, the Takilla plaintiffs felt obliged to start yet another action - the present one, No. 1999/20, begun in February 1999 - this time against OBD alleging negligence by that firm in the pursuit of the Green and Fiott action.  That negligence resulted (it is claimed) in the unnecessary striking out of that action and the loss of a valuable opportunity to recover damages from Takilla's former legal advisers.

8.        For the best part of the next 5 years, until December 2003, the plaintiffs were represented in the present action by Jenners, as they had been on the hearing of the defendants' successful application to strike out the Geeen and Fiott action.  But, in the course of 2003, OBD announced that it would be seeking leave to amend its case to include a plea that the striking out of that action and any resulting loss was in fact the fault and responsibility of Jenners themselves and sought to have Jenners convened as defendants to the action.  The allegation in short was and is that Jenners had wrongly conceded at the hearing that, if the current claim were struck out, Takilla would be statute-barred from starting a new action; that but for that concession, the Greffier Substitute would not have granted the strike-out application; alternatively, that Jenners should have appealed his decision. 

9.        The upshot of this development was (i) that in of about December 2003 Jenners ceased to act for the plaintiffs; (ii) Baker & Associates took over from them; (iii) in March/April 2004 OBD were given leave to amend their case and Jenners themselves became defendants to the proceedings (the 12th to 14th Defendants); and (iv) Jenners retained Mourant du Feu & Jeune ('Mourant') to act for them in the action.

10.      Directions given by Master Wheeler at the time of giving leave for Jenners to be convened as parties to the action on 25th March 2004 envisaged that the trial of the action would start on 27th September this year.  At a subsequent pre-trial directions hearing before me on 19th May 2004 that trial date was confirmed.  It was at this point that the present issues arose.

11.      At the hearing on 19th May Advocate Stephen Baker of Baker Associates appeared on behalf on the Takilla plaintiffs; Advocate Nicholas Chapman of Carey Olsen on behalf of OBD; and Advocate David Wilson of Mourant on behalf of Jenners, standing in for Advocate Jonathan Speck.  Initially the only point of representation at issue on 19th May 2004 was that of Carey Olsen's continued involvement on behalf of OBD.  But in the course of oral submissions on that matter reference was made to the fact that Advocate Speck was a friend of Advocate Lakeman, one of the OBD defendants, a matter of which Advocate Baker said he was previously unaware and on which he wished to reserve his position pending discussion with his clients.  Since then all sides have had the opportunity to lodge written submissions on each of these topics.

Jenners' objection to Carey Olsen's involvement as trial advocates

12.      The heart of Jenners' objection to Carey Olsen's role is neatly summarised as follows in their written submissions:  'The key issue is that the advocate at Carey Olsen who acts at trial will not be entirely objective or it will not be apparent that he is entirely objective in the manner in which he examines partners or lawyers from his own law firm, where that very law firm is a defendant to the proceedings'.  No objection is taken to Carey Olsen continuing to act as solicitors for the OBD defendants: only to the involvement of Advocate Chapman - or indeed any other member of Carey Olsen - as advocate for OBD at trial.

13.      The material facts as regards the relationship between Carey Oslen and OBD and potential witnesses in the action are, as I understand them, as follows: (i) Carey Olsen is the product of a merger in March 2003 between Carey Langlois and Olsens; (ii) Olsens was, in effect, the successor - if I may use that term colloquially - of OBD; (iii) seven of the eleven defendants currently sued as partners in the former firm of Olsen Backhurst and Dorey are currently partners in the firm of Carey Olsen together with four others who came from the Carey & Langlois side of the merger (or at least are not former OBD partners); (iv) neither Advocate Chapman nor any of the other lawyers with day-to-day responsibility for the conduct of the current action is a partner in Carey Olsen; (v) Advocate Chapman was never a partner in OBD or, as far as I am aware, was ever connected in any way with that firm (prior to joining Carey Olsen he had been an advocate with Mourant); (vi) in practice, Carey Olsen's 'clients' are OBD's professional indemnity insurers; (v) it is likely or at least possible that Advocates Journeaux and Lakeman, formerly partners in OBD at the material time and now partners in Carey Olsen, will give evidence at the trial of the current action.

