COUNSEL PROHIBITED FROM ACTING FOR A PARTY: APPEAL UPHELD: A VERY RARE POWER EXERCISED

In  Ahmed v Iqbal (Order Preventing Counsel from Acting) [2020] EWHC 2666 (Fam) Mr Justice Macdonald upheld a decision preventing counsel from acting for a party in family proceedings.

THE CASE

The father and mother were involved in proceedings under the Children Act.  The father’s counsel had previously worked for the father whilst a Legal Executive and had extensive contact with the mother in relation to preparation of the father’s case in relation to immigration status.   The mother made an application to prevent father’s counsel from acting. This application was successful.

THE FINDINGS OF THE JUDGE AT FIRST INSTANCE

Mr Justice Macdonald set out the decision of the District Judge.

1. 1. In a concise and reasoned judgment, the learned Judge began by providing a brief overview of the background to the mother’s application as set out above and referencing the fact that he had heard detailed arguments on both sides, which arguments he summarised as follows:

“[9] For this hearing, both parties have filed detailed arguments and I have heard extensive submissions. I need not repeat them here. In summary, Counsel for the mother submits that [Ms Najma] had a close working relationship involving the seeking of advice. [Ms Najma] and mother acted together giving and accepting instructions. Following the breakdown of this, the mother’s alleged activities had an impact on [Ms Najma]. Counsel made a complaint to the police and the father is using the hostility between the mother and his counsel as part of his case with evidence supplied to him by [Ms Najma]. At the substantive hearing, it will have to be put to the mother in opposing the recommendation in the s 7 report for direct contact to commence, that she is not child-focused and her motivation is in question. The court would be in difficulties dealing with these with [Ms Najma] putting the father’s case.

[10] The father’s position is that the application by the mother is a tactical move to thwart his application. Matters alleged are for professional conduct proceedings and not a matter for the family court. The complaint to the professional body was dismissed. The test for recusal of an advocate is a higher one than that for a judge. Recusal of an advocate is exceptional and very rare. The circumstances point to an application to prevent [Ms Najma] acting on the basis that the mother would not like her acting. The police complaint is irrelevant as it does not further any issues relating to the child. The essential issues have already been decided, namely the finding of the facts. What remains is the welfare hearing. The mother is now seeking to reintroduce what was decided at the finding of fact hearing.”

1. 1. The learned Judge then went on to explain the reasons for his decision to grant the order sought by the mother. He began by examining the question of the jurisdiction of the court to make orders with respect to the representation of a party at a hearing. Whilst the learned Judge expressed hesitation with respect to the proposition that the court’s case management powers under the Family Procedure Rule 2010 provided the necessary jurisdiction to make the order, he expressed himself satisfied that he had the requisite power “both under Art 6 of the European Convention of Human Rights and in domestic law”. In this context, the learned Judge concluded as follows with respect to the applicable legal principles:

“[13] The domestic law is set out by Arden LJ in the [Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567] case together with the principles for the court to consider. In contrast to the situations described Geveran of course, here the court is looking prospectively at a hearing rather than reviewing a concluded hearing but the principles are still applicable.”

1. 1. The Appellant father contends at this appeal hearing that the learned Judge then made a series of findings of fact on which he based his decision. By contrast, the mother submits that the learned District Judge did not make findings of fact but rather simply, and appropriately for a case management decision, looked at the case in the round, relying on matters that were already established in other contexts. Reading the judgment, it is plain that the learned Judge took into account of the following matters in reaching his determination:

i) CILEx ultimately found that the allegation by the mother of a lack of professionalism by Ms Najma during the period between 2016 and 2017 was without substance.

ii) A professionally appropriate relationship had existed between the mother and Ms Najma during the period between 2016 and 2017.

iii) Ms Najma’s responses to the complaint made by the mother to CILEx by way of a reply and statement of evidence as summarised above.

iv) Ms Najma’s reply to the email subsequently sent by the mother to her chambers, as summarised above.

v) That the father in evidence to the court stated that he considered that Ms Najma felt both humiliated and embarrassed by the mother’s conduct.

1. 1. The learned Judge then dealt briefly with the key submissions that had been made by the parties. He acknowledged the submission on behalf of the father contending that the mother’s application was “tactical” in nature and that she was, in essence, profiting from her own wrongdoing by making spurious complaints against Ms Najma then relying on those spurious complaints to make good her application in these proceedings. At this point, the learned Judge concluded that, whilst the issue of tactics was relevant, the courts focus must be on the fairness of the trial in the substantive proceedings. The learned Judge also acknowledged the submission on behalf of the father that the lay magistrates had already dealt, at a finding of fact hearing, with the core issues in the case. However, he considered that, proceedings relating to children being dynamic in nature, he was compelled to consider all of the material properly admitted before him in determining the mother’s application.

