A barrister's duty when pleading fraud

A barrister's duty when pleading fraud (Word file)

In the case of Medcalf v Mardell, the House of Lords considered paragraph 704(c) of the Code of Conduct and a barrister's duties in considering whether or not to draft a document including an allegation of fraud.

Paragraph 704 (c) states that a barrister should not draft a document containing any allegation of fraud "unless he has clear instructions to make such an allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud". In this case, the Court of Appeal had taken the view that a barrister in making such an allegation should have before him "evidence which can be put before the court to make good the allegation".

The House of Lords rejected this interpretation. Lord Bingham of Cornhill, with whom the other law lords agreed, said that:

"... the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations should properly be based upon it".

The Professional Standards Committee (PSC) takes the view that there is no litmus test for determining whether it is proper to allege fraud. As Lord Bingham made clear: "Counsel is bound to exercise an objective professional judgment whether it is in all circumstances proper to lend his name to the allegation". That decision will depend on the individual facts of each case.

It should be noted that although paragraph 704 refers specifically to fraud, the same principle would apply to any other allegation of serious misconduct.

Professional Standards Committee
March 2003