14.      Jenners acknowledge that there is no decided case directly in point but submit that the relevant principles can be derived from the Codes of Conduct of the Jersey Law Society and the Bar of England and Wales; from the Law Society's Guide to Professional Conduct of Solicitors; and from a limited number of decided cases in which courts have had occasion to consider similar problems:  in Jersey, Hirshfield & Ors. -v- Sinel & Ors. [1999] JLR 55; in England, Geveran Trading Co. Ltd. -v- Skjevesland [2003] 1 WLR 912; and in New Zealand, Barrott -v- Barrott [1968] NZLR 988.  On the basis of these materials there is, they submit, a well established bar on a person acting as advocate at trial 'if a member of his firm will be called as a witness on behalf of the client'.  In the present case, Advocates Journeaux and Lakeman are, of course, not merely potential witnesses, but also named defendants.

15.      Carey Olsen on behalf of OBD submit that it would be unfair to compel any such change at this late stage; that Jenners have been involved in this litigation for a long time (albeit as representatives of the Plaintiffs rather than as defendants themselves) without pursuing any objection to OBD's representation; that Advocate Chapman and the other Carey Olsen with day-today responsibility for conduct of the action are not, themselves, partners in Carey Olsen and are well aware of their responsibilities and obligations to the court.

Takilla's objection to Advocate Speck acting as advocate at trial for Jenners

16.      Having considered the matter with his clients subsequent to the hearing on 19th May, Advocate Baker lodged a formal objection to Advocate Speck acting as advocate at trial on behalf of Jenners.  No wider objection to Mourant's involvement is maintained: it is suggested only that the proper thing to happen would be for the conduct of the case at trial to be handed over to another advocate in that firm.

17.      It is said, first of all, that Advocate Speck acted at one time for Ogier & le Cornu, third parties in the Green and Fiott action; but it is by no means clear that this has much bearing on the matter and the point was not really developed in the Plaintiff's submissions.

18.      The main point of objection, plainly, is that Advocate Speck and Advocate Lakeman are friends (and possibly also that another advocate at OBD is a friend of Advocate Speck).  The matter is put this way in, firstly, a letter from Advocate Baker dated 26th May, and secondly, the Plaintiff's formal written submissions:

'It is likely that Advocate Lakeman will be the subject of substantial criticism of the handling of the [Green and Fiott] case for OBD.  That criticism will be made by the Plaintiffs.  It is likely that criticism will [also] be made by Jenners.  It is to be anticipated that at trial Jenners will suggest any loss was caused by OBD.  It will certainly be argued that there is no question of novus actus [a reference to OBD' contention that Jenners incorrectly conceded the point on limitation earlier referred to].  In those circumstances it is important not only that Jenners' case is pursued vigorously but that it is seen to be so.  The unfortunate history of the case has perhaps understandably resulted in the surviving human plaintiff [Mr. Callaghan] having a jaundiced view of the Jersey Bar.  When law firms which pursued the plaintiffs' claims for 12 years now claim they are valueless it is understandable that the surviving lay plaintiff considers there is a substantial element of protectionism and closing of the ranks that is at work It is important that so far as possible the trial is seen to be independent and free of vested interests'. 

'Advocate Lakeman is a vital witness for the OBD Defendants.  He had conduct of the case for what the Plaintiffs say, is the vital period, prior to striking out the action.  Given the position between the two Defendants, the cross-examination of Advocate Lakeman by Advocate Speck will be particularly decisive and relevant to the issues between them.  This is especially true if the Jenners Defendants claim a contribution between from the OBD Defendants...............Given the nature of this litigation and the above features, the Plaintiffs submit that the court must be alive to the perception of the legal system in Jersey.  The Plaintiffs have been badly served by their legal representatives and are suspicious of the lack of [independence] at the Jersey Bar.  Practically, the removal of Advocate Speck from the litigation would cause few problems, given his relatively small involvement to date.  Symbolically, it would ensure independence and fairness.  Such a result is vital, in the Plaintiffs' submission, to ensure that justice is done and seen to be done.'

