(NU Questions)

Question 1

You are a self-employed family law barrister of three years’ call. You have been
instructed by Fierons Solicitors to represent Aidan Brown, who is defending an
application for an Occupation Order. His wife, Edwina Brown, alleges that her
husband assaulted her on two occasions in the last month and she is seeking to
exclude Mr Brown from the family home. The Browns have no children. For the last
six years, you have campaigned on behalf of a charity, which supports the interests
of female victims of domestic violence. You have regularly acted for such women,
often pro bono, but this is the first time you have been instructed to represent a man
accused of assaulting his wife. You have read the brief outlining your instructions but
have not yet read the witness statements. A private fee has been agreed with the
solicitor through your clerk and you have been asked to attend Court in two days’
time for what seems likely to be a contested hearing. You feel uncomfortable about
taking on the case and how it might affect your relationship with the charity.

(a) Identifying the relevant ethical principles and applying them to the facts,
explain the issues you need to consider in deciding whether to accept the
instructions. (4 marks)

1. The cab rank rule applies. [½ mark] You are a self-employed barrister receiving
instructions from a professional client and the other conditions are fulfilled (rC29) [½
mark]
2. You must accept instructions irrespective of any belief you may have formed as to the
character, reputation, cause, conduct, guilt or innocence of the client. (rC29.3.d) [½
mark]
3. You might seek to argue that because of your work for the charity, you are not
going to be able to maintain your independence. (rC21.10 and CD4) [½ mark]
4. This is something to consider [½ mark] but, in the circumstances, it would not
justify refusing the instructions. [½ mark]
5. You must not discriminate unlawfully against any person. (CD8) [½ mark] and in this
scenario not on the rounds of gender. (rC12) [½ mark]
6. You must act in the best interests of your client without regard to your own interests.
(rC15.2) [½ mark]
7. You must not withhold your services on the ground that the nature of the case is
objectionable to you or to any section of the public. (rC28.1) [½ mark]
8. Nor may you withhold your services on the ground that the conduct of the prospective
client is unacceptable to you or to any section of the public. (rC28.2) [½ mark] (NB
No mark for referring to opinions or beliefs of prospective client or for simply
reciting whole of this rule. You have not yet read the witness statements or met
the client and there is nothing in the scenario to suggest that you know anything
about his opinion or beliefs.)
9. The fact that this is the first time you have been instructed to represent a violent man
is not material. [½ mark] You have experience in this kind of proceedings and
therefore are deemed competent. [½ mark]
10. Given the facts in this scenario, you must accept the instructions. [½ mark]

In his witness statement, Mr Brown says that he has never hit his wife. The hearing
commences and you cross-examine Mrs Brown on this basis. You take further
instructions from Mr Brown during the lunch adjournment. During this conference, he
changes his instructions and tells you that he has in fact hit her on two occasions,
but these assaults took place more than a year earlier and he did not hit her in the
manner she alleges. He says that he immediately apologized and promised not to do
it again. He confirms to you that he will not do it again. Mr Brown does not want you
to tell the Court that he hit Mrs Brown, because he is worried that the Judge will all
too readily accept his wife’s version of events. He is now due to give evidence.

(b) Identifying the relevant ethical principles and applying them to the facts,
explain how you should now advise Mr Brown and what action should
properly be taken in the light of his new instructions. (6 marks)

1. You should inform Mr Brown that you must not knowingly or recklessly mislead or
attempt to mislead the court. (rC3) [½ mark]
2. You must observe your duty to the court in the administration of justice. (CD1) [½
mark]
3. You must not behave in a way, which is likely to diminish the trust, and confidence,
which the public places in you or in the profession. (CD5) [ ½ mark]
4. You should explain to Mr Brown that you have already, albeit unwittingly, [½ mark]
misled the court by putting to Mrs Brown that her husband has never hit her. [½
mark]
5. You should tell Mr Brown that you would need to ask the judge’s permission to recall
Mrs Brown [½ mark] in order to rectify your error [½ mark]
6. Because you must not ask, questions, which suggest facts to witnesses, which you are
instructed, are untrue. (rC6.1b) [1/2 mark]
7. You would need to do this before you call Mr Brown to the witness box [½ mark]
8. You would then have to explain to the court which questions you wish to withdraw.
[½ mark]
9. You would need to explain to the court that you wish to put to Mrs Brown that Mr
Brown accepts that he assaulted her [½ mark] but that this was more than a year ago
and not in the manner alleged. [½ mark]
10. You should advise Mr Brown that he should amend his witness statement to delete the
assertion that he has never assaulted his wife [½ mark], to add details of the
instances when he did assault her [½ mark] and explain why he did not disclose these
instances earlier [½ mark] CD2
11. You need to seek his consent to make the disclosures (gC8) / you must keep his
affairs confidential. (CD6) [½ mark only for either or both points]
12. If Mr Brown is not prepared to allow you to
a. recall Mrs Brown in order to clarify the situation [½ mark]
b. or to amend his witness statement [½ mark]
You would need cease to act in the proceedings. [½ mark] (rC25.2)

