An ‘extremely rare’ example of the court directing that counsel should not continue to act for a party: Ahmed v Iqbal  EWHC 2666 (Fam)
22nd October 2020
Henrietta Boyle, Barrister at 1 Hare Court
MacDonald J heard an appeal against an order which prohibited the barrister who was acting for the father in Children Act proceedings from accepting further instructions in those proceedings.
In December 2016, the appellant father had made an immigration application for leave to remain in the UK, and Ms Sima Najma had acted for him in relation to that application. At that time, she was working for a solicitors’ firm as a Chartered Legal Executive. She was given permission by the father to communicate directly with the respondent mother in her capacity as the sponsor of the father’s immigration application, because the father had a limited command of English. The mother and Ms Najma communicated ‘directly and extensively’ between August 2016 and April 2017, when the parties separated . It was clear from the communications before the judge at first instance, District Judge Carr (“the judge”), that the mother and Ms Najma had engaged in correspondence which included Ms Najma providing the mother with informal advice on the immigration process, and the mother confiding in Ms Najma matters which were personal to the parties.
After the parties’ separation, the father issued an application for a child arrangements order in respect of the parties’ daughter. Shortly after those proceedings had commenced, the mother made a complaint of professional misconduct against Ms Najma to the Chartered Institute of Legal Executives (“CILEx”) regarding Ms Najma’s alleged conduct during the course of the father’s immigration application.
The mother’s complaint to CILEx amounted to allegations that Ms Najma had acted in a manner that might amount to professional misconduct during her dealings with the mother. On 20 December 2018, the CILEx Professional Conduct Panel decided to refer two allegations against Ms Najma to the Disciplinary Tribunal, having concluded that there was sufficient evidence to prove, on the balance of probabilities, that Ms Najma had not maintained high standards of professional and personal conduct. The matter was then passed to an investigation officer to prepare a file for the Disciplinary Tribunal. Following further investigation by the investigation officer, on 29 April 2019 CILEx Regulation decided to withdraw the complaints against Ms Najma from referral to the Disciplinary Tribunal, because the officer had reached the conclusion that there was insufficient evidence to prove the allegations.
However, on 20 March 2019 the mother had sent an email to Ms Najma’s chambers that made further allegations against her. The mother said that the Bar Standards Board (“BSB”) also had an open complaint about Ms Najma. In response, Ms Najma herself sent an email to the mother on the same day, and also made a complaint of harassment to the police. The father’s statement, dated 15 July 2019, exhibited Ms Najma’s communications with the mother and the police.
On 11 December 2019, the mother issued an application for an order that Ms Najma be prohibited from accepting the father’s instructions in the children proceedings. In her statement of 7 January 2020, the mother alleged that Ms Najma had fabricated evidence in order to avoid sanction by CILEx. She also contended that Ms Najma was using the case to gain revenge against her for making a complaint to CILEx, and later to the BSB. She said that Ms Najma had reported her to the police in order to weaken her position in the children proceedings.
During the hearing of the mother’s application before the judge, Ms Najma acted for the father.
In summary, the mother’s position was that the father was using the hostility between the mother and Ms Najma as part of his case, with evidence supplied to him by Ms Najma. The father’s position was that the mother’s application was a tactical move to thwart his application.
Ultimately, the judge concluded that the balance fell in favour of directing that Ms Najma should not represent the father in the children proceedings. He said that although Ms Najma was ‘clearly upset’ by the allegations made by the mother, ‘[t]he making of a complaint against a professional in the Family Court setting is part of the experience of all those who appear there, whether they be a judge, advocate or Cafcass officer. The reaction of professionals should be one of an objective and dispassionate rebuttal’ . The judge thought that the reaction of Ms Najma ‘went beyond mere rebuttal and became a highly personalised response which would reasonably be regarded as inconsistent with the retention of the requisite objective independence’ . There was ‘a real risk that the acrimony between counsel and the mother threatens to become an issue in the trial which will divert the focus from the central issue which is the welfare of the child’ .
The father then appealed the judge’s decision.
The judge had drawn the principles that he applied from the Court of Appeal decision in Skjevesland v Geveran Trading Co Ltd  EWCA Civ 1567. That case dealt with a slightly different situation to the one facing the judge, in that it involved ‘a retrospective examination of the position of counsel in concluded proceedings rather than a prospective examination of the position of counsel in ongoing proceedings’ . However, MacDonald J noted that the Court of Appeal in Gerevan considered the position of counsel generally, allowing the judge rightly to conclude that the principles of that case applied to this case.
In Gerevan, Arden LJ (as she then was) made clear that the court has power, in exceptional circumstances, to prevent an advocate from acting for a party, and not only in circumstances where that advocate has obtained relevant confidential information. It was clear that one of the situations contemplated by the Court of Appeal which might result in a real risk of counsel’s continued participation leading to a situation where the order made at trial would have to be set aside on appeal is where counsel’s continued participation would lead to a reasonable lay apprehension of unfairness. It is not necessary to show that unfairness will actually result, in circumstances where justice must not only be done, but be seen to be done.
The Court of Appeal further emphasised in Gerevan that the court should exercise caution, having regard to the heavy professional duties and obligations that rest on the shoulders of counsel.
Decision on appeal
MacDonald J was satisfied that the appeal should be dismissed. He responded to each of the five grounds of appeal in turn.