Advocate Speck's own comment on this submission, contained in a letter to the Court dated 28th May 2004, reads as follows:

'I can confirm that I am a friend of Advocate Lakeman.  I can also confirm that there is nothing about my friendship with Advocate Lakeman which will in any way affect the manner in which I represent my client.  If anyone had the right to take issue with my professional position, which I do not accept, it would be my own clients.  That is of course between me and them.  I can confirm that they are aware of Advocate Baker's stance and have no objection to my continuing to act.'

19.      Jenners' submissions on this point speak of Advocate Speck having a friendship with Advocates at Carey Olsen 'just as he has a friendship with Advocate Baker and other advocates on the island'.  The case, it is argued, is quite different from that of Carey Olsen in that 'This is not a situation where Advocate Speck has any confidential information or common interest to protect shared with Advocates at Carey Olsen arising out of this friendship.  This can be contrasted with Advocates at Carey Olsen where members of the firm obviously do share common interests.' 

The jurisdiction of the Court to intervene

20.      The Court's jurisdiction to prevent an advocate or solicitor acting for a party is founded (i) in cases where information confidential to one or other of the parties may be imperilled, on the protection of substantive legal rights: Bolkiah (Prince Jefri) -v- KPMG [1999] 2 AC 222; and (ii) in most if not all other cases, on the inherent jurisdiction of the Court to control its own process and the conduct of its officers and to prevent abuse of its procedure: Geveran Trading (supra), and In re (Minors) (Care Proceedings: Solicitors) [2001] 1 WLR 100, per Wilson J. at 105.  No issue of confidentiality arises in either of the two areas of challenge in the present case: both fall to be dealt with under the second of these two heads.

21.      In such cases, the court's jurisdiction is a discretionary one, to act as it thinks best in the interests of justice in the action in question.  In some extreme cases, such as where counsel finds himself in a position of plain and serious conflict of interest, there may in practice be little scope for the exercise of such discretion and the outcome in such instances is a more or less foregone conclusion.  In general, however, the discretion has to be exercised in the light of the facts and other circumstances of each individual case; with due regard for the principle that justice needs not only to be done but to be seen to be done and with regard to the possibility of an appeal if the practitioner in question were permitted to continue to act.  But it also needs to be exercised  with restraint:  

'We accept that the circumstances, other than those where he has relevant confidential information, where an advocate may be restrained by the court form acting as an advocate in litigation are likely to be very exceptional'.........  'A judge should not too readily accede to an application by a party to remove the advocate for the other party.  It is obvious that such an objection can be used for purely tactical reasons and will invariably cause inconvenience and delay in the proceedings.  The court must take into account that the other party has chosen to be represented by the counsel in question',

per Arden LJ giving the judgment of the court (Schiemann, Arden and Dyson LJJ) in Geveran Trading at 922 - 924. 

22.      The codes of conduct of the professional bodies can be a convenient point of reference in so far as they crystallise or otherwise embody principles of law or practice that a court would itself adopt in any event, or in so far as they reflect rulings of courts in particular cases (this being the way in which such codes and guides tend to grow): to that extent they can be a legitimate factor in the exercise of the court's discretion.  It is not, however, for the court to enforce these codes and guides as such: Geveran Trading at 923 and 926.

23.      The primary consideration in most cases where problems such as those presently under consideration arise (and confidential information is not in issue) is the duty that every advocate owes to the court, a duty that over-rides that owed to his own client: the judgment of the court in Geveran Trading gives, at 922, a number of illustrations of what this means in practice.  Fundamental to the effective discharge of that duty in general is the need for the advocate to be independent as far as possible of any and all external interests and motives, whether financial, professional or personal.  Both the Jersey Law Society Code of Conduct and the Bar Council Code of Conduct expressly reflect these ideas as basic tenets of practice, the purpose being to ensure that wherever professional advocates are employed the court can be reasonably confident that the case - whatever its ultimate merits - will be presented fairly and responsibly.  Whenever circumstances arise that suggest that that independence may be open to question and that counsel's freedom to discharge his duty could be in jeopardy, other parties and the court itself will rightly be concerned.  At the same time, it needs to be recognised that litigation is a far from perfect process, the ideal is not always attainable, and one principle sometimes has to be balanced against other considerations of equal weight and against the practicalities of every-day-life.  It is not uncommon, for example, for counsel to build up a close professional relationship with a particular client, sometimes extending over many years.  Yet it must be rare if ever that objection is taken to someone in such a position appearing as advocate for such a client, even where this entails him calling as witnesses persons who are well known to him and who may even be the effective source of his regular work for that client.