   2. With respect to the submissions made on behalf of the mother, the learned Judge attached “some weight” to the submission made on behalf of the mother that, in light of the history of the matter, she would not be able to give her best evidence if cross examined by Ms Najma, the mischief lying in the cross-examination being distracted by the issues between the mother and Ms Najma. The learned Judge attached more weight to the submission that Ms Najma was “part of the proceedings” and “firmly aligned to the father”, accepting that, to a certain extent, there was a duty on counsel to act impartially. The learned Judge stated that counsel remained subject to the duty set out in Rondel v Worsley [1969] 1 AC 191, which he articulated as the duty to maintain professional independence and to advise the client in the client’s best interests.

   3. Within this context, and expressly observing that the order sought by the mother “is very exceptional and something not to be acceded to readily”, the learned Judge weighed in the balance the following factors:

i) The father had confidence in Ms Najma, who had represented him for a number of years.

ii) There was evidence before the court that the mother had made a professional complaint against Ms Najma and had sought to denigrate the Ms Najma to her chambers.

iii) Counsel should be robust, independent and professional and should not lightly decline to represent a party or withdraw from doing so.

iv) Against these factors, the court must be concerned with the integrity of the proceedings and particularly so when adjudicating on the welfare of a child.

v) The question of the impact of the complaints raised by the mother against Ms Najma were not matters in the exclusive purview of the regulatory body and were also a matter for the court to consider in seeking to act in compliance with the overriding objective in Part 1 of the FPR 2010.

vi) The court has an inherent power to prevent an abuse of process and, accordingly, the power to restrain and advocate from representing a party if it is satisfied that there is a real risk that his or her continued participation will lead to a situation where the order made at trial would have to be set aside on appeal.

vii) The trial must be fair. It is necessary for a party objecting to an advocate to demonstrate that unfairness will result. In many cases it will be suffice to demonstrate unfairness that there is a reasonable lay apprehension of the same, because it is important not only that justice is done but also that it is seen to be done.

viii) In this case, there was a risk that the mother would apprehend that the proper conduct of the case would be unfairly affected by the antipathy between herself and Ms Najma, which antipathy was “palpable” and recorded in writing and documents filed with the court.

ix) Further, there was risk that the presentation of the father’s case could be affected by Ms Najma’s own feelings towards the mother, as demonstrated by the counter-allegations made by Ms Najma in response to the mother’s complaints.

x) Ms Najma was on record as expressing significant distress at the conduct of the mother, which may appear to a lay person strongly to suggest that Ms Najma would have difficulty in maintaining professional detachment.

xi) Whether or not the mother’s conduct was reprehensible, the cross examination of the mother by Ms Najma would mean cross-examination of the mother 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.

xii) It was not possible to put aside the issue of whether the mother’s opposition to contact was child-focused or arose from her hostility to the father arising from his alleged betrayal and to do so in order that Ms Najma could continue to act would preclude an obvious line of cross-examination on an issue central to the determination of the proceedings.

xiii) The court must also be mindful of the importance of public confidence in the administration of justice.

1. 1. Having balanced the foregoing factors, the learned District Judge concluded as follows with respect to the overall position of Ms Najma:

“[25] Counsel was clearly upset by the allegations made by the mother. The 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. Here, in my judgment, the reaction 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. Further, the material before the court also points to counsel standing alongside the client to an unusual degree in attacking the mother’s motives. In the view of the court the reaction threatens counsel’s ability to discharge counsel’s role in the manner in which it is to be discharged. There is 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. Counsel has become embroiled to such an extent that counsel’s ability to conduct child-centred proceedings on behalf of the client in an appropriate professional manner is now compromised. Most importantly, the failure of parents to agree childcare arrangements often, sadly, arises from their personal feelings towards each other. In such cases, counsel for the parties can have a vital role in acting as intermediaries and brokers of agreement. This requires the professional ability to act with detachment from the underlying hostility between the parties and to give impartial advice. If either counsel has become personally embroiled in the dispute, and in this case there is clearly great hostility between the parties, this may be unachievable and work to the detriment of an outcome which is child, rather than parent, centred.”

1. Within this context, and again reminding himself that the order sought was an exceptional and rare step, the learned District Judge considered that the balance of the relevant factors fell in favour of directing that Ms Najma should not represent the father in the proceedings under the Children Act 1989 and made an order accordingly.

