It’s not just lying that leads to crying
Nathalie Tidman has done a thorough and balanced job of reporting on recent NDA controversies for Legal Business (£). Interesting new information includes that Zelda Perkins had a barrister involved in her case, and that the firm that represented her kept the NDA in a firm safe, “with a post-it note inscribed ‘this must not walk’. All the supporting documents – including the evidence given by Perkins and her colleague – were apparently destroyed in a warehouse fire.” There’s also a fair bit on law firms wider travails with sexual harassment and keeping it secret. More pain to come on that one is the angle.
I want to focus on one comment. It comes from a fellow employment lawyer:
‘Mansell is better than most… If you want an unethical employment lawyer, I could point you towards many. Mansell is not one of them.’ Another employment law veteran observes, incredulously: ‘He’s one of us.’
I have heard similar things myself from people who say they know Mr M well. I am happy to accept a judgment of his good character. And bear him no grudge at all. Nor, if I am candid about it, given the effluxion of time, would I like to see him punished, save perhaps pour décourager les autres. Also, as it happens, I have an irrational soft spot for A&O because my first contact with them was with a partner who was among the kindest, and most charming, of any lawyer I have met. Mr M might well be one such as him. I am all for believing it.
What I want to challenge is the relevance of this to judging his conduct. It falls into the trap of thinking ethical misconduct is primarily about character. Is he or is he not a good egg clouds many a judgment. Having interviewed or talked to lawyers about how they manage for ethicality: they tell me, we recruit people like us and they learnt this stuff at law school (no, no they almost certainly did not). We don’t see a problem: it’s all about character and common sense. It is an approach which is understandable but crazy dangerous in the high stakes world of legal practice. A Gupta-like scandal with a medium sized law firm could, I think, bring a firm down; maybe even a big firm.
The point is made repeatedly in a recent book by Yuval Feldman , The Law of Good People: Challenging States’ Ability to Regulate Human Behavior (Cambridge University Press 2018). I’m not going to say a great deal here about the book as another blog is coming out on Jotwell soon (it is now published here). I do want to say this: Feldman’s central point is that most wrongdoing is done by good people. They (we!) do wrong because much of their (our) decision-making is done subconsciously, intuitively, or without reflection – we deceive ourselves albeit sometimes, importantly, with glimmers of recognition that we are uncomfortable about something.
Feldman sets out a host of reasons. One set of reasons is about biases which, I think, might be particularly important for lawyers: illusions of our own objectivity; a belief that we should discount intuitions and emotions in our decision-making (and the harm we cause to others); the ease with which we can rationalise misconduct after the event; the impact of tiredness and quick decision-making under pressure; working in competitive not collaborative environments; and, a sometimes excessive appetite for exploiting ambiguity. These often come with the territory.
That territory encourages good people to make ethical mistakes. It damages our ethical antennae and capacities to reason optimally. And, importantly, Feldman thinks, and evidence suggests, sensible, proportionate things can be done about these biases. We can make better decisions with some extra care and practice.
It is striking how often, in argument, one is exhorted to play the man not the ball; but the reverse is not true. In defence one can offer the man and ignore the ball. This is the wrong approach. A professional community must acknowledge the capacity for bad decisions to emanate even from the best people, and be willing to look at conduct forensically, and professionally; acknowledge mistakes, learn, and move one. When it comes to punishment, then yes, we should look at the man; but when thinking about what is professional, it is the man’s actions that are central. I suspect if we really embraced this, then professional regulation would look more at understanding, education, leadership, and restorative approaches to conduct complaints; and less at punishment. Here’s hoping. Focusing on whether someone is one of us, obscures the real issues. The law of good chaps does not mean we do not need to think about this.
@Crimegirl has been posing a very entertaining series of tweets on the daft things clients do. This one is not the most entertaining one* but it caught my eye…
[* I think this one is the funniest one, should you be interested.]
