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The conduct of the Bates litigation in the Post Office Scandal raises a number of ethical problems. In particular, it would appear that the solicitors acting for the Post office may have put forward a number of misleading assertions to the court. Fraser J on a number of occasions expressed the view that the written statements submitted to the court “bore very little semblance” to the evidence given in person. This raises problems about the ethical practices of the solicitors. Solicitors are under a duty, through the SRA principles, to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice. In particular, this obligation includes the requirement that solicitors do not mislead or attempt to mislead the courts or others. The solicitors acting for the post office could be accused of breaching their professional duties in this way. By submitting witness statements that turned out to be contradicted by the evidence given by witnesses, the solicitors could be accused of providing evidence that led to a very different view of the evidence that was to be given by the witnesses. In some ways, it may be observed that this problem arose as a result of the solicitors giving too much deference to their clients interests. This drives the model of “mere-zeal” suggested by Dare, which encourages that lawyers zealously represent their clients interests so far as it is within the bounds of the law. In this way, it could be suggested that the solicitors acting for the post office zealously represented the evidence to be given by witnesses in their written submissions. Of course, this raises the other issue that in reality solicitors should not be the ones writing the witness statements, but this appears to have happened in this case. Perhaps a better approach for the solicitors representing the Post Office would have been to follow the Justice approach envisioned by William Simon. This approach encourages lawyers to act in a way that best ensures the proper administration of justice. In this scenario, the interests of justice would appear to encourage solicitors to insist that it was the witnesses themselves who wrote the witness statements, in order to ensure that they were reflective of the statements that the witnesses would give. This would be more in the interests of justice because it would allow the other side to the dispute to be better prepared to cross examine what the witness was saying.

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Within the Bates litigation, there are clear ethical dilemmas and breaches attributable to the POL litigation team due to the approach that they have taken to the proceedings. The proceedings were held before Fraser J, who was heavily critical of the approach taken by the POL and their overall conduct within the litigation. One main issue that Fraser J noted was the costs of the litigation, and the POL’s clear attempt to increase costs substantially to make the proceedings as arduous as possible. It was noted that the “Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and as expensive as it can”. This approach clearly breaches SRA Principles, namely acting in a way that upholds the proper administration of justice. By attempting to increase the costs substantially (costs were in excess of £27million), it was clear that the legal representatives were trying to act in their clients’ best interests but in contravention of this principle, as this implies that they were attempting to prevent justice from being brought through making the litigation unaffordable for the claimants. This approach is clearly zealous – as the legal team are clearly working in the best interests of their client, however, it is clearly a hyper – zealous approach that the lawyers have taken. Rather than acting in their clients’ interests within the legal boundaries provided, they have acted unethically by deliberately trying to make the administration of justice as hard as possible by making the process as difficult and as expensive as possible, potentially with the hope that the claimants give up or can’t afford to continue in order for their client to win. This approach clearly breaches the SRA principles, and it shows that by taking a hyper-zealous approach does not provide an acceptable balance, as it commonly breaches obligations to the law and administration of justice, and the approach is dominated too heavily by the clients’ interests.

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The recusal application in POL was made in response to the handing down of the Common Issues judgment. The official purpose of the application is to replace the judge with another and allow the trial to continue. However, the POL’s hyper zealous application demonstrates an aggressive strategy, that Coulson LJ believed to be more tactical than legitimate, perhaps designed to intimidate Lord Grabiner. POL’s lawyers may have breached Principle 4, acting with honesty. Mr Godeseth demonstrated that Fujitsu had, and utilised remote access to branch accounts. This discovery is clearly damaging to POL’s case and further weakens the recusal application, illuminating “wholly unjustified and wholly unpersuasive” statements. A breach may have occurred, however, the application is just that, an application, and so may not be decisive. A more cooperative, relational approach would likely have mitigated these risks, as POL could have approached Lord Grabiner ahead of the application, demonstrating a partisan and unopen position. A relational approach would first keep proceedings courteous and formal, rather than informal and personal as has happened. Moreover, some Board members at POL seemed unaware of the application, a more relational approach would have allowed greater scrutiny from all on the Board, which could have addressed the false accusations of bias.

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According to the SRA, lawyers have a professional obligation to act in the best interests of their clients (SRA Principle 7). However, in the preamble of the SRA principles it is highlighted that where there is a conflict between the administration of justice (SRA Principle 1) and Principle 7, Principle 1 will prevail. Simon asserts “no social role encourages such ambitious moral aspirations as the lawyer’s, and no social role so consistently disappoints the aspirations it encourages.” Indeed, due to contextual influences as highlighted by Langevoort it has been noted that lawyers can often neglect their overall duty to uphold the rule of law, by “getting comfortable” in organisations/firms. Consequently, lawyers who place considerable emphasis on Principle 7, through adopting an overtly zealous approach the standard conception can potentially face breaching their professional obligations. An example of such zealous advocacy, can be seen in the conduct of the Bates litigation trial. Here, lawyers acting on behalf of the POL, arguably mislead the court based upon unacceptable evidence contrary to Rule 1.4 SRA Code of Conduct. Judge Fraser stated that the counsel for the POL had “entirely unwittingly, and on instruction, provided misleading information to the court”. The effects of the Post Office Scandal were catastrophic for many post sub-masters and their families, with some being sentenced to prison. To reduce the likelihood of such behaviour occurring again, academics such as Simon would argue in favour of a justice approach to lawyering. This would mitigate the number of lawyers committing professional misconduct by “tak[ing] those actions that, considering the relevant circumstances of the case, seem likely to promote justice.”

