ETHICS IN CHAMBER HEARINGS: OBSERVATIONS ON CERTAIN PRACTICES

Citation(2008) 20 SAcLJ 746
Date01 December 2008
Published date01 December 2008

Counsel’s ethical conduct in interlocutory chamber hearings (including his preparation of materials for this purpose) is rarely the subject of independent focus despite the vital role of these proceedings. This article examines certain areas of chamber practice which require attention in the interest of the integrity of the adversarial process and the administration of justice.1

I. Introduction

1 Interlocutory proceedings in chambers2 abound in the civil work of the courts and constitute a critical area of the litigation landscape. They are fundamental to the progress of an action in that they enable the parties to effectively prepare their cases, explore options for the settlement of their dispute, and preserve their rights until the case is finally resolved or determined. Despite their enormous significance to the administration of justice, very little attention is given to them by books and articles on ethics. Although the Legal Profession (Professional Conduct) Rules (“LP(PC)R”) address ethics in court proceedings generally,3 none of the provisions focus specifically on hearings in chambers.4 Indeed, some rules of the LP(PC)R are unnecessarily limited to proceedings in open court. For example, r 55(c) states that an advocate and solicitor must “assist the Court in ensuring a speedy and efficient trial and in arriving at a just decision”. There is no reason why the purposes of this rule (which is literally confined to trials) should not be expressly applied (in modified form) to a hearing

in chambers.5 Order 32 of the Rules of Court (“RC”), which declares itself as governing “Applications and proceedings in chambers”, comes desperately short of its promise. The Order has nothing to say about what is expected in the course of a hearing in chambers.6 Indeed, it is the absence of a fixed procedure for chamber hearings which raises various important ethical issues as to how counsel should act and conduct himself in this forum.7

2 The purpose of the article is to examine some of the more common ethical issues which arise before a registrar or a judge in chambers. The following section (entitled “Conduct in chambers”) includes a consideration of the status of a hearing in chambers, counsel’s manner, punctuality, timely filing of written submissions, presentation of argument and use of authorities, the relationship between counsel in the course of the hearing, and the relationship between counsel and unrepresented litigants. This will be followed by “Justification of interlocutory proceedings”, which analyses counsel’s ethical responsibility regarding the question of whether an interlocutory application or appeal should be initiated. In the final section, consideration will be given to ethical issues which arise from documents used in proceedings in chambers (including, in particular, pleadings and affidavits).

II. Conduct in chambers
A. Status of a hearing in chambers

3 At the risk of stating the obvious, a private hearing before a registrar or a judge in a chamber at the back of the court or in the administrative section of the court premises is no less an adjudication by the court than an open hearing before a judge in the much larger, grander and formal setting of the public court room. Yet, a comparison of counsel’s manner in chambers and in open court sometimes gives the impression that the relative informality of a chamber hearing permits a relaxation of attitude to the court and standards of presentation. This is a grave misconception which is wholly unsupported by the law.

4 The term “chambers” is not defined by the RC. However, there is no question that a hearing in chambers is a hearing in court.8 The court operates in chambers as a matter of practicality: normally to adjudicate over interlocutory and other affidavit-based proceedings which do not require the resources of the open court, nor demand public access. The fact that a hearing involving a judge in open court is often referred to as a court to distinguish it from a hearing in chambers does not deprive the latter of its status as a court. The real distinction between hearings in open court and in chambers is that the latter are conducted in private (although a judge sitting in open court may order the proceedings to be held in private (in camera) in the appropriate circumstances). The general position is that only the parties or their counsel may present cases in chambers. The court has the discretion to permit the attendance of other persons only if this is appropriate and in the interest of justice.9 The standing and authority of the court hearing a matter in chambers has been re-affirmed in a spate of recent cases.10