THE FATHER’S UNSUCCESSFUL APPEAL

The father’s appeal against this decision was dismissed.

1. 1. I am satisfied in this case that permission to appeal should be granted but that the appeal should be dismissed. My reasons for so deciding are as follows.

   2. I deal with the grounds of appeal in a slightly different order to that pleaded by Mr Bradshaw on behalf of the father, beginning with Ground 2 concerning the question of whether the learned Judge applied the proper legal test in determining the mother’s application. Having regard to the decision of the Court of Appeal in Gerevan I am satisfied that the learned Judge applied the correct legal test in this case.

   3. As I have noted, 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 learned Judge in this case.

   4. Within this context, whilst I accept that the learned Judge did 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. At paragraph [10] the learned Judge acknowledged the submission on behalf of the father that:

“[10] …The test for recusal of an advocate is a higher one than that for a judge. Recusal of an advocate is exceptional and very rare.”

At paragraph [13] the learned District Judge then stated as follows:

“[13] The domestic law is set out by Arden LJ in the Geveran case together with the principles for the court to consider. In contrast to the situations described Geveran of course, here the court is looking prospectively at a hearing rather than reviewing a concluded hearing but the principles are still applicable.”

Within this context, and having regard to the passages I have extracted from Gerevan above, the learned Judge went on at paragraph [17] to correctly identify that the court’s focus was on the fairness of the substantive proceedings. Thereafter, at paragraph [23] of his judgment the learned Judge restated that the following two legal propositions from Gerevan:

“[23] These are the considerations which have weighed with me.

a) The court has an inherent power to prevent abuse of its procedure and accordingly has the power to restrain an advocate from representing a party if it is satisfied that there is a real risk of his continued participation leading to a situation where the order made at trial would have to be set aside on appeal.

b) The trial has to be fair. However, it is not necessary for a party objecting to an advocate to show that unfairness will actually result. In many cases it will be sufficient that there is a reasonable lay apprehension that this is the case because it is important that justice should not only be done, but seen to be done.”

1. 1. Within this context, I am unable to accept Mr Bradshaw’s submission that the learned Judge applied the wrong test, let alone that he mistakenly applied the legal test set out in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, as considered in Porter v Magill [2002] 2 AC 357, namely whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Contrary to Mr Bradshaw’s written submissions, it is clear that at paragraph [23] the learned Judge did not formulate the test as one of a reasonable lay apprehension of bias but rather, and in accordance with Gerevan, as one of a reasonable lay apprehension of unfairness. Indeed, the learned Judge made no reference to In re Medicaments and Related Classes of Goods (No 2) or Porter v Magill. Mr Bradshaw’s attempt to substitute unfairness with bias mischaracterises the approach of the learned Judge at paragraph [23], which approach based on a reasonable lay apprehension of unfairness was entirely consistent with the decision of the Court of Appeal in Gerevan.

   2. Within this context, I also cannot accept Mr Bradshaw’s submission that the learned Judge erred in law at paragraph [23] of his judgment by treating the maxim that justice must not only be done but be seen to be done as a decisive or strongly determinative factor. At paragraph [23] the learned Judge was simply acknowledging that which was recognised by the Court of Appeal in Gerevan, namely that, when asking whether the position of counsel risks creating a reasonable lay apprehension of unfairness, the reason it is not necessary to establish actual unfairness is because, as articulated R v Sussex Justices, Ex p McCarthy, it is a cardinal principle of fairness and natural justice generally that justice must not only be done but be seen to be done.

   3. Dealing next with Grounds 1, 4 and 5 concerning the weight the learned Judge attached to certain of the factors in this case, I am satisfied that the learned Judge did not err by failing to give adequate weight to the potential for the mother to adopt a tactical position amounting to an abuse of process, by giving undue weight to the response of Ms Najma to the behaviour of the mother in circumstances where it is the first duty of counsel to fearlessly advance the interests of her client or by giving undue weight the potential for difficulties to arise in cross-examination of the mother by Ms Najma.

   4. With respect to the risk of the mother’s application being simply tactical in nature, the learned Judge expressly recognised in his judgment that this was a risk in applications of this nature and took account of the risk of tactical manoeuvring amounting to an abuse of process, referring at a number of points during the judgment to that issue and the Gerevan case in which the risk was highlighted. Within this context, I accept that the learned Judge’s conclusions on this issue are not expressed in the clearest of terms. However, I read the learned Judge’s conclusion at paragraph [17] of the judgment to be 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 the same. Having regard to the evidence before him, the learned Judge was entitled to reach that conclusion and evaluate the weight to be attached to the issue of tactics accordingly.