The tweet was nearly perfectly timed to coincide with the publication of X v Y Ltd UKEAT/0261/17/JOJ, where Slade J in the Employment Appeal Tribunal, held that an Employment Judge had erred in interpreting an email in respect of which legal advice privilege was claimed. She found that the advice in the email was given for the purpose of facilitating an iniquity. In her view, there was a strong case that the email gave advice on how to cloak what would otherwise be a disability discrimination dismissal as a dismissal for redundancy.
The case is a little difficult to interpret because we don’t have the benefit of the email yet (the case will go to a full hearing if it doesn’t settle). In broad terms, the email showed legal advice about how an individual who they wanted to fire for poor performance, but would struggle to do so because of the risk of disability discrimination, could be made redundant because of a serendipitous restructuring. On the judge’s interpretation, it has solutions-focused but ethically neutered lawyering written all over it. There was no apparent attempt in the email to advise on conducting the exercise unfairly. I set out a fuller consideration of judgment below the line.
For now, let us focus on what the judge concludes:
Advising that certain course of action runs a risk of being held unlawful whether the illegality be breach of contract, discrimination or even breach of fiduciary duty is not in itself iniquitous. Giving advice that a certain course of action which may be unlawful could be taken shades into iniquity. Advising how a fraud could be perpetrated as in Crescent Farms would clearly be an iniquity, as would advice on how to breach a fiduciary duty as in Gamlen. However, advising termination which would be a breach of a notice provision in an employee’s contract may well not be relevant conduct usefully characterised by Norris J in BBGP Ltd paragraph 62 as going:
“… beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy. …”
…advice which could be construed as advice to commit the tort of discrimination, depending on the facts, may be different in degree from advice on how commit fraud or breach of fiduciary duty. However, depending on the facts the discrimination advised may be so unconscionable as to bring it into the category of conduct which is entirely contrary to public policy. In this respect I differ from the decision of the EJ in which he held at paragraph 85 that it goes too far to elevate the tort of discrimination “to the status required to disapply legal advice privilege”. That may be an appropriate view in many cases but the facts of some discrimination may take advice on how to commit it into the category of advice which is contrary to public policy.
If the advice in the email of 29 April 2016 had gone no further than “you may select the Claimant, an employee with a disability, for redundancy but you run the risk of a claim by him” in my judgment it would not have reached the high threshold required to disapply legal advice privilege. …In my judgment, properly interpreted, the email of 29 April 2016 records advice on how to cloak as dismissal for redundancy dismissal of the Claimant for making complaints of disability discrimination and for asking for reasonable adjustments which will continue if there is “ongoing employment”. In my judgment a strong prima facie case has been established that what is advised is not only an attempted deception of the Claimant but also, if persisted in, deception of an Employment Tribunal in likely and anticipated legal proceedings. The email does not record any advice on neutral selection criteria for redundancy. It concentrates exclusively on how the redundancy can be used to rid the Respondent of ongoing allegations of discrimination by the Claimant and of underperformance which he stated are related to his disability and failure to make reasonable adjustments. Whether the legal advice given was in fact to perpetrate or in furtherance of iniquity will be for the Employment Tribunal hearing the claim to which it relates to decide.
If one frames the case in the context of Crimegirls tweet it is fairly obvious that this was sufficiently serious to count as “iniquity”. Redundancy was, on the evidence as we have it, manufactured to defeat the claimant. I note in passing, and with interest, that most lawyers commenting on the case have focused on the obvious confidentiality problem of talking about cases in the pub. They are either less concerned by, or unwilling to discuss publicly, the iniquitous use of legal advice. There are a variety of possible explanations. One reason might be that the case shows how easy it would have been to give the same advice but in a more balanced way that would have made it less obvious that the advice was a cloak against an allegation of (as yet unproved) discrimination.