The judge erred in law by treating the dictum that justice must not only be done but be seen to be done as a decisive or strongly determinative factor, and by applying the legal test for bias
MacDonald J considered that the judge applied the correct legal test. The Court of Appeal made clear in Gerevan that one of the situations which might result in a real risk of counsel’s continued participation leading to a situation where the order made at trial would have to be set aside on appeal is where counsel’s continued participation would lead to a reasonable lay apprehension of unfairness. That was the question before the judge in this case. Although the judge had not set out a detailed discussion of the legal principles he applied, ‘a reading of the judgment in its entirety demonstrates that the learned Judge approached the legal test in this case correctly and with the appropriate level of caution’ . The judge had correctly identified that the court’s focus was on the fairness of the substantive proceedings, and he had formulated the test in accordance with Gerevan as one of a reasonable lay apprehension of unfairness.
It was clear that the judge had not formulated the test as one of a reasonable lay apprehension of bias, nor had he treated the maxim that justice must not only be done but be seen to be done as a decisive or strongly determinative factor.
The judge erred in failing to give adequate weight to the potential for the mother to adopt a tactical position amounting to an abuse of process
The judge did not err in this way. The judge had expressly recognised in his judgment that this potential on the part of the mother was a risk in applications of this nature, and had taken into account the risk of tactical manoeuvring amounting to an abuse of process. The judge’s conclusion was that the question of whether the mother’s conduct amounted to tactical manoeuvring was secondary to the question of whether that conduct gave rise to a reasonable lay apprehension of unfairness, given Ms Najma’s response to her conduct. He was entitled to reach that conclusion on the evidence before him, and to evaluate the weight to be attached to the issue of tactics accordingly.
The judge placed undue weight on Ms Najma’s response to the behaviour of the mother
MacDonald J thought that the judge was entitled to consider that the statements made by Ms Najma, and relied upon by the father as evidence in the family proceedings, ‘went beyond an effort to dispassionately rebut the mother’s complaints and criticisms in order to maintain fidelity to the cab rank rule and to advance her duty to fearlessly advance the interests of her client’ . He was satisfied that the judge could not have been said to have been wrong to have attached the weight he did to elements of Ms Najma’s reaction to the mother’s conduct. Among other things, Ms Najma had asserted that the mother was a ‘bitter ex-wife’, had said that the mother was a ‘very controlling and paranoid person’ who had fabricated allegations, and had threatened defamation proceedings against the mother.
The judge placed undue weight on the potential for difficulties to arise in cross examination of the mother by Ms Najma
MacDonald J considered that the judge could not be said to have been wrong in reaching the conclusion that the cross examination of the mother by Ms Najma would give rise to a reasonable lay apprehension of unfairness on the part of the mother, in circumstances where, whether or not the mother’s conduct was reprehensible, the cross examination of her would be by an advocate who was ‘inextricably bound up in the case, and who may not only be putting her client’s case but also her own’ . That this was a conclusion that was open to the judge on the evidence could be seen simply from the number of times that Ms Najma featured as an issue between the parties in their respective evidence in the children proceedings.
The decision of the judge was procedurally unfair
The decision of the judge was not procedurally unfair.
Firstly, the judge’s conclusion that Ms Najma’s reaction to the mother’s complaints had been highly personalised to an extent that would reasonably be regarded as inconsistent with the retention of the requisite objective independence, and his conclusion that Ms Najma was standing alongside the father to an unusual degree in attacking the mother’s motives, were grounded in statements made by Ms Najma herself. The application concerned a case management decision in respect of which the judge was entitled to view the evidence in the round when coming to his decision. It therefore could not be said that the findings of fact the judge made were against the weight of the evidence before him, or that in doing so he failed properly to account for the duties under which Ms Najma was operating.
Secondly, the fact that Ms Najma was an advocate in her own defence, and argued the application for an order preventing her from acting, did not render the judge’s decision procedurally unfair. There were obviously some disadvantages to counsel arguing in their own defence in order to meet an application for an order preventing them from continuing to act for their client, but it was apparent that Ms Najma had chosen to adopt this approach, presumably on instruction from the father. Within that context, in so arguing, counsel would continue to argue on behalf of, and upon the instruction of, their client. Furthermore, the advocate who is the subject of an application will ordinarily be best placed to answer it, and it is not uncommon for an advocate to have to answer criticism levelled at them by another party at points during the course of proceedings.
Thirdly, the fact that the hearing was dealt with by way of submissions only, and that Ms Najma was not subject to cross examination so that her evidence was not heard and tested, did not amount to procedural unfairness. There had been no appeal mounted against the case management order of the judge stipulating that the matter would be dealt with by way of submissions, and it ‘would not be appropriate for case management applications of this nature to become a species of satellite litigation involving oral evidence and cross examination’ .
Overall, although it is only in exceptional circumstances that the court will countenance an order prohibiting counsel from continuing to act for a party, MacDonald J was satisfied that the judge’s order could not be said to have been wrong.
The judge posed the correct legal question of whether counsel’s continued participation would lead to a reasonable lay apprehension of unfairness, and having done so, he proceeded to weigh up each of the relevant factors, including the type of case and the factors affecting Ms Najma’s role. He was justified in concluding that this was an example of an extremely rare case in which it would be appropriate for the court to direct that counsel should not continue to act for a party.
The appeal was therefore dismissed.