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 obtained relevant confidential information.

As to whether that power should be exercised, the question focused on whether there could be said to exist a reasonable lay apprehension that counsel’s own situation would have an adverse impact on the proper conduct of the proceedings and thereby whether there would be unfairness. The court should exercise caution having regard to the duties and obligations that rest on the shoulders of counsel.

It was correct that an opposing party might attempt to have an advocate removed for tactical reasons, and so the court should not too readily accede to the application by an opposing party for an advocate to be removed.

What was the background?

The appellant had been represented before a district judge by Ms Najma, of counsel, who had previously been a chartered legal executive. She had represented the appellant in immigration proceedings in that previous role. Macdonald J noted that the district judge had seen evidence of somewhat emotive terms used by Ms Najma since she became a barrister. These terms including her referring to the respondent as being a ‘bitter ex-wife’ and she had also threatened defamation proceedings against the respondent when there had been complaints about her to her regulatory body. Ms Najma had asserted that ‘the [respondent] had brought her to breaking point, caused her emotional distress and put her at risk of depression’.

The respondent had contended that Ms Najma would have information and knowledge which other counsel would not have about her and that she had shown concerning behaviour and attitudes against the respondent which would then lead to unfair cross-examination. The respondent said that Ms Najma should not represent the appellant but that other counsel should do so instead. The district judge had dealt with this issue at a separate hearing with detailed written and oral submissions from both parties.

It was submitted on behalf of the respondent at the appeal before Macdonald J that the nature of cross-examination had changed in recent years, with the references to the new Equal Treatment Bench Book and the Advocates’ Gateway and with new practice directions in respect of vulnerable witnesses.

What did the court decide?

Macdonald J found that none of the appellant’s five grounds of appeal stood up to scrutiny. The matters raised by the respondent in her skeleton argument and during oral submissions were largely adopted and endorsed. It was held that the district judge had applied the correct test and had focused on the fairness of the substantive proceedings. The weight to be applied to the various factors was a matter for the district judge. The district judge had properly noted the risk of tactical maneuvering by the respondent. While it was open to Ms Najma to make a complaint to the police about harassment by the respondent, the totality of the matters was such that the matters raised against the respondent by Ms Najma were serious. Additionally, the documents containing the assertions of Ms Najma had been put before the district judge by the appellant. Ms Najma had also acted for the appellant in his immigration application when she was a chartered legal executive and she had been communicating regularly with the respondent which led to a relationship of de facto client and professional adviser.

Among other things, the respondent being cross-examined by counsel who had that information would lead to a lay apprehension of unfairness. Macdonald J held that the court at first instance was correct to conclude that there were exceptional reasons why counsel should be removed and that Ms Najma should not act for the appellant.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.