The Bar Standards Board Handbook (April 2017) states,
‘rC3 You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law)…
rC9 Your duty to act with honesty and integrity under CD3 includes the following requirements: …
- you must not draft any statement of case, witness statement, affidavit or other document containing:
- any statement of fact or contention which is not supported by your client or by your instructions;
- any contention which you do not consider to be properly arguable;
- any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud…’
The Chancery Guide (2017) further states,
‘Setting out allegations of fraud
10.1 In addition to the matters which PD 16 requires to be set out specifically in the particulars of claim, a party must set out in any statement of case:
- full particulars of any allegation of fraud, dishonesty, malice or illegality; and
- where any inference of fraud or dishonesty is alleged, the facts on the basis of which the inference is alleged.
10.2 A party should not set out allegations of fraud or dishonesty unless there is credible material to support the contentions made. Setting out such matters without such material being available may result in the particular allegations being struck out and may result in wasted costs orders being made against the legal advisers responsible.’
Before accepting instructions about drafting a statement of case where a claim has been formulated and thought through by a solicitor or the lay client, it is therefore incumbent on Counsel to scrutinize and properly evaluate the basis and merits of the claim before putting pen to paper.
Therefore drafting should always be preceded by an independent claim analysis by counsel.
In a contentious probate claim, because an executor may be held personally liable for costs if he is considered to have acted unreasonably in bringing legal proceedings against a third party for the benefit of the estate, or in defending proceedings brought against him as an executor, this analysis includes consideration of whether or not an application needs to be made for directions to bring or defend legal proceeding (i.e. for a Beddoe Order), to obtain costs protection before engaging in litigation. As an application will not be necessary where all the beneficiaries are ascertained, competent and agreed as to the course they want the executor to take, counsel will first need to establish whether in fact all of the beneficiaries have been ascertained, consulted, and are agreed.
The litigation risks of a solicitor who is not a specialist will, trust, and inheritance dispute practitioner, of formulating a misconceived claim, include; (i) striking out; (ii) summary judgment, and (iii) the award of a wasted costs order against the solicitor.
The perils of a solicitor formulating a legally defective claim, which regrettably is not entirely unknown in the field of contentious probate, are highlighted by the following remarks made by Master Matthews in Haastrup v Okorie & Ors :
- It is a matter of discretion in the court as to whether to strike out a claim for lack of reasonable grounds for bringing a claim. It is after all a strong thing to drive the claimant from the judgment seat. But despite the increasingly ingenious arguments of Mr Kolick (who, I emphasise, was not responsible for advising the Claimant to bring this action or for drafting the claim in support of it) it is clear that this claim was badly thought out from the beginning. It does not matter whether the Claimant was badly advised (and, if so, by whom) or whether he was advised of the risks and nonetheless insisted on going ahead. The bitter squabbles between the parties in this and the many other legal actions which they have launched against each other in this country have had more than their fair share so far of the limited resources available in our legal system. There are other claims still to proceed. This is no time to be carrying expensive passengers.
- On this basis I will strike out the claim in its entirety, as not disclosing any reasonable grounds for bringing the claim. The First Defendant’s application notice alternatively asks for summary judgment for the First Defendant, on the basis that the Claimant had no real prospect of succeeding at trial, and that there is no other compelling reason for a trial. Strictly, I do not need to deal with this alternative application. However, I will say this. On the material presently before me, but bearing in mind of course that the summary judgment jurisdiction was not the particular focus of the arguments made before me, I consider that, if I had not struck out the claim, I would have given summary judgment for the First Defendant…
The moral of the tale for lay clients is, get it right from the start, by instructing a specialist contentious probate practitioner, and if counsel is a registered public access practitioner and is authorised to conduct litigation, you can instruct him directly from the outset. You do not need a solicitor.
The moral for solicitors, particularly commercial and general civil litigators who dabble in contentious probate, is beware of your limitations, as the consequences are likely to prove expensive.