THE ISSUE: The professional duties of regulated persons (solicitors and barristers in England and Wales) regarding both legal arguments and cited legal authorities presented by opponents in submissions, and whether a failure to address either constitutes prima facie evidence of a breach of duty.
1. Introduction
1.1 Purpose
This report analyses the professional duties of regulated persons (solicitors and barristers) in England and Wales concerning the need to address points raised by opponents in submissions. Specifically, it examines:
- Whether putting forward a legal argument in submissions creates a duty for the opposing regulated person to address that argument.
- Whether citing a legal authority in submissions creates a duty for the opposing regulated person to address that authority.
- Whether a failure by the regulated person to address either an opposing argument or a cited authority constitutes, on its face (prima facie), sufficient evidence to suggest a breach of professional duty.
1.2 Context: Regulation and the Duty to the Court
The conduct of solicitors and barristers is governed by regulatory frameworks overseen by the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB), respectively, under the Legal Services Act 2007 (LSA 2007). Both frameworks establish comprehensive codes of conduct – the SRA Standards and Regulations and the BSB Handbook – underpinned by core principles and duties. Central to these is the paramount duty owed to the court in the administration of justice, which overrides other obligations, including the duty to the client, where they conflict.
1.3 The Adversarial System
The legal system in England and Wales operates primarily on an adversarial basis. Opposing parties present their cases, evidence, and arguments to an impartial judge (or jury), who decides the outcome. Advocates are expected to represent their client’s interests vigorously but ethically within this framework.
This report will examine:
- Relevant professional duties concerning submissions, misleading the court, and citing authority.
- Whether these duties create an obligation to respond to opposing arguments and/or cited authorities.
- Whether failure to respond constitutes prima facie evidence of a breach of duty.
- A concluding summary and practical considerations.
2. The Advocate’s Duties in the Adversarial System
2.1 The Paramountcy of the Duty to the Court
As noted above, the duty to the court in the administration of justice (BSB CD1; SRA Principle 1) is paramount and overrides other duties, including the duty to the client (BSB CD2; SRA Principle 7), in cases of conflict. This hierarchy dictates that all advocacy decisions must align with the duty to the court.
| Duty Category | SRA Principle / BSB Core Duty | Hierarchy | Relevant Rules/Guidance |
|---|---|---|---|
| Duty to Court / Rule of Law / Administration of Justice | SRA Principle 1 / BSB CD1 | Paramount (Overrides other duties in conflict) | BSB gC1, rC3; SRA Principles Notes () |
| Honesty / Integrity | SRA Principles 4, 5 / BSB CD3 | Subject to Duty to Court | BSB gC1; SRA Code 1.4 () |
| Independence | SRA Principle 3 / BSB CD4 | Subject to Duty to Court | BSB gC1; SRA Principles Notes () |
| Best Interests of Client | SRA Principle 7 / BSB CD2 | Subject to Duty to Court, Honesty/Integrity, Independence, Non-Discrimination | BSB rC4, gC1; SRA Principles Notes () |
| Confidentiality | SRA Principle (implicit) / BSB CD6 | Subject to Duty to Court (but court duty does not require breach of confidentiality – BSB rC5) | BSB rC5; SRA Code 6.3 () |
| Competence | SRA Principle (implicit) / BSB CD7 | Subject to Duty to Court | BSB Handbook; SRA Code 3.2 () |
| Equality, Diversity, Inclusion / Non-Discrimination | SRA Principle 6 / BSB CD8 | Subject to Duty to Court | BSB gC1; SRA Principles Notes () |
A fundamental obligation is not to mislead the court, knowingly or recklessly, by act or omission. SRA Code 1.4 explicitly includes omissions. BSB Rule rC6 prohibits misleading conduct, and guidance gC4.2 clarifies that this includes failing to correct an inadvertent misleading statement upon realising the error. This imposes a duty of candour, but its application to failing to address opposing points requires careful interpretation.
Submissions made to the court must be “properly arguable” (SRA Code 2.4). Advocates must also avoid abusing their role or wasting court time (BSB rC3.2, rC3.3). These rules govern the advocate’s positive case but don’t explicitly mandate responses to opponents. Persisting with an argument known to be fatally undermined by an unanswered point could, however, potentially breach the duty not to mislead.
Both regulators impose a clear, positive duty to ensure the court is aware of relevant legal authority (binding cases and statutes), including authority adverse to the client’s case.
- SRA Code 2.7: Requires drawing attention to “relevant cases and statutory provisions… likely to have a material effect on the outcome…”.
