DUTY TO DRAW ADVERSE AUTHORITIES TO THE ATTENTION OF THE COURT: HOW FAR DOES IT GO?

Mediatelegal

The duty to draw the court’s attention to authorities that do not support your case is an important one.  In Weir -v- Hildson [2017] EWHC 983 (Ch) Mr Justice Nugee discusses the extent of this duty.

THE CASE

The applicant bankrupt was appealing a decision to extend the period of bankruptcy because of a failure to co-operate with the Trustee.  One of the arguments put forward was that the Trustee’s counsel had not drawn the court’s attention to a relevant case at a time when the bankrupt was acting as a litigant in person.

THE JUDGMENT ON THIS ISSUE

  1. As to Ground 7, this is based on counsel’s duty to draw relevant authorities to the attention of the Court, a duty which is said in the Bar Standards Board Handbook to be “particularly important” when a litigant is acting in person. It is said in particular that Chadwick v Nash should have been cited, as well as s. 363 of the Act under which even after discharge a bankrupt whose estate is still being administered remains under a duty to do all such things as he may be directed to do by the Court for the purposes of the bankruptcy and the administration of the estate, and is liable to be punished for contempt of court if he fails to do so.
  2. The duty is well established. It forms an important part of the way in which justice is administered as it enables judges to rely on counsel to place before them fairly an explanation of what the law is. But I am not aware of any authority – and none was cited to me – which explores how far it goes. It plainly does not require counsel to cite every authority which might conceivably be useful to their opponent, especially as almost every decision is now reported in one form or another. In essence I think it is an aspect of counsel’s obligation not to mislead the court: if counsel submitted that the law was X and suppressed an authority that established that the law was not X but Y, that would be misleading. In the present case, I do not think counsel can be said to have come anywhere close to misleading the Court, or to placing the law before the Court in an unfair manner. Mr Hannant cited Hellard v Kapoor. That had the advantage of including citations from both Shierson v Rastogi and Bramston v Haut, and also of referring to authority to the effect that the trustee must not wait until the last moment to bring the application, with specific reference to an order being refused on this ground in Chadwick v Nash. I do not think it was incumbent on counsel to do more. Nor do I think that he was under an obligation specifically to draw attention to s. 363 of the Act: it is true that that provides a method of enforcing a bankrupt’s obligations to assist the trustee even after discharge, but it does not undermine what Mr Hannant said to the Court.”

WHAT IS AN “AUTHORITY”

The argument that Chadwick -v- Nash should have been cited serves to highlight the difficulty as to what is meant by “authority”.  It is a first instance decision of Mr Registrar Nichols which was essentially the exercise of a discretion based on established principles.  It would be extremely hard to impose a duty whereby an advocate has to research and disclose all first instance cases where a judge has exercised a discretion in a different manner to that sought by the advocate’s client.