24.      With these principles and considerations in mind I return, now, to the two objections raised in the present proceedings.

Conclusions

25.      Two specific statements are relied on by Jenners in relation to the representation of OBD.  The first is a provision of the Law Society Guide, (8th Ed'n) (1999) paragraph 21.12, reading

'A Solicitor must not accept instructions to act as an advocate for a client if it is clear that .... A member of the firm will be called as a witness on behalf of the client...' 

The second is a passage from the judgment of Haslam J. in Barrott -v- Barrott 1964 NZLR 988, a decision of the Supreme Court of New Zealand in which the partner of counsel for the respondent was called as a witness in the case:

'Again, Mr. MaKay's partner was called as a witness to give the full narrative as he knew it, but despite my careful warning beforehand, Mr. McKay chose to appear for the respondent and the woman entitled to intervene.  The fact that, in the main, a fused profession suits our needs in this country must not obscure the I importance of counsel being personally remote from the subject-matter of the dispute before the court.......................Again, without criticism of anyone concerned here, I suggest that a practitioner should not appear as a barrister for a party when his partner's conduct is a fact relevant to the issue before the court.  From loyalty to his firm he stands committed in advance to a degree that may well detract from his detachment of judgment and freedom of action, and both the client and the cause of justice may suffer if the inherent danger be not heeded.  Fortunately, in the ultimate result here, no damage was done.' 

(Despite the court's concern, counsel for the respondent in question was not prevented from continuing to act in the proceedings.  At the same time, counsel for the petitioner who also found himself in the position of having to give evidence, was criticised by the judge for then withdrawing completely and leaving his client without the benefit of representation).

26.      As a matter of general practice, the observations of Haslam J appear to me to be entirely right.  It also seems to me that, although the circumstances of the present case are different in that the firm of lawyers and the client are (to some extent) one and the same, the point of objection is in principle the same.  Advocate Chapman may not be a partner in the firm but he is a member of it, and the witnesses that he will be calling are the principals of the firm by which he is employed.  This, undoubtedly, is a less than satisfactory state of affairs and one of a kind that ought wherever possible to be avoided, blurring as it does the distinction between the role of counsel and that of litigant-in-person.  In the present case, however, this state of affairs has to be weighed against a number of other considerations:-

(i)        In the first place, as the Deputy Bailiff forcibly protested more than once in his judgment dated 9th January 2003 on one of the innumerable interlocutory skirmishes in this action, this action has already gone on for far too long and needs to be brought to trial as soon as possible.

(ii)       To oblige OBD to find other advocates to act for them at this late stage would almost certainly result in an application for a substantial adjournment of the trial date which it would be impossible for the Court to refuse: the costs implications would also be likely to be very considerable.  How quickly someone could be found to take over the task of representing them at trial is not a matter on which I am in a position to make any informed judgment and, unless and until they themselves were to make inquiry, it may well be that OBD equally would have no idea.  There may appear to be other firms which, on the face of things, would have no conflict of interest in accepting instructions on behalf of OBD (as Jenners assert), but experience tells one that the existence of potential conflicts often emerge only after detailed inquiry.  And in any even the field of choice in Jersey is relatively restricted.  Mourant, it is true, were instructed on behalf of Jenners only relatively recently; but they were no strangers to the litigation, having acted in the past for at least one other party in the earlier actions.

(iii)      The Plaintiffs do not support Jenners' objection.  At the hearing before me on 19th May this year, Advocate Baker emphasised that his clients' chief concern was for the matter to be brought to trial.