Another might be that lawyers don’t really understand the true rationale of legal professional privilege. To her credit, Slade J emphasises the public policy principles behind legal professional privilege. Importantly, she goes beyond the often made point that such privilege is necessary, “for a client to be open and frank with their legal advisors” to emphasise why this is necessary. It is this latter point which is so often forgotten when practitioners rush to defend legal professional privilege or forget the situations in which it is waived or lost. She cites Bingham LJ in Ventouris v Mountain [1991] 1 WLR 607:
“The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege …” (my emphasis)
Advice sought or given for the purpose of effecting iniquity is not privileged because of the words in bold. As the judgment makes plain it is sometimes referred to as the crime-fraud exception. It includes, “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances” and “fraud” in this context is used “in a relatively wide sense”. Whilst also requiring that, “what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards”, because, “legal professional privilege is a very necessary thing and is not lightly to be overthrown.” Fraud has included, “a scheme to effect transactions at an undervalue”; “deliberate misrepresentation for the purpose of securing a mortgage advance”; “making a disposition with the intention of defeating a spouse’s claim for financial relief” and, “establishment by employees, in breach of a duty of fidelity to their employer, of a rival business”. These examples are much more serious than merely mounting hopeless or exaggerated claims, so the protection the policy objective by lifting privilege for iniquity is modest. And in this case, we see what the judge seems to see the re-characterisation of this employees dismissal as something dishonest in intent. An interesting question is whether the courts might be tempted to draw a link between the iniquity test and the integrity test set out in Wingate and Evans recently. Whether they do or not, the case is a useful reminder that legal professional privilege should not be a cloak by which clients (and if they choose their lawyers) can indulge in manufacturing claims and defences. It is interesting that what sometimes appears easier to see in criminal defence is seen as less clear in offices dealing with the desires of corporations.
An interesting footnote is that the parties are anonymous in this report. This may be to protect the identity of the disabled claimant might not hold should the case go to a full hearing. But it also has the benefit of protecting the lawyers involved, some of whom appear to have breached their professional ethics in two senses: one through revealing confidential information in a public place and another through, potentially, having breached a broader raft of professional principles. There may be a further breach if any of them continue to act because the anonymity protects them and they will now struggle to advise on settlement independently. They have an interest in settling which extends beyond the interest of their client or employer organisation: they get to keep their iniquitous conduct and loose talk in the pub secret.
A fuller consideration of the case should you be interested…
The email in question was, “from a member of the Respondent’s legal department to a solicitor seconded to the Respondent,” forwarded anonymously to the claimant who had also overheard a conversation in a pub from unidentified people au fait with the respondent’s legal strategy. The claim itself alleged disability discrimination and victimisation against a lawyer who’d been employed by the respondent for 27 years. He had Type 2 Diabetes and Obstructive Sleep Apnoea. And it is reported that from 2011 there were ongoing concerns about the Claimant’s performance at work. The claimant was made redundant.
The pub conversation was claimed to be subject to legal professional privilege. It was reported as being between two professionally – dressed women in their 30s or 40s. One mentioned dealing with a disability discrimination complaint by a senior lawyer at Y Ltd. She had reportedly said, “that there was a good opportunity to manage X out by severance or redundancy as there was a big reorganisation underway as a result of Y’s acquisition of another company.”
The Claimant relied on this conversation to interpret the anonymously sent email. The email was marked “Legally Privileged and Confidential”. It was sent by, “A, a senior lawyer, to B, a lawyer assigned to the Respondent.” The judge declined to read out the full text because legal advice privilege is claimed. At first instance, the Claimant asserted, “the e-mail contains advice on how to commit unlawful victimisation by seeking to use (and ultimately using) the redundancy/restructuring programme as a cloak to dismiss the Claimant.” The Respondent denied this was the meaning of the email and also denied that, even if it was, it fell within the ambit of iniquity.
The claimant was alleging that, “seeking to disguise an act of victimisation or discrimination as a dismissal for redundancy [was a] …deceit falling within the iniquity principle.” Interestingly, part of the respondent’s case was this was the kind of advice employment lawyers gave every day, and was not sufficiently serious or iniquitous to allow what was a serious incursion into legal advice privilege.
The EJ held for the respondent that the email did not reveal unlawful victimisation or a cloak:
“It is legal advice aimed and [sic] avoiding rather than evading possible legal action (Bullivant) in place of simply doing nothing in fear that the Claimant might take further legal action. This is what lawyers do day in day out and the giving of legal advice does not as a matter of course raise iniquity.”
