How the court will decide whether to prevent a barrister acting for their client

Family analysis: Barristers have to represent their clients fearlessly. The cab rank rule applies, and so they do not choose their cases. Nazmun Ismail, barrister at Central Chambers, King Street, Manchester, and counsel for the respondent, analyses the decision in Ahmed v Iqbal [2020] EWHC 2666 (Fam), [2020] All ER (D) 54 (Oct), where a district judge had made an order that counsel (Ms Najma) should not act for the father (the appellant) in family law proceedings because of her past dealings and conduct in respect of the mother (the respondent). The appellant appealed against the district judge’s order preventing Ms Najma from acting for him and the appeal was heard by Mr Justice Macdonald. The appeal was dismissed and a request to anonymise the name of counsel was refused when considering the importance of the principle of open justice.  

This important case assists with the principles to be applied when considering whether the court can intervene to prevent counsel from acting and whether it should interfere with right of litigants to have their choice of counsel. The court clearly found that, in effect, rights under Article 6 of the European Convention on Human Rights are not absolute when it comes to the choice of counsel, even when the cab rank principle is applied and even when counsel’s core duties require them to ‘promote fearlessly and by all proper and lawful means the client’s best interests’ (per the Bar Standards Board Code of Conduct).

What are the practical implications of this case?

It is not usual for the court or for opposing parties to seek to restrict a litigant’s choice of counsel. In Geveran Trading Co Ltd v Skjevesland [2002] EWCA Civ 1567, [2002] All ER (D) 448 (Oct), the Court of Appeal (at para [39]) made it clear in a bankruptcy case that the court has the power, in exceptional circumstances, to prevent an advocate acting for a party and not only in circumstances where, as in that case, the advocate had obtain