   5. With respect to the contention that the learned Judge attached undue weight to the response of Ms Najma to the behaviour of the mother in circumstances where it was her duty as counsel to fearlessly advance the interests of her client, Mr Bradshaw’s concentration on Ms Najma’s duties as counsel obscures the real issue. The conduct to which the learned Judge attached weight in deciding whether the continued involvement of Ms Najma would lead to a reasonable lay apprehension of unfairness was not the fact that Ms Najma had sought to continue to act for the father in pursuance of her professional obligations but rather the manner in which she conducted herself in seeking to do so.

   6. Ms Najma was, of course, required to respond to the complaint made by the mother to CILEx. It was also open to Ms Najma to make a complaint of harassment to the police if she wished to do so. Further, in seeking to maintain fidelity to the cab rank rule, counsel may have to rebut complaints and criticisms levelled at them by an opposing party during the course of proceedings. However, in this case, at various points during her response to the mother’s conduct, Ms Najma:

i) Asserted that the mother was a “bitter ex-wife” who was seeking to achieve the deportation of the father to Pakistan.

ii) Asserted that the mother was a “very controlling and paranoid person” who had fabricated allegations.

iii) Described the mother as aggressive and demanding and quite rude.

iv) Implied that, in her assessment, the mother had overborne the father and had forged the father’s signature.

v) Stated her intention “not be bullied and humiliated and beaten down by a bitter ex-wife”.

vi) Accused the mother of causing her financial and emotional distress.

vii) Threatened defamation proceedings against the mother.

viii) Asserted that mother had brought her to breaking point, caused her emotional distress and put her at risk of depression.

Moreover, the documents containing these assertions by Ms Najma against the mother were then filed as evidence in the proceedings under the Children Act 1989, in which Ms Najma was acting as counsel for the father.

1. 1. In my judgment, having reminded himself of the risk of tactical applications and that the court will only grant orders of the type sought by the mother extremely rarely, the learned Judge was in entitled in the foregoing circumstances to consider that the statements made by Ms Najma, and relied on 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. Within this context, this material thereafter having been introduced as evidence in the family proceedings, I am satisfied that the learned Judge cannot be said to have been wrong to have attached the weight he did to elements of Ms Najma’s reaction to the conduct of the mother having decided, by reference to the duty in Rondel v Worsley, that:

“[25] Counsel was clearly upset by the allegations made by the mother. The 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. Here, in my judgment, the reaction 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.”

1. 1. With respect to the potential for difficulties to arise in cross-examination of the mother by Ms Najma in the particular circumstances of this case, given the evidence before the court the potential for such difficulties was plain.

   2. Both the mother and the father had put in issue in the proceedings under the Children Act 1989 the period during which Ms Najma was acting for the father with respect to his immigration application and communicating regularly with the mother. Whilst the mother was not Ms Najma’s client, it is clear from the communications before the learned Judge that a de facto professional relationship arose between them for a significant period between 2016 and 2017, which included Ms Najma providing the mother with informal advice. As the learned Judge recognised, having regard to the competing cases of the parents, the question of whether the mother’s opposition to contact was genuinely child focused or arose from her hostility to the father over her alleged betrayal prior to their separation in 2017 would be in issue at the final hearing. In those circumstances, it was plain that Ms Najma would, in all likelihood, be required to cross-examine the mother regarding her conduct and her motivations during a period in which Ms Najma had been providing informal advice to the mother, in which the mother had on occasion confided personal matters to Ms Najma and at the conclusion of which the mother and Ms Najma had fallen out. That this would give rise to a reasonable lay apprehension of unfairness on the part of the mother were she to be cross-examined by Ms Najma was clear.

   3. In addition, in circumstances where Ms Najma had repeatedly expressed clear and negative personal views regarding her assessment of the mother’s character, motivation and conduct, with those negative personal views thereafter being placed in evidence in the proceedings under the Children Act 1989, there was plainly the potential for the mother to feel she was being cross examined in the family proceedings by someone who had developed a personal animosity towards her and/or that Ms Najma was asking her questions with an ulterior motive given the very recent dispute between them.

   4. Within the foregoing context, the learned Judge cannot be said to have been wrong in reaching the conclusion that the cross examination of the mother by Ms Najma would give rise to an reasonable lay apprehension of unfairness on the part of the mother in circumstances where, as the learned Judge concluded, whether or not the mother’s conduct was reprehensible, the cross examination of the mother 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 open to him on the evidence can be seen simply from the number of times that Ms Najma features as an issue between the parents’ in their respective evidence in the proceedings concerning their daughter.