And similarly, the judge at first instance also found against the claimant in respect of iniquity saying, “Whilst of course protection against discrimination and victimisation is important, it is a tort, and to elevate it to the status required to disapply legal advice privilege, goes too far.” The conversation in the pub remained privileged partly because it would only reveal a tort, even if even if discrimination is a tort to be viewed seriously.
Slade J disagreed comprehensively with this analysis.
She found a strong prima facie case that the email recorded advice for the purpose of victimising or discriminating against the Claimant. A strong prima facie case is the relatively high test necessarily to be part of the legal professional privilege to be lifted:
In the email A was relaying to B legal advice which she had given to C, a senior manager. The advice was how to seize the opportunity of a redundancy exercise to dismiss the Claimant. The redundancy exercise, if done carefully, could be used as a cloak to achieve this. Mr Halliday submitted that the Respondent had already formed a wish to terminate the employment of the Claimant.
Whilst the employment judge was right not to use the pub conversation to interpret the email, the interpretation of the email at first instance was wrong. The email was specifically addressed at finding a way out of dismissing the claimant by other means (for poor performance, where the firm risked losing).
The key question in the interpretation of the email is whether the advice recorded simply points out the risk of claims if the Claimant were selected for redundancy or whether it goes further and advises that the redundancy can be used as a cloak for dismissing the Claimant who was troublesome to the Respondent because of his continuing allegations of disability discrimination.
If the Claimant were to be dismissed by proper application of a redundancy selection procedure there would have been no need to write that “there is at least a wider reorganisation and process at play that we could put this into the context of”. Further, in a genuine redundancy dismissal, there would be no need to say “Otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution”. In my judgment these passages record advice that the redundancy situation can be used as a cloak for dismissing the Claimant for other reasons.
…In my judgment the email of 29 April 2016 is to be interpreted as recording legal advice that the genuine redundancy exercise could be used as a cloak to dismiss the Claimant to avoid his continuing complaints and difficulties with his employment which were said by him to be related to his disability.
The Citizens UK case [2018] EWCA CIV 1812 raises interesting issues about government lawyers and their political masters, but more so, for me having read the judgment, about how judges deal with potential misconduct by litigants and, perhaps, their lawyers.
The case arises out of Frances’ decision to close the Calais camp known as the Jungle. Several hundred unaccompanied minors, many with links to UK residents that might entitle them to come to the UK, resided there. In difficult, high-pressure circumstances (both practically perhaps and certainly politically) UK and French authorities cooperated on a process of expediting consideration of the children’s eligibility to be transferred to the UK. As part of this process, the UK provided a spreadsheet summarising the decision, usually using one or two words. The French authorities could then use that summary to convey the decision to the children. Unsurprisingly, those summaries were often inadequate as a vehicle for conveying the actual basis of the decision.
This process was judicially reviewed and prior to coming to the Court of Appeal evidence was disclosed that, in the eyes of the judges hearing the appeal, revealed “fundamental unfairness in the expedited process.” Crucially for this blog the Secretary of State (the Home Secretary, but essentially the civil servants working under her) was also found to have breached her duty of candour and cooperation with the courts in judicial review proceedings.
At first instance, the judge understood that (in holding that the process was lawful) not giving reasons as to why children would not be transferred to the UK was, “a requirement of the French authorities; and the terse spreadsheet information was a consequence of that requirement and of the pressures of the operation” (per Singh LJ, who gave the leading judgment of the Court of Appeal).
This was a patent falsehood, or at best a half-truth, “…in fact it was not the French authorities who insisted that there should be only sparse reasons. They requested that more reasons be provided to the children who had not been accepted for transfer initially but it was officials of the Secretary of State who insisted that no more reasons should be given and they did so in part because that would create the risk of legal challenge.” And, there were more detailed reasons recorded in the departments paperwork, which could have been conveyed to the French but were not so time pressure did not inhibit giving better reasons.
As Singh LJ puts it:
The important point for present purposes is …that it was not impossible or even difficult for some brief reasons …to be conveyed to the children affected at the relevant time. If they had been, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration [for asylum under a more formal route than the expedited procedure].