(Total 10 marks)

Question 2

Selina is a self-employed barrister. She has been instructed to advise and represent Lytollis
Travel Ltd, the Claimant in a commercial dispute with Solaris Hotels. Selina has already
drafted an opinion on liability. By telephone, Richard, Selina’s instructing solicitor, tells her
that she should soon receive some instructions to write a further opinion in the matter due to
new evidence coming to light. As it happens, Solaris have instructed Bruce, a fellow member
of Selina’s Chambers. Selina subsequently receives some papers in the matter of Lytollis
Travel Ltd v Solaris Hotels. Selina does not read her instructions but straightaway starts to
read the accompanying papers.
When she opens the papers she sees an opinion and starts to read it thinking to familiarise
herself with what she had written in her first opinion. The opening sentence reads as follows,
“I have been instructed to write an opinion on liability for Solaris Hotels.” In reading this
Selina realises the opinion is not hers, but Bruce’s advising her opponents, Solaris. She
immediately reads no further thinking that the clerks must have mixed up who should receive
these instructions. Any trial on the matter would be a number of months away.

(a) Giving reasons for your answer, what should Selina do next? (5 marks)
1. Selina should read no further in the papers. (1 mark)

2. The papers should be given to Bruce/returned to Bruce’s instructing solicitors

immediately. (1 mark)

3. Selina should tell Bruce/Bruce’s instructing solicitors the extent to which she had read
the opinion – which is only up to the confirmation of instructions. (1 mark)

4. To read the papers further before returning them would infringe upon Selina’s duty to
act with honesty and integrity (CD3) or would infringe her duty to assist the court in
the administration of justice (CD1) [This is because of the importance the courts
have placed on the necessity for parties to have their communications with their
legal representatives treated as privileged for the effective administration of
justice in an adversarial system. See the comments by Sir Thomas Bingham MR
in Ridehalgh v. Horsefield [1994] Ch 205, cited in the judgment of Ablitt -v- Mills
& Reeve (A Firm) and Another.] ( GC86) or would be conduct likely to diminish
the trust and confidence the public places in the profession (CD5). (1 mark
maximum for any of these core duties but ONLY if any are given as a reason for
a course of action identified. Merely reciting the duty without such a context gets
NO MARKS)

5. Selina should consider whether she should withdraw (1 mark) (rc 26.6)

6. However she probably should not withdraw (1 mark)

7. Because:

8. If the other side decide to apply for an injunction to restrain her from acting for
Lytollis, it is far from certain to be to be successful (1 mark)
 9. As she has not read the papers any further than the confirmation of instructions in
Bruce’s opinion she is not privy to any confidential information (1 mark)

10. And to instruct a new barrister in this matter at this stage would not necessarily be in
the client’s best interests (CD2) (1 mark)

Any reference by students to Selina making inquiries of the clerks as to what/how things
went wrong with reference to CD10 should also be rewarded with a mark.

Assume for part (b) Oswald is a self-employed barrister instructed by Waylon Solicitors to
write an opinion for Slade Insurance who are defending a claim for personal injury arising
from a road traffic accident. The instructions to Oswald consist of a bundle of papers and a
terse note stating only the following, “Please advise as to liability and next steps in this
matter. All pertinent issues shall be apparent from the papers”. As Oswald reads the papers it
becomes clear that there is included some of the correspondence between the Claimant and
her solicitors which outlines the latter’s assessment on the strengths and weaknesses of the
Claimant’s case as well as outlining tactics to use in negotiation and, should it come to it,
trial. Oswald, having read the correspondence, contacts Waylon to see how they obtained
these papers. Waylon informs him that the correspondence was sent to them mistakenly by
the Claimant’s solicitors (who do not know that Waylon had received them) and would like
Oswald to advise them on how best to defend the claim given the information contained
therein. Any

(b) Giving reasons for your answer, what should Oswald do next?
(5 marks)
Answer- Part b)

The relevant rules/principles are the same as above.

