The High Court, in its recent judgment in Brett v The Solicitors Regulatory Authority,(1) has upheld the findings of the Solicitors Disciplinary Tribunal (SDT) in relation to a solicitor's breach of the duty not to mislead the court and to act with integrity. The lord chief justice warned that solicitors found to have misled the court could receive "exemplary and deterrent" punishment.
This case involved the disciplinary proceedings against Alistair Brett, former legal manager of Times Newspapers Ltd (TNL), in relation to his conduct of a 2009 High Court case involving email hacking.
In May 2009 Patrick Foster, a junior journalist at The Times, informed Brett that he had identified a high-profile internet blogger known as 'Nightjack', who chronicled his life as a police officer. Foster told Brett that he had obtained this information by gaining unauthorised access to the blogger's email account, but explained that he thought that the blogger was using confidential police information and that it would be in the public interest to expose his identity.
Brett told Foster that what he had done was not acceptable and that TNL would not publish the story unless the blogger's identity could be obtained through publicly available information. A few days later, Foster informed Brett that he had carried out this exercise and could have obtained the blogger's identity through publicly available sources.
Brett sought advice from a junior barrister in relation to whether an offence had been committed. He was advised that a crime had potentially been committed under the Data Protection Act, but that there might be a public interest defence.
Foster contacted the blogger and informed him that The Times was planning to publish an article which would expose him as Nightjack. The blogger immediately brought High Court proceedings seeking an injunction against TNL restraining such publication. TNL then instructed different barristers. Brett did not inform them of the manner in which Foster had initially identified the blogger.
During the course of the injunction hearings, Foster submitted witness evidence, TNL engaged in correspondence with the blogger's legal representatives and TNL's barristers filed a skeleton argument. The blogger's lawyers repeatedly sought confirmation that Foster had made no unauthorised access to the blogger's email account, and noted that the blogger had previously been the victim of email hacking. At this stage, Brett became aware that Foster's conduct could constitute a criminal offence under the Computer Misuse Act 1990, to which no public interest defence was available.
TNL's skeleton argument for one of the hearings noted that "as [the blogger's] witness statement shows [Foster] established the identity of the claimant from publicly available information". Further, TNL's barristers made oral submissions to the effect that they "know that that is not right" to suggest that Foster knew of the blogger's identity by virtue of breach of confidence. Brett also sent a letter stating that the suggestion that the blogger's identity had been obtained by unauthorised access to email accounts was "baseless". The judge hearing the injunction application therefore proceeded on the basis that there had been no breach of confidence.
In the course of the Leveson Inquiry, TNL was compelled to disclose emails and other materials which revealed Foster's disclosure to Brett about his initial identification of the blogger. Brett also gave evidence before the Leveson Inquiry which involved extensive scrutiny of his conduct of the litigation in relation to the blogger.
Following Brett's evidence before the Leveson Inquiry, the Solicitors Regulation Authority brought proceedings against Brett before the SDT for breaches of Rule 1.02 (failing to act with integrity) and Rule 11.01 (misleading the court).
Rule 1.02 of the Solicitors' Code of Conduct provides that solicitors must "act with integrity". The code contains further guidance as to the meaning of Rule 1.02, and notes at 2(d) that "the core duties are fundamental rules. A breach may result in the imposition of sanctions".
Rule 11.01 of the code provides that "you must never deceive or knowingly or recklessly mislead the court". The code guidance provides that a solicitor would not normally be guilty of an offence under this section if he or she inadvertently misled the court. However, if the solicitor becomes aware that he or she had done so, the solicitor must – with the client's consent – immediately inform the court or, if such consent cannot be obtained, stop acting.
In December 2013 the SDT found that, at the very least, Brett had:
- turned a blind eye both to what Foster had told him in relation to the preparation of Foster's witness statement and the correspondence with the blogger's lawyers; and
- failed to inform counsel of the true position or correct the submissions that they had made to the court, thereby allowing them to mislead unwittingly the court and the blogger's lawyers.
Brett contended that he had competing duties to the court (not to mislead it) and to Foster (in relation to breaking his confidence). However, the SDT found that Brett had failed in his duty as an officer of the court by knowingly allowing the court to be misled (contrary to Rule 11.01) and failing to act with integrity (contrary to Rule 1.02). The SDT imposed a six-month suspension from practice as a solicitor and awarded costs of £30,000 against Brett.
Brett appealed the SDT's findings of breaches of Rule 11.01 and Rule 1.02 and the award of costs (but not the six-month suspension, which he served) on the basis that the SDT had failed to give effect to the fundamental right of legal privilege, which he said attached to the information that Foster provided him in relation to the source of his initial information. He also criticised the SDT's failure to take into consideration Foster's right against self-incrimination.
The High Court found that the duty not to mislead the court (Rule 11.01) was not incompatible with the duty of confidentiality owed to Foster, and that there were various ways in which Brett could have ensured his compliance with both duties. He could have sought Foster's permission to waive privilege and disclosed the true factual position to the court, or clarified that Foster's witness statement was intended only to address the manner in which Foster could have obtained the information, rather than the manner in which he did obtain the information. Brett could have disclosed the true position to his counsel and invited them to correct the skeleton argument in order to avoid giving a misleading impression to the court.
The court upheld the SDT's decision and noted that the court hearing the injunction had in fact been misled. However, the court disagreed with the SDT's finding that Brett had knowingly misled the court, instead finding that he had recklessly allowed the court to be misled. The court also upheld the finding that Brett had failed to act with integrity.
This case serves as an important reminder for solicitors of the need constantly to have in mind their duties to the court, and that this duty may override the duty of confidence owed to their clients. It also highlights the severity of the potential consequences of failure to do so. Solicitors often find that they are asked to give statements to the court as to information that they have received from clients and third parties. These statements are frequently made in urgent applications such as injunctions. Solicitors should be cautious to ensure that where facts subsequently come to light which are at odds with their evidence, corrective statements are made. It is in the best interests of both the client and the solicitor for the solicitor to be candid and correct the record, rather than to be exposed by an opponent, which could affect not just the solicitor's disciplinary position, but also the continuation of the injunction remedy.
For further information on this topic please contact Katie Wright at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(1)  EWHC 2974.