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Appeals — SQE1 DR question

A worked single-best-answer question on appeals, with why each wrong option is wrong — the way SQE1 traps candidates.

Appeals · Ethics

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?

  1. ASay nothing, because it is for the respondent to find authorities supporting its own case.
  2. BDraw the decision to the respondent's attention privately, but not to the judge's.
  3. CCite the decision only if the judge asks whether there are any adverse authorities.
  4. DDraw the judge's attention to the decision, because it is relevant and likely to have a material effect on the outcome.
  5. EWithdraw from the hearing, because the solicitor now knows the client's argument is likely to fail.
Show answer and reasoning
D is the best answer. A solicitor must draw the court's attention to relevant cases and statutory provisions which are likely to have a material effect on the outcome of the proceedings (SRA Code of Conduct for Solicitors, para 2.7). This applies even where the authority is adverse to the client and the opponent has missed it. The solicitor can then argue that the decision is distinguishable or wrong.

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

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