- BSB Rule rC3.4: Requires taking “reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions”.
- BSB Guidance gC5: Explicitly states this includes adverse decisions/provisions, especially when opposing a litigant in person.
This duty ensures the court decides based on the correct legal framework. The rules focus on “relevant decisions” (typically binding precedent) and legislation. There is no explicit rule-based duty to cite non-binding authorities (e.g., dissenting opinions, academic commentary), although broader duties of competence and assisting the court might influence professional judgment in specific cases. Deliberately ignoring highly relevant non-binding authority while relying on favourable non-binding authority could potentially risk misleading the court by omission.
3.1 Legal Arguments
- No Specific Duty: There is no specific professional duty requiring a response to every legal argument raised by an opponent. The explicit duty relates to adverse legal authority.
- Adversarial Context: The adversarial system relies on parties presenting their case and challenging the opponent’s. Selecting which arguments to engage with is part of advocacy strategy and professional judgment.
- Misleading by Omission (Arguments): Generally, failing to address an opponent’s argument is unlikely to be misleading by omission. Silence doesn’t equate to concession. However, in rare circumstances, strategically ignoring a central, powerful argument known to the advocate, such that the overall submission becomes fundamentally distorted, could potentially cross the line into misleading by omission.
3.2 Cited Legal Authority
- No Explicit Rule: Again, there is no explicit rule mandating a response to every cited authority.
- Strong Professional Expectation: However, the combined effect of the duties of competence (CD7/Code 3.2), not misleading the court (CD1/rC6; P1/1.4), and assisting the court (CD1/P1) creates a strong professional expectation that advocates will address significant legal authority cited by opponents, especially if it is adverse and relevant.
- Competence: Ignoring significant, relevant, cited adverse authority could readily be seen as falling below the standard of competence.
- Misleading by Omission (Authority): Persisting with submissions directly undermined by cited adverse authority, without addressing it, carries a significant risk of misleading the court by omission.
4. Failure to Respond: Prima Facie Evidence of Breach?
4.1 Defining Prima Facie Evidence
Prima facie evidence is evidence that, “at first sight,” appears sufficient to establish a fact or case, creating a rebuttable presumption unless contradicted. It is a preliminary threshold, lower than the balance of probabilities.
- Failure to Respond to Arguments: Since no specific duty exists to respond to every argument, failure to do so cannot, in itself, be prima facie evidence of breaching that (non-existent) duty. It is also highly unlikely, without more, to constitute prima facie evidence of incompetence or misleading the court, as assessing these requires a holistic view and likely expert evidence.
- Failure to Respond to Cited Authority: This presents a stronger case. Given the professional expectation to address significant cited adverse authority, a failure to do so could constitute prima facie evidence of a breach of the duty of competence or the duty not to mislead by omission. The omission itself raises questions. However, context remains crucial (centrality/binding nature of authority, opportunity for reply, overall case presentation) and a definitive finding would require more than the omission alone.
- Distinction from Professional Negligence: It’s important to distinguish regulatory breach from professional negligence towards the advocate’s own client. Failing to address a key cited authority might not breach regulatory rules but could still be negligent if it fell below the standard of a reasonably competent professional and caused the client loss.
5. Conclusion and Recommendations
5.1 Summary
- There is no specific professional duty for solicitors or barristers to respond to every legal argument raised by an opponent.
- There is a strong professional expectation, derived from duties of competence and candour, to address significant cited adverse legal authority raised by an opponent.
- Failure to respond to an argument is generally not prima facie evidence of a breach of professional duty.
- Failure to address significant cited adverse legal authority presents a stronger basis for a prima facie finding of breach (competence or misleading by omission), although context remains crucial.
5.2 Practical Implications and Recommendations for Regulated Persons
- Exercise Professional Judgment: Deciding which arguments and authorities require a response is a key advocacy skill requiring competent and ethical judgment.
- Focus on Core Duties: Ensure your own submissions are “properly arguable” and do not mislead. Always fulfil the specific duty to cite adverse authority you are aware of.
- Assess Materiality: Carefully consider the impact of ignoring central, powerful, or potentially decisive arguments or cited authorities raised by an opponent. Failure to engage appropriately can weaken your case or risk misleading the court.
- Documentation: Consider documenting the reasoning behind strategic decisions not to address significant opposing points, especially concerning cited authority.
- Client Communication: Ensure clients understand the hierarchy of duties, particularly the paramountcy of the duty to the court.