Appeals — SQE1 DR question
A worked single-best-answer question on appeals, with why each wrong option is wrong — the way SQE1 traps candidates.
A solicitor-advocate represents the appellant, Hollis Ltd, on an appeal heard by a circuit judge in the County Court. The appeal turns on the construction of a limitation of liability clause. The night before the hearing, the solicitor finds a recent High Court decision on an almost identical clause which goes against Hollis's argument. The respondent's skeleton argument does not cite it, and the respondent is a litigant in person.
Which of the following best describes what the solicitor must do?
- ASay nothing, because it is for the respondent to find authorities supporting its own case.
- BDraw the decision to the respondent's attention privately, but not to the judge's.
- CCite the decision only if the judge asks whether there are any adverse authorities.
- DDraw the judge's attention to the decision, because it is relevant and likely to have a material effect on the outcome.
- EWithdraw from the hearing, because the solicitor now knows the client's argument is likely to fail.
Show answer and reasoning
Rule: A solicitor must draw the court's attention to relevant authorities likely to have a material effect on the outcome, even if adverse to the client.
- A The duty to the court requires disclosure of material adverse authority regardless of the opponent's omission. (wrong rule)
- B The duty is owed to the court, so informing only the respondent does not satisfy it. (wrong rule)
- C The duty is proactive; the solicitor must not wait to be asked. (wrong rule)
- E An adverse authority does not oblige the solicitor to withdraw; the solicitor must cite it and may argue against it. (wrong rule)
Source: SRA Code of Conduct for Solicitors, RELs and RFLs, paras 2.7 and 1.4