In considering the duty of candour and co-operation Singh LJ points out:
(1) Disclosure — in the sense of disclosure of documents — is not automatic in judicial review proceedings. …
(2) One of the reasons …is that there is a different and very important duty which is imposed on public authorities: the duty of candour and co-operation with the court. This is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties on public authorities are fulfilled.
(3) The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. As I said in Hoareau at para. 20
“… It is the function of the public authority itself to draw the Court’s attention to relevant matters; as Mr Beal [leading counsel for the Secretary of State in that case] put it at the hearing before us, to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”
(4) The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for “spin”.
(5) The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.
As an example, the evidence filed on behalf of the Secretary of State in the High Court included,
“a witness statement by [the]…acting head of the European Intake Unit….
…[She] noted that criticism had been made that individual written decisions were not given to the children affected; and that the decisions were often boiled down to one word or phrase. She responded in the following way, at para. 85
“As I have explained the SSHD was working under extreme pressure to try and process as many children as she could. In these circumstances I do not see how the Claimant [Citizens UK] could have expected the SSHD’s officials to provide detailed decision letters in respect of each child. In any event I would say that in some of the cases she mentions a one word reason or phrase would suffice to explain the position. For example she criticises the refusal of cases using one word `cousin’. As I have explained above, where a child only has a cousin or more distant relative in the UK this does not suffice under the Dublin III Regulation to determine the UK as the relevant Member State with responsibility for examining the child’s asylum claim. I do not understand why any further elaboration would be needed.”
It is worth noting also that, “…no contemporaneous materials relating to the development or operation of the expedited process[es]… were disclosed with the Secretary of State’s witness evidence in the cases before that Tribunal. [The appellants claim]…requests for disclosure of contemporaneous records, communications and notes were repeatedly made by [those challenging the SOS in the proceedings being appealed].” And were declined.
That further evidence when it was disclosed revealed in particular that the French authorities requested reasons for decisions. These indicated clear reasons for doing so that anyone, and particularly anyone of the sophistication of senior civil servants, would have no difficulty at all in understanding. And that the real reason for not disclosing more detailed reasons to the French was the risk of legal challenge that these might provoke. Part of the reason for this is explained in evidence to the Court of Appeal by Head of the EU and International Asylum Policy at the Home Office at the relevant times:
“It is true to say that the French expressed concern about the level of detail provided in the reasons once they had considered this. … In my view, this was a change of position from earlier discussions …
…An important objective for the SSHD in supporting the French-led operation to clear the Calais camp was to not undermine wider asylum policy. As set out in my first witness statement, this was a one-off operation, from which the SSHD envisaged no ongoing obligations beyond those she was already party to.”
…In sending officials to assess individuals in France in such unique circumstances, the SSHD sought legal advice from her in-house legal advisers.”
Stressing a desire not to waive legal professional privilege he provides this gnomic response:
“… I can say it concerned whether there would be risks to the SSHD’s wider asylum policy in giving detailed reasons to individuals who were outside the United Kingdom and who had not made an application under the Immigration Rules or UK legislation to enter the United Kingdom.” “I hope this explains in more detail why the SSHD took the decision to keep the level of detail to a minimum….”
In responding to a predicted, concern “that the SSHD did not make the above sufficiently clear in her evidence before the Administrative Court ….The SSHD’s officials were under very tight time constraints to prepare the SSHD’s evidence in these proceedings at approximately the same time as having to deal with ….”the Dubs amendment”) … The challenge made by Citizens UK was very wide-ranging and indeed changed substantially in nature by the time they were granted permission by the Court …. I do recognise however that, notwithstanding the above, the SSHD should have made the position that she had received legal advice on the issue of the level of detail to provide the French authorities clear and I do so now with apologies to the Court.” The acting head of the EU Intake Unit in a separate statement says, “I am content my account of events is accurate.”
What is not explained is why a misleading explanation was given. One might also wonder if it is, itself, candid.