[Note that the question clearly specifies that it is only interested in what Oswald should
do next, so there are no marks for identifying that he should have stopped reading the
papers before contacting Waylon etc.]

1. Oswald should return the privileged papers correspondence to the Claimant to the
other side (1 mark) stating that he had read it (1 mark)

2. Oswald should consider withdrawing from the case (1 mark)

3. This is because the Claimant would in any event likely obtain an injunction
restraining Oswald from acting for Slade (1 mark) [as a side note the Claimant
would likely succeed in having Waylon restrained from acting for Slade as well,
unless Waylon could satisfy the court that a strict “Chinese wall” would exist
between those in their firm who read the correspondence and those who would
actually conduct litigation for Slade. This would likely be difficult to show to the
 court’s satisfaction – see the closing comments in Ablitt -v- Mills & Reeve (A
Firm) and Another].

4. As Oswald has read the correspondence and the “damage” cannot be undone (1
mark)

5. And having to withdraw later in any event could be contrary to the lay client’s best
interests (CD2)(1 mark)

6. All of the above would be consistent with Oswald’s duty to act with honesty and
integrity (CD3)/to assist the court on the administration of justice (CD1)/not behave in
a way which would diminish the trust and confidence the public places in the
profession (CD5) (1 mark maximum for any of these core duties but ONLY if any
are given as a reason for a course of action identified. Merely reciting the duty
without such a cointext gets NO MARKS)

7. If Oswald decides to withdraw he should tell Waylon and Slade the reason why (1
mark)

8. He should also tell Waylon and Slade that he returned the privileged correspondence
to the other side and informed the Claimant’s solicitors that he read the
correspondence (1 mark)

Question 3

You also have some experience in conducting immigration and asylum

cases in the Immigration and Asylum Tribunal. This has included acting
as a Home Office presentation officer and acting for applicants and
appellants seeking to remain in and / or enter the UK in the Immigration
Tribunal and Immigration Appeals Tribunal. You have been developing a
good reputation and you have been marketing well with the other
members of your Chambers’ Immigration Team in order to promote your
business. You have a practising certificate but you have not completed
any other specific training or accreditation. You are contacted by a local
immigration company. They provide advice and services to persons
seeking permanent leave to remain in the UK. They are not a solicitors
firm. They want to involve you in their processes and they will pay you
for the work you do, the sums suggested are not insignificant. They want
you to provide advice to one of their workers who will be advising
customers. One of their workers will act as an immigration adviser and
effectively contact you in order to ensure that the advice given is correct.
You advise the immigration worker, they advise the client. You will never
have to speak directly to a single client. You will only speak to the
immigration adviser in the immigration company.

Can you do what the immigration company want you to do and why?

(4 marks)

1. I can not do what the immigration company wants me to do as it amounts to

supervising an immigration adviser which is itself a matter for which I would
have to be direct access qualified and registered to accept direct access
cases with the BSB and I am not.
2. Theoretically, there is no bar on barristers acting as supervisors to
immigration advisers and as a barrister I would be a qualified person under
the IAA, see Code Guidance for Barristers Supervising Immigration Advisers
at paras 4-6.
3. However, as there would be advice given to the immigration adviser by me
and then advice then given to the client, I am deemed to have a direct link to
the client, Code Guidance for Barristers Supervising Immigration Advisers at
paras 4-6.
4. I would therefore need to be direct access/public access qualified and
registered with the BSB in order to act in the manner requested of me (both
points in bold needed).
5. This is because rS24 limits how a self–employed barrister can be instructed to
conduct a legal service. Advising on a case would constitute a legal service
(see definitions section in Part 6 of the BSB Handbook) and I would therefore
be breaching rS24 if I provided a legal service to a member of the public
without being public access qualified and registered.
6. If I were to act how the immigration company seeks me to act I would be
conducting work in a manner that I am prohibited from doing and this would
therefore be a breach of CD10, my duty to take reasonable steps to run my
practice competently.