   5. I turn finally to deal with Ground 3 and the question of procedural fairness. Having considered carefully the submissions in this case, I am not satisfied that the decision of the learned Judge was procedurally unfair by reason of his findings being against the weight of the evidence, Ms Najma being required to advocate in her own defence on the application or the absence of oral evidence and cross-examination.

   6. With respect to the contention that the learned District Judge made findings of fact as to Ms Najma’s view of, and attitude towards the mother against the weight of the evidence and without proper regard to Ms Najma’s duty to fearlessly advance the father’s interests, the learned judges 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 before the learned Judge concerned a case management decision in respect of which the learned District Judge was entitled to view the evidence in the round when coming to his decision. Further, as I have already articulated, on the evidence before the court the learned District Judge was entitled to conclude that the statements made by Ms Najma, and relied on by the father as evidence in the family proceedings, went beyond an effort to rebut of the mother’s complaints and criticisms in order to maintain fidelity to the cab rank rule and to fearlessly advance the interests of her client. Within this context, in my judgment it cannot be said that, in so far as the learned Judge made findings of fact, they 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.

   7. The issue of Ms Najma being an advocate in her own defence is a little more difficult. There are 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. Against this however, it is apparent that Ms Najma chose to adopt this approach, presumably on instruction from her client, the father. Within this context, in so arguing counsel continues to act on behalf of, and upon the instruction of their client. In addition, the advocate who is the subject of the application will ordinarily be best placed to answer it. Further, 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. Within this context, I was not taken to any authorities that suggest that a special procedure should be adopted on applications of the kind with which the learned Judge was concerned or which suggest that there is a principled objection to the advocate who is the subject of the application arguing against it on the instruction of their client. On balance, I am not satisfied that the fact Ms Najma argued the application for an order preventing her from acting rendered the learned Judge’s decision procedurally unfair.

   8. Finally, I am satisfied that there is no merit in the contention that the hearing before the learned District Judge was procedurally unfair in circumstances where it was dealt with by way of submissions and Ms Najma was not subject to cross-examination so her evidence was not heard and tested. There was no appeal mounted against the case management order of the learned Judge stipulating that the matter would be dealt with by way of submissions. In any event, that approach was proportionate to the case management issue with which the court was seized. 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.

CONCLUSION

1. In conclusion, whilst as made clear by the Court of Appeal in Gerevan it is only in exceptional circumstances that the court will countenance an order prohibiting counsel from continuing to act for a party, I am satisfied that the order of District Judge Carr of 29 June 2020 cannot be said to have been wrong.

2. The learned Judge was required to, and did ask himself whether counsel’s continued participation would lead to a reasonable lay apprehension of unfairness. Having posed the correct question, the learned Judge proceeded, in line with the requirements laid out in Gerevan, to weigh up each of the relevant factors, including the type of case and the factors affecting the role of Ms Najma. Within this context, in my judgment the learned Judge was justified, on the evidence before him and having exercised appropriate caution having regard to the rarity of the order sought, in concluding that this was an example of the extremely rare cases in which it is appropriate for the court to direct that counsel should not continue to act for a party to proceedings because their continued participation would lead to a reasonable lay apprehension of unfairness, creating a real risk of counsel’s continued participation resulting in the order made at trial being set aside on appeal.

3. Accordingly, whilst I am satisfied in this case that permission to appeal should be granted to the appellant, I dismiss the appeal.

4. Upon sending this judgment to counsel in draft, I indicated that I would consider in writing any submissions with respect to the question of anonymising Ms Najma’s name in this judgment. Ms Ismail submitted that anonymising Ms Najma’s name in a judgment on appeal would not meet the need for open justice. Mr Bradshaw submitted that Ms Najma’s name should be anonymised to prevent the judgment being used by the mother to further criticise Ms Najma. However, very properly, Mr Bradshaw also conceded that there is no principle requiring the court to grant such anonymity in a judgment on appeal. Mr Bradshaw further and properly conceded that, whilst in one case concerning the question of whether counsel should continue to act the judgment had not named counsel (in R v Smith, where counsel concerned was a pupil), this was not the approach taken in the appeal in Gerevan or the appeal in R v Batt. I have considered carefully Mr Bradshaw’s helpful submissions but I am satisfied that anonymising counsel’s name would not be appropriate in this case.