Duty to cite an adverse Court of Appeal decision the opponent has missed (Code 2.7)
Daniel Mensah, a solicitor-advocate, represents the defendant in a County Court breach of contract claim. His client's defence depends on arguing that an exclusion clause printed on a delivery note was incorporated into the contract. While preparing for trial, Daniel finds a recent Court of Appeal decision on materially indistinguishable facts which holds that such a clause was not incorporated. The claimant is a litigant in person and has not cited it. The judge has not mentioned it.
Which of the following best describes what Daniel must do?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: Draw the court's attention to the Court of Appeal decision, even though it is adverse to his client's case.
THE RULE TO REMEMBER
A solicitor must draw the court's attention to relevant authorities likely to have a material effect on the outcome, even when they are adverse to the client and the opponent has missed them.
Duty to cite an adverse Court of Appeal decision the opponent has missed (Code 2.7)
Paragraph 2.7 of the Code requires a solicitor to draw the court's attention to relevant cases and statutory provisions of which they are aware and which are likely to have a material effect on the outcome of the proceedings. A recent Court of Appeal decision on materially indistinguishable facts binds the County Court and is likely to decide the incorporation issue, so Daniel must cite it. It does not matter that it harms his client, or that the opponent is a litigant in person who has missed it. The duty is owed to the court and supports Principle 1 (the proper administration of justice) and para 1.4 (not misleading the court, including by omission). Where a client's interests conflict with the duty to the court, the duty to the court prevails. Daniel may still put forward any properly arguable point (para 2.4), for example on why the clause should be treated differently, but he cannot keep the decision from the court.
Why A is wrong: Para 2.7 imposes a duty on the advocate to draw relevant cases to the court's attention, whichever side they help.
Why B is wrong: The duty is proactive; it does not depend on the judge asking.
Why C is wrong: Telling the opponent does not discharge Daniel's own duty to the court.
Why E is wrong: Citing adverse authority is a normal part of an advocate's duty to the court and is not a reason to stop acting.
A little more practice done.
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