Ahmed v Iqbal (Order Preventing Counsel from Acting)

The court has an inherent power, exercisable only in exceptional circumstances, to prevent an advocate from continuing to act. The question is whether continued participation creates a real risk that the trial order would have to be set aside on appeal. A reasonable lay apprehension of unfairness may suffice; actual unfairness need not be proved. The court must consider all the circumstances, including the nature of the proceedings, the advocate’s role, tactical motivation, the cab-rank rule and the effect of the advocate’s personal involvement. In child proceedings, counsel’s personal hostility towards a parent, or involvement as a potential witness in disputed events, may compromise the objective detachment required for child-centred advocacy.

The father appealed against an order of District Judge Carr dated 29 June 2020 prohibiting Ms Sima Najma from continuing to act as his counsel in proceedings under Part II of the Children Act 1989. The order followed the mother’s application, based on counsel’s earlier professional relationship with her during the father’s immigration application and subsequent hostile communications and complaints.

The appeal raised issues concerning jurisdiction, the applicable test, tactical applications, counsel’s duty fearlessly to advance the client’s case, procedural fairness and the absence of oral evidence. Permission to appeal and the appeal were heard together. The central question was whether continued representation created a reasonable lay apprehension of unfairness and a real risk that the eventual order would be set aside on appeal.

1. Outcome. Permission to appeal was granted, but the appeal was dismissed. The order preventing Ms Najma from acting was upheld.
2. Applicable test. Following Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567, the court has an inherent power to restrain an advocate where continued participation creates a real risk that the order made at trial would have to be set aside on appeal. It is unnecessary to establish actual unfairness. A reasonable lay apprehension of unfairness may be sufficient, because justice must be seen to be done. The jurisdiction is exceptional and must be exercised with caution.
3. The court must assess all the circumstances, including the risk of tactical manoeuvring, the client’s choice of advocate, the cab-rank rule, the type and length of the hearing, the advocate’s particular role and the nature of the relationship or connection said to affect the advocate’s participation.
4. The District Judge applied that test. The relevant concern was not that counsel had continued to advance the father’s interests, but that her responses to the mother’s complaints had become highly personal. Her statements, which were placed in evidence in the family proceedings, indicated hostility towards the mother and compromised the appearance of objective professional independence. The principles concerning counsel’s independence and duty to act in the client’s best interests in Rondel v Worsley [1969] 1 AC 191 did not require the court to disregard that conduct.
5. The mother and counsel had previously communicated extensively about the immigration application, including informal advice and personal confidences. The mother’s motivation for opposing contact was itself in issue. Counsel was therefore likely to cross-examine the mother about matters in which she had previously been involved and might appear to be advancing her own case as well as the father’s. That gave rise to a reasonable lay apprehension of unfairness.
6. The case-management decision was not procedurally unfair. Counsel could argue the application on the father’s instructions, and no special procedure was required. Determining the application by submissions was proportionate; such applications should not become satellite litigation involving oral evidence and cross-examination.

High Court (Family Division). District Judge Carr’s order dated 29 June 2020 was challenged on appeal. Permission to appeal was granted, but the appeal was dismissed and the order preventing counsel from acting was upheld.