Relevant email correspondence (not disclosed at first instance) between a fourth government witness (a Mr Bryson) and the French indicates a rather more lucidly what went on:
152. On 8 December 2016 at 15.20 an email was sent by Mr Bryson to various officials at the Home Office summarising what M. Valat had conveyed to him
“… With regard to those minors that are going to remain in France, Valat said that it was important that they were able to explain to each and every minor why they were not going to the UK. He therefore asked for a list of rejections, by CAOMI with the reasons for refusal, to enable the French authorities to try to explain to the minors what their next steps might be. They did not want anything detailed and suggested something as straightforward as: age assessment (I suggest we clarify where there has been a self-declared over 18); unable to contact family in UK; family unable to receive the minor (e.g. doesn’t meet the conditions); family doesn’t want to receive the minor; and, no UK family. …”
…
154. [When challenging the terse spreadsheet reasons given by the UK] M. Valat said to Mr Bryson
“To be clear, these lists are of no use to us. They only confirm that you have not accepted the young people who were not transferred. Everyone had already understood that
What we need is the precise reason for the rejections, in particular for those who indicated that they could be transferred to the UK under Dublin
We made this request last week, and it seems to me that we had agreed on that basis
If there are grounds for these refusals, we have a collective interest in reporting them to the young people without delay. That will prevent futile requests for re-examination
Otherwise, the young people especially will not understand, we will not be able to explain it to them and the situation will quickly become unmanageable for you as well as for us
Therefore, I insist, we really need the complete lists by tomorrow morning.”
Some of the correspondence which ensued was copied to the senior civil servants who’s evidence is discussed above, and the implication is (although this is not absolutely clear exactly who knew precisely what from the judgment) that everyone is aware that the reason for not giving reasons is. To underline it, from another email: “Given what the lawyers have said, we are unlikely to be able to say more than the following: Dublin ‘the case of X was not accepted because we were unable to verify the claimed family connection.’ … Anything more could open us up to legal challenge. …”
Another part of the reason was emailed as follows, “We do not want to see all the children we previously identified as ineligible being referred to us again.” Part of the practical intent was therefore to prevent children making legitimate (although not necessarily ultimately successful) applications for asylum under the formal procedure. Suggesting the French wanted no reasons or that more detailed reasons could not be given for practical reasons is, on the face of this, misleading.
As Singh LH concludes:
168. In my view, there was a serious breach of the duty of candour and co-operation in the present proceedings. An incomplete picture was left in the mind of the reasonable reader, including Soole J, as a result of the evidence that was filed below. I dare say this was not deliberate. I note in this context that Ms Farman did file further evidence relating to the filter process in the Upper Tribunal in the case of FH, which suggests that there was no deliberate attempt to suppress these matters. There is no reason to think that there was bad faith. Nevertheless, the effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court
169. Although one of the reasons which has been given to explain this is that there was time pressure, I note that at no time, either before Soole J gave judgment in September 2017 (having heard the case in May) or subsequently until May 2018 was there any attempt made on behalf of the Secretary of State to file further evidence. That had to be done with only a few weeks to go before the hearing of these appeals in the middle of June. It also seems to have been done only once certain matters had become known (by chance it would seem) in an unrelated case: FH in the Upper Tribunal in early May 2018. In that sense it is purely by chance that this Court has now come to learn of these important matters, including what was said in contemporaneous emails in December 2016 and January 2017
170. The most serious omission, in my view, was the failure by those presenting evidence on behalf of the Secretary of State to inform the High Court that the reason why the reasons for an adverse decision in the expedited process were “sparse” (to use Soole J’s phrase) was not because of the urgency nor because the French authorities demanded that (as he thought and said in his judgment) but because the British authorities did not wish to give more reasons and that this was because of a perceived risk of legal challenge to the decisions
On the reading of the facts as they are set out in the judgment, at least following my rudimentary analysis, it may be that the failure to disclose was not done in bad faith but there is plenty to suggest it may (I emphasise may) have been done with an intention to knowingly or recklessly mislead the court. There is enough evidence to suggest that this merits proper investigation either as misconduct by the civil servants involved or as professional misconduct by the lawyers. Truth in public life and in the administration of justice and government is important. The lawyers must not knowingly or recklessly mislead the court and they must protect the rule of law and administration of justice. Whilst the lawyers advising on the expedited process and those handling the challenge may well be separate it seems unlikely that those handling the challenge were unaware of the fact that legal advice was inhibiting disclosure of reasons to the French. They may well have been on notice that this was the real, main, or an important reason why the French were not getting better reasons. If they were not, they should have been. They do not need to disclose such advice to prevent the court being misled; and privilege is not an excuse for misleading the court if they are aware of the risk.
