Mt Justice Tugendhat’s judgment in Cruddas vs Calvert (and others including the Sunday Times)  EWHC 2298 (QB) raises some interesting legal ethics points. Let me very briefly outline the relevant facts (and encourage you to read the case if you have the time).
Here Mr Cruddas alleged malicious falsehood and defamation against the journalists and their paper the Sunday Times. In defending that case they relied solely on the defence that the allegations that had been made in the stories were true. Some of the relevant allegations were that, “the claimant corruptly offered for sale the opportunity to influence government policy… [and did so] …even though he knew …[his actions were] in breach of the ban under UK electoral law” If I have understood it correctly, the Court of Appeal and judge determined that an imputation of criminal corruption could be read into the articles by reasonable readers.
In such circumstances the lawyers for the defendants are in the position of having to prove allegations of serious misconduct. As the judge confines any direct remarks to one of the defendants’ barristers, I am going to confine my comments to the Bar Rules. A number of rules in the Bar’s Code of Conduct are relevant. I highlight the ones of most specific import:
701. A barrister:
(b) must not undertake any task which:
(ii) he does not have adequate time and opportunity to prepare for or perform; or
(iii) he cannot discharge within the time requested or otherwise within a reasonable time having regard to the pressure of other work;
708. A barrister when conducting proceedings in Court:
(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked;
(f) must not make a submission which he does not consider to be properly arguable;
(j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client’s case and appear to him to be supported by reasonable grounds.
Now, it must be the case that in seeking to make the case that the newspaper stories were true the Barrister had to allege misconduct at least (given the nature of the allegations being made it is at least arguable that allegations fall within the definition of fraud as conceived under the Code also). The tenor of the judgment is to suggest that there is no evidenced basis on which to mount the defence of truth. He does not go as far as to say the case is not properly arguable (at least on my reading), though that interpretation seems open. 708f may be alive, but it is not clear if it is kicking. The key paragraph of the judgment specifically relevant to the ethical questions is this one (para. 301):
The cross-examination of Mr Cruddas was as robust as it could be. Mr Cruddas found it offensive, and it was. He was strongly challenged on the truthfulness of his answers. Although Mr Rampton started by acknowledging that Mr Cruddas was a man of integrity, he made no allowance for that in his cross-examination. Mr Rampton, instructed late as he was, said that he had not found the time to look at the whole of the audio visual recording. He accepted that Mr Cruddas appeared sincere, but submitted that that was only an appearance.
And para. 303:
Mr Cruddas has suffered great personal distress, both directly, and through his family and the employees of his company. He has suffered public humiliation from the Prime Minister. He had a high standing in society, both for his business success and his charitable work, all of it earned by him personally through his own efforts, and from a disadvantaged start. The conduct of the Defendants in contesting the action both before and at the trial has been offensive.
He does not go into specifics on conduct before the trial sufficient to speculate here. However para. 301 does raise some interesting issues:
- Did Counsel for the defendants have ‘reasonable grounds’ for suggesting crime, fraud or misconduct? The Bar’s guidance on written allegations of fraud/misconduct cites Medcalf v Mardell (H.L.) where Lord Bingham, said that, “… the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations should properly be based upon it”. It is interesting to note in this regard that Counsel indicates he did not watch the whole of what appears to be the crucial recorded conversation. Whether there was an appropriate basis for Counsel to proceed to put the allegations is moot. To quote Lord Bingham again, “Counsel is bound to exercise an objective professional judgment whether it is in all circumstances proper to lend his name to the allegation”.
- The Medcalf test applied to written allegations of fraud/misconduct and the Judge’s remarks here concentrate on cross-examination. It may be that a court or professional regulator would employ a less onerous standard in relation to cross-examination. Concern might be lessened if we knew how late Counsel was instructed but heightened by the emphasis in the rules on needing to be properly prepared and on the need for Counsel to take personal responsibility for their cross-examination.
We do not know enough to form a more definitive judgment on these questions, but they are questions that would merit a proper answer. It is important to remember that one of the barrister’s obligations is to, “promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person”. That justifies robust cross-examination as to the truth in support of the journalist’s allegation but only, I think, if there are reasonable grounds which lead responsible counsel to conclude that serious allegations (as these undoubtedly were) can be properly based upon that material. There is no sign of material to support a reasonable grounds argument in the judgment, but that does not mean it does not exist. Equally, zealous advocacy is clearly not a trump card in these situations.
That the judge should refer to the cross-examination as “offensive” is indicative I think of significant judicial disquiet at the cross-examination. That he suggests the conduct in contesting case before and during the trial was offensive may also suggest that concern runs deeper. He certainly does not spare the blushes of some of the journalists involved. He may or may not intend the wider remarks to be read beyond approbation of the defendants themselves to include others in their legal team. We do not know.
The Defendants have, I believe, indicated an intention to appeal.