Geveran Trading Co Ltd v Skjevesland

An advocate may exceptionally be restrained from acting even where no confidential information is involved. The court’s concern is the advocate’s duty to the court and the integrity of the proceedings, rather than enforcement of professional conduct rules. The relevant question is whether continued participation creates a real risk that the trial order would have to be set aside on appeal. Actual unfairness need not be proved if there is a reasonable lay apprehension that justice may not be seen to be done. The court must examine all the circumstances, including the nature of the relationship, the evidence, the type and length of hearing, and the advocate’s particular role. Applications to remove advocates should be approached cautiously because of tactical delay and the cab-rank rule. Where a matter is reasonably open to objection, disclosure should be made promptly.

The appellant appealed from Lightman J’s dismissal of his appeal against the Registrar’s refusal to order a retrial of bankruptcy proceedings. The retrial application concerned the participation of counsel for the petitioning creditor, who had previously known the appellant’s wife and some of her friends. The appellant argued that the relationship created an appearance of possible unfairness in evidence concerning his domicile and engaged the Code of Conduct, apparent-bias principles and article 6 of the European Convention on Human Rights.

The Court of Appeal held that the issue had become academic as to the bankruptcy order, because the appellant had succeeded on domicile and the order rested on residence. The appeal therefore principally concerned the costs order and the legal principles governing counsel’s participation.

1. Appeal dismissed. The order of Lightman J was affirmed, with the appellant ordered to pay the respondent’s costs of the appeal.
2. An advocate is an officer of the court. The advocate’s duty to the court overrides the duty to the client and includes duties not to mislead the court, to identify relevant authorities and legislation, to draw attention to procedural irregularities and to assist the court in furthering the overriding objective under Civil Procedure Rules 1998, rule 1.3.
3. The court rejected the submission that restraint of an advocate is available only where confidential information is involved. Confidential information may justify restraint under Bolkiah v KPMG [1999] 2 AC 222, but exceptional cases may also arise where the advocate’s participation threatens the appearance or integrity of justice. The court may act under its inherent power to prevent abuse of its procedure.
4. The operative question is whether there is a real risk that the advocate’s continued participation would lead to an order being set aside on appeal. It is unnecessary to prove that unfairness will actually occur. A reasonable lay apprehension that justice may not be seen to be done can suffice. The judge must assess the particular facts carefully, including the relationship, the nature of the evidence, the type and length of the hearing and any special role of the advocate.
5. The court should not readily remove opposing counsel. Tactical objections, inconvenience, delay, the client’s choice of advocate and the cab-rank rule are relevant considerations. The principles illustrated by R v Winston Smith (1975) 61 Cr App R128, R v Batt [1996] Crim.LR 910 and Re L [2001] 1 WLR 100 show that restraint is exceptional but not confined to confidential-information cases.
6. Where an advocate considers that a personal factor may reasonably be regarded as open to objection, the relevant facts should be disclosed to the other side promptly and, unless the objection is waived, to the court at the opening of the hearing. The test applicable to judicial apparent bias in Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 was not the appropriate test for counsel, whose personal factors matter only insofar as they may prejudice the proper administration of justice.
7. On the facts, the acquaintance was social, non-confidential and remote. There was no suggestion that it affected cross-examination, inhibited evidence or caused prejudice. Restraint was therefore unjustified.

• Court of Appeal: appeal from Lightman J dismissed; his order affirmed.
• High Court: Lightman J dismissed the appellant’s appeal from the Registrar’s refusal to order a retrial.
• Bankruptcy Registrar: Registrar Jaques dismissed the retrial application and later made a bankruptcy order. The appeal concerning counsel’s participation was heard separately from the appeal concerning residence.