On the other hand, it may be that the civil servants and lawyers simply misunderstood the basis of the decisions that were made as regards the French. But we should not foreclose further scrutiny on the basis that there was a cock-up rather than a conspiracy (particularly as both the lawyers and civil servants would be wise to learn from their own cock-ups). I should note also that Singh LJ was not sufficiently worried by the conduct of the Secretary of State to award costs on indemnity basis. And, Lady Justice Asplin, says, “I too consider the breach of the duty of candour in this case, whilst not deliberate, to have been very serious.” Serious but accidental breaches of the duty of candour may raise issues of professional competence and capacity too. Lord Justice Hickinbottom is a little more circumspect. He says, “Whilst on the evidence I am not satisfied that the breach here was deliberate, in my view it was nevertheless a serious breach.”
It is perhaps not surprising that the Court of Appeal is unwilling to go further. Whether the conduct was knowing or reckless is not their primary concern, and evidence by affidavit is not the best vehicle to pursue the issue. That said, rather more than a timely reminder from the Court of Appeal to take disclosure seriously, however, might well be needed.
The House of Commons Women and Equalities Committee report on Sexual harassment in the workplace, has been published. To my eye it looks like an excellent piece of work: takes a wide-ranging, purposeful, look at the problems of sexual harassment in the workplace. It calls for wide-ranging reform, including:
And, most germane to this blog, “to clean up the use of non-disclosure agreements (NDAs)”, including by, “requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses.”
Given my own submission to the Committee, it was gratifying to see the proportionate emphasis on professional ethics issues. They dealt diplomatically with Mark Mansell, which I thought was well-judged, and more forcefully with the SRA, with the central conclusion being,
“We have been particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs.”
And that,
“The use of non-disclosure agreements (NDAs) must be better controlled and regulated to ensure that they are not used unethically in cases where sexual harassment is alleged. It is vital that employees have access to information about the responsible and legal use of confidentiality clauses and that lawyers are held to account for using or attempting to use such clauses in an unethical way. We are encouraged that the SRA has issued guidance on reporting sexual harassment and the use of NDAs in sexual harassment cases and hope that the Bar Standards Board and the Bar Council also issue guidance. However, the regulators must also demonstrate that members of the legal profession will face serious sanctions if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment.”
More specifically, they suggest that the, “[u]se of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements.” I’ll leave a discussion of what I think any rule should look like for another day. It will be interesting to see how the SRA and the BSB respond. The Committee should call them back to tell them how they have responded whilst the new SRA Code of Conduct is in draft.
I end on a different note. The Employment Law Association has also published a document on Sexual Harassment and the Law this week. It reads a bit like it should have been a submission to the Committee, although perhaps it is directed at Government as the relevant Minister digests the Committee’s suggestions. I wanted to emphasise one positive emerging from that report. Prompted by Zelda Perkins, the SRA’s Warning Notice, and perhaps now to be reinforced by the Committee’s report. It suggests some soul-searching, at least among the membership:
Evidence given by Zelda Perkins to the Women & Equalities Select Committee has prompted some considerable re-focus on ethics, specifically the way that solicitors’ conduct requirements interact with confidentiality provisions. At the time of writing, a ‘warning notice’ to solicitors has been issued by the SRA and guidance aimed at the public and lawyers is the subject of consideration by the Law Society, SRA, ELA and other interested parties. Law firms, the SRA and the Law Society all help solicitors understand their ethical obligations. As a members’ association, ELA is not required to provide ethics training to members but has voluntarily included or referred to ethics in its training programme, to some extent. 81% of ELA’s survey respondents supported inclusion of ethics training focused specifically on employment lawyers in ELA’s programme.