B. Counsel’s manner

5 It follows from what has been said about the status of a hearing in chambers that counsel must extend the same level of courtesy and politeness to the hearing registrar as he would to a judge in the course of a full trial in open court. Rule 55(a) of the LP(PC)R states that an advocate and solicitor must “act with due courtesy to the Court before which he is appearing” and this clearly includes proceedings in chambers. The rule does not simply require the politeness one would expect from persons at a social gathering! Nor should “due courtesy” in r 55(a) be construed in the same sense as the “courtesy” expected of advocates and solicitors in the course of their relationship (pursuant to r 47). Rule 47 is concerned with professional courtesy between peers whereas the words “due courtesy” in the context of r 55(a) import a deeper level of respect to which the court is entitled by virtue of its standing and authority. The advocate and solicitor must honour the court, for the court is an institution which has the ultimate authority and responsibility to dispense justice. An advocate and solicitor who

fails to honour the court fails to honour himself as an officer of the court.11 Honour comes from honouring: “Honor est in Honorante”.

6 Indications are that many practitioners fail in this responsibility to the court irrespective of their career level. For example, it has been reported that the conduct of some experienced counsel in chambers, particularly before the younger registrars, has been disrespectful, if not insolent. Such conduct is grossly improper and unbefitting an advocate and solicitor, particularly a senior practitioner, who should set the standard of correct behaviour. He should know better than to discourteously attempt to impose his views of the case on the court so as to influence the outcome of the proceedings. Counsel are entitled (indeed, expected) to argue their cases forcefully on behalf of their clients.12 However, such leeway is not a licence to denigrate the court and to compromise its integrity. Even a junior registrar of the Subordinate Courts hearing a simple, routine matter is entitled to the same respect and courtesy due to the Court of Appeal adjudicating a case of national importance. A court is a court whatever its level of authority and the subject matter of the proceedings.

7 At the other end of the spectrum, some of the younger practitioners have at times given the impression that their newly acquired status as advocates and solicitors has graced them with a monopoly on wisdom. Some present their arguments on the assumption that they will be accepted without question. They may become visibly resentful when a cited authority has not made the expected impact on the registrar. Others come into chambers late13 without apology or excuse, and there is a lack of contriteness when the court raises their improper conduct. Insufficient research or lack of preparedness, perhaps the outcome of youthful over-confidence, is also a feature of the immature presentation in chambers. Giving evidence from the bar is another. Self-reflection and a profound consideration of the advocate and solicitor’s role in court, which must always be consistent with the interests of the administration of justice which he is duty-bound to assist,14 would do much to inculcate the appropriate attitude. Various aspects of this responsibility will be considered under the following headings.

C. Punctuality

8 Counsel are required to be punctual in chambers as a matter of respect for the authority of the court.15 As a general principle, it is inexcusable to keep the court waiting. Punctuality is also vital to the efficiency of the administration of justice which counsel is bound to assist.16 Rule 55 emphasises this principle by providing that counsel “shall at all times … use his best endeavours to avoid unnecessary adjournments, expense and waste of the Court’s time,17 and assist the Court in ensuring a speedy and efficient trial and in arriving at a just decision”.18 It is submitted that the word “trial” should be interpreted purposively to extend to all court hearings including proceedings in chambers. Practice directions in both the Supreme Court and Subordinate Courts are consistent with this interpretation and emphasise the importance of punctuality by requiring all advocates and solicitors:

… appearing in any cause or matter to be punctual in attending Court as delay in the commencement of the hearing leads to wastage of judicial time. Appropriate sanctions may be imposed for solicitors who do not arrive for hearings on time.19

9 The excuse that counsel “had to be in another court” is not generally acceptable. It is not for the court to subject itself to counsel’s convenience. If counsel cannot avoid concurrent hearings, or hearings so close to each other that he is bound to be late for one of them, his law practice should make the necessary arrangements to enable him to limit his representation to one of the hearings.20 On a related matter, it is not acceptable practice for the “busy” counsel to ask the opposing counsel to represent the former in an uncontested proceeding:

The Honourable the Chief Justice21 has observed with concern the increasing tendency of...

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