(iv)      Jenners' involvement in the case, in one capacity or another, is not new.  Over a period of some 5 years covering some nine hearings of one kind or another during which Jenners were acting for the plaintiffs, no objection was taken by them to OBD effectively representing themselves.  Technically, of course, Jenners are entitled to say that they cannot be formally bound by what they did or did not do at another time when they were not themselves parties to the action; but in the context of the court's exercise of discretion, this seems to me to be a matter not without some relevance.

(v)       The nature of the potential 'mischief' that arises from the current representation of OBD, is not in my view such as to outweigh these other factors and render the trial process unfair or otherwise incapable of producing a just result. 

27.      For these reasons I am satisfied, on balance, that the interests of justice will best be served by declining to compel OBD at this late stage to make other arrangements for their representation at trial. 

28.      In the case of the Plaintiffs' objection to the involvement of Advocate Speck, I likewise do not, on balance, consider that it would be right to accede to Advocate Baker's application.  If the fact of the matter is that Mr. Speck is a good friend (in common parlance) of Advocate Lakeman or any of the other potential OBD witnesses, then it is understandable that his role in the case might come in for scrutiny; and I am, of course, particularly mindful of the fact that it is the plaintiffs who have reservations about that role on this occasion.  But here again there are other considerations that have an important bearing on the way in which my discretion is exercised:-

(i)        Here too my decision is powerfully affected by the importance of seeing that this action is now brought to trial with the minimum of delay.

(ii)       Here again, I am not convinced that making alternative arrangements would necessarily be as simple as the objecting party suggests, even allowing for the fact that in this case the plaintiffs indicate that they would not insist on a change of firm but only of counsel within Mourant.  Some level of additional cost would also be involved.

(iii)      The plaintiffs' concern as to how vigorous Mr. Speck would be in his cross-examination of Advocate Lakeman appears to me to be somewhat out of proportion to the realities of the situation.  Any such cross-examination is likely to go mainly to the issue of responsibility and contribution as between the defendants.  If Jenners and their insurers have confidence that Mr. Speck will have no difficulty in fearlessly looking after their interests, it seems to me that any interest that the plaintiffs may have in seeing that the defendants fight one another with no holds barred is a secondary matter: they will have their own champion in Advocate Baker and he will have his own opportunity to cross-examine the OBD witnesses, including Advocate Lakeman.

(iv)      Here, as before, I do not believe that the potential 'mischief' occasioned by the present arrangements or the concerns voiced by Advocate Baker on behalf of the Plaintiffs (understandable though they may be) outweigh these other considerations or will render the trial unfair or otherwise incapable of producing a just result between the parties. 

29.      That said, it is unfortunate that the proposed arrangements for OBD's and Jenners representation at trial are as they are, and that the grounds for potential unease were not foreseen long ago in the case of OBD/Carey Olsen and, in the case of Mourant, at the time when they accepted instructions to act for Jenners earlier this year.  If nothing else, the task of the Court is made that much more difficult by the need to be watchful for any potential problems arising along the way from the relationships in question, and it must be for serious consideration whether the interests of the parties themselves will, in the long run, be best served by leaving matters as they are.  Not that there is any reason whatever to doubt the integrity of any of those currently involved, whether as advocates or solicitors: it was, for example, Advocate Chapman of Carey Olsen who, very properly, drew my attention to the New Zealand case of Barrott -v- Barrott which was anything but in OBD's favour.  While, as already indicated, I do not propose to intervene formally to compel changes in either of these arrangements, I invite both sets of defendants and their advisers to consider whether it might be practicable, even at this late stage, to make adjustments or to introduce additional safeguards of some kind, without disproportionate cost, with a view to emphasising and facilitating the independence of counsel in this action.

Authorities

Hirshfield & Ors. -v- Sinel & Ors. [1999] JLR 55.

Geveran Trading Co. Ltd. -v- Skjevesland [2003] 1 WLR 912.

Barrott -v- Barrott [1968] NZLR 988.

Bolkiah (Prince Jefri) -v- KPMG [1999] 2 AC 222.

In re (Minors) (Care Proceedings: Solicitors) [2001] 1 WLR 100.

Law Society Guide, (8th Ed'n) (1999) paragraph 21.12.