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One clear example of professional misconduct in this case regards the management of evidence, specifically witness statements. In this particular case witness statements were doctored and edited by the legal counsel for the Post Office. Moorehead assess that ‘statements did not bear proper relation to underlying documentary evidence’; essentially the witness statements presented to the court were not accurate as details detrimental the Post Office case were often removed and subsequently the statements were misleading. This calls into question the professionalism and competence of how evidence was managed on this case. The SRA professional code explicitly details that lawyers must uphold the proper administration of justice. In this case if false witness statements are submitted to the court as evidence how can one expect justice to be properly administered? To take this a step further by doctoring the evidence are the lawyers on this case perverting the course of justice? Examples such as Mr Godesth’s written statement baring little semblance to what had been portrayed in his submitted witness statement evidences the professional misconduct committed in managing evidence; to an extent that may be concluded as perverting the course of justice. One explanation for this misconduct is zealous approach advocated for by Tim Dare- ultimately; lawyers act in the best interest of their clients. However, Tim Dare advocates for mere zeal which does not permit lawyers to do anything illegal and in this case Dare would argue a hyper zeal approach has been taken which the standard conception should not allow. Potentially, an explanation for this hyper zeal approach to managing evidence could be attributed to mounting internal pressure as the case went on; a view supported by Langevoort who recognises how internal pressures particularly for in-house lawyers can lead to a hyper zeal approach to practice. An alternative approach to professional ethics that may have helped is Simon’s justice approach- of course to factor in the interests of the client but ultimately in a manner that forwards the interests of justice. This allows lawyers to step back and take a wider view on their actions opposed to a narrow legalistic one. Potentially, if adopted the lawyers in this case would not have managed the evidence in such an ethically compromising way. This approach is supported by Paul Gilbert who describes lawyers as the metaphorical brake for their clients. By taking a wider view the lawyer helps prevents themselves and their client from committing professional misconduct and therefore better balances their obligations to the law to properly administer justice with the interests of their client.

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The recusal application was made zealously without following the typical protocol and could be argued to be done to prevent one of the POL witnesses from giving evidence which was damaging to their own case as an attempt to minimise or destroy the detrimental evidence. This attempt would contradict the lawyers’ obligations to justice. Additionally, the suggestion that the recusal process was carried out as a tactical move attempting to threaten or intimidate. This demonstrates that Lord Grabiner was acting zealously in attempt to remove the detrimental evidence and went about this aggressively. Therefore, he did not act in the interests of justice but only on the interests of the client and potentially his own reputation. Finally, the voting process carried out by the board surrounding the recusal process may suggest the concerns of POL and their tactics in carrying out the process in this manner. It suggests that they were aware of the wrongdoings and therefore by aborting the trial at this point the culpability of the organisations and some individuals involved, may have not come to light.

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The lawyers acted zealously to their detriment. They aimed to gain the best outcome for their client, but by doing so exercised disregard for the administration of justice and their obligation to the law.
Dare disagrees with Luben, in that the lawyer should do all they can to secure their client the best outcome – exhausting the law of all that it can be made to give.
Dare takes the approach that lawyers have no special responsibilities to allow their clients to avail themselves of resources or benefits that lie outside the law. The lawyer’s responsibility is to further the interests of the client, insofar as the institutional rights and duties of the client allow.
In Lubens mind, the lawyers will have acted hyper zealously when disclosing documents with redactions and acting in the court without sufficient evidence.
However, Dare will view this as overstepping the line, not only have they exhausted the law of all its worth but shown disregard for the administration of justice.
Perverting the course of justice by advancing hostile examinations with no evidence – the court could have been drawn into false information making assumptions without any real proof or empirical evidence behind them – LEADS TO SPECULATION.
The Solicitors are not following the SRA Code of Conduct.
1 - You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).
By redacting evidence and information from documents the solicitors were attempting to mislead the courts – not supplying all relevant information needed for correct court proceedings to take place and limiting the Administration of justice.
2 - dispute resolutions and proceedings before courts, tribunals, and enquiries
You do not misuse or tamper with evidence or attempt to do so
You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.
Tampered with evidence by redacting information.
You draw the courts attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings.
One redaction concealed evidence of POL’s executive committee having knowledge of Horizon flaws.