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This book is only available in PDF format

Published: 28 April 2015
Pages: 31

Introduction

Any application to debar counsel involves a contest between two interests; the right of a party to instruct counsel of choice, and the obligations of lawyers as officers of the court and as independent counsel in litigation. Lawyers’ obligations in this area also include the professional and statutory obligations to uphold the rule of law and to act in accordance with their fiduciary duties.

The jurisdiction of the High Court to debar counsel was described by the Court of Appeal in the leading case Black v Taylor[1] in the following terms:

The High Court has an inherent jurisdiction to control its own processes except as limited by statute. As an incident of that inherent jurisdiction it determines which persons should be permitted to appear before it as advocate. In determining what categories of person may appear, it does so in accordance with established usage and with what is required in the public interest for the efficient and effective administration of justice...

Another aspect of the inherent jurisdiction is the control of a particular proceeding in the Court. There the Court’s concern is with the administration of justice in a particular case and in the generality of cases and with the associated basic need to preserve confidence in the judicial system. The right to a fair hearing in the Courts is an elementary but fundamental principle of British justice. It reflects the historical insistence of the common law that disputes be settled in a fair, open and even-handed way. It has been a mainspring of the development of administrative law over the past 40 years.

More recently, in Accent Management Ltd v Commissioner of Inland Revenue,[2] the Court of Appeal described the jurisdiction to debar counsel as requiring a high threshold before an order would be warranted, and spoke of the need for the Court to be alert to the misuse of debarring applications:

The court has jurisdiction to debar counsel or solicitors from acting where that is necessary in order for justice to be done or to be seen to be done. Removal will usually be ordered where counsel will not be able to comply with his or duties to the Court: where there is a conflict of interest, or where there is a real risk that a client will not be represented with objectivity. The threshold for removal is a high one, requiring something extraordinary. The Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party.[3]

Black v Taylor was decided over two decades ago. Counsel opposing the debarring application on that occasion referred to the undesirable prospect of a “disqualification industry” if a debarring order was made.[4] Although that prediction has not materialised, it is true that there has been a lot of activity in this area over recent years. The purpose of this paper is to identify the underlying principles and to provide guidance about the circumstances in which a debarring application may responsibly be brought or defended, together with some suggestions for how the underlying risks may be managed.
 
[1]     Black v Taylor [1993] 3 NZLR 403, at 408.
[2]     Accent Management Ltd v Commission of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374, at [32].
[3]     Accent Management, at [32] (footnotes omitted).
[4]     Black v Taylor, at 420.
 

Content outline

  • Key sources: legislation, rules, cases
  • Confidentiality
  • Jurisdiction
  • Sound principle or illegitimate tactic: what are the grounds for debarring counsel?
  • Risk management: mitigating difficulties
  • Making or defending a debarring application concluding remarks
View contents page
Paul Collins 2015 Tim Mulins 2015
Paul Collins
Barrister
Auckland		 Tim Mullins
LeeSalmonLong
Auckland

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