News that Boris Becker has claimed diplomatic immunity in bankruptcy proceedings – https://www.ft.com/content/551ce878-70b4-11e8-92d3-6c13e5c92914 – prompts an interesting observation from well known lawyer Mark Stephens:
This is “absolutely being used as a tactic…. If you commit a crime or are party to serious civil litigation, it’s a good idea to claim you’re a diplomat. You can go down and buy investor passports or diplomatic posts from all kinds of islands and investor locations. So you have billionaires and influential people going to these locations and buying themselves diplomatic immunity.”
The comment suggests to me that lawyers may be advising their clients to buy and assert diplomatic status where they have no plausible claim to it.
To be clear Mark does not explicitly implicate lawyers, but they would be one obvious source of such advice. He goes on to say the tactic is, “morally repugnant behaviour that, while legally permissible, runs against the very notions of fair play that we expect of diplomats.” To my mind, if it does involve lawyers, they risk breaches of professional conduct rules (one cannot assert a claim on behalf of a client to which is unfounded). Legal permissability must also be doubted (perverting the course of justice again anyone?). The moral repugnance comment also applies to the ‘diplomats’ professional enablers, with the potential to implicate professional integrity.
Time for those involved to take a cold, post match shower.
The Bar Standard Board’s training and education plans may provide an example of what the SRA loses by putting all its regulatory money on the regulation of competence through outcomes (and the markets that will swirl around such provision). In brute terms, the SRA professes only to regulate solicitor outcomes and leaves providers to decide how to do that. The means of control is the discipline of central assessment. Educationalists complain that you cannot assess everything and so something, something considerable perhaps is lost.
The BSB’s more measured, incremental reforms contain some welcome steps (including ethics assessment after practice-based experience). Also, whilst seeking to increase the flexibility what and how providers can provide authorised training, including the potential to split the BPTC and changes to pupillage, they nonetheless propose mandatory requirements on providers which include a very interesting section on diversity (para 46 onwards). BPTC and pupillage providers must demonstrate the following to be authorised:
46.1 Commitment to Equality and Diversity at organisational level, including a specific strategic commitment to –
- increasing diversity at the Bar;
- taking active steps to change the public perception of the Bar as an elitist profession, for example through public outreach events.
46.2. A clear strategy as to how the components(s) and/or pathway provided will be made accessible and how prospective barristers will be able to complete their education and training and achieve the best outcome that they are capable of, enabling them to demonstrate the Competences to at least the Threshold Standard.
46.3. A set of targeted policies and procedures flowing from that strategy relating to access, retention, attainment and progression, including –
- to encourage those who are currently under-represented at the Bar to consider it as a career for example by the provision of information, guidance and advice, outreach activities in schools and the wider community;
- policies promoting open and fair recruitment; aiming to address traditional biases including through flexible approaches to considering prior learning and experience; selection processes that seek to eliminate bias around aspects such as socio-economic background; taking into account external constraints on international applicants such as visas and immigration;
- how prospective barristers will be supported to enable them to engage with, reflect on and complete their Bar training (for example feedback mechanisms, support and mentoring);
- how the education and training enables prospective barristers to progress to and from pupillage or other forms of work-based learning and to the legal profession, the workplace or further study (for example a clear indication of what Competences they will have achieved during and on completion of each component, and what routes are then available to them).
46.4. Periodic evaluation of this strategic approach and the effectiveness of the policies and procedures using quantifiable measures and data analysis.
The SRA have surrendered the ability to introduce such requirements, hoping (I think forlornly) that information, markets and lower costs courses (if they materialise) will do the diversity work for them. It is a minimalistic, simple approach to regulating an issue which is both complicated and entrenched. I don’t think it will work. The BSB’s approach may not work either, and much will depend on how vigorously the mandatory requirements are interpreted and developed. At first blush, though, they stand a stronger chance of success, and if the BSB continues to focus on the issue and work out how to make progress with providers the chances of success increase. The SRA will face the question, after the big bang and (importantly) years of waiting to see if it works – then what? And in the meantime? A policy lever is surrendered by shifting regulation so dominated by central assessment.
