Thursday, November 07, 2013

Duncan v Duncan: No conflict of interest

Lady Justice Macur
Duncan v Duncan [2013] EWCA Civ 1407, just reported on Bailii, is an interesting little case.

The situation: the day before the financial dispute resolution hearing the wife's counsel is alerted to the fact that, five years previously, he represented the husband in financial proceedings arising from his first marriage. Both parties are notified and the husband, who was represented by counsel, consents to the wife's counsel continuing to act for her.

The matter proceeds and the judge makes an order. We are not given the details of the order, but the husband is aggrieved and lodges an appeal, on the basis of a conflict of interest. He claims that his consent had not been fully informed, as he did not fully appreciate the issues to which he was going to be challenged and cross-examined by the wife's counsel. His appeal is allowed, and the order is set aside.

The wife then appeals against that decision.

Giving the leading judgment in the wife's appeal, Lady Justice Macur notes that the husband's counsel, being asked repeatedly to point out that information which appears to have been misused from the earlier case, was unable to identify the same and again and again merely maintained that the wife's counsel should have disclosed the information that he had.

Lady Justice Macur is not impressed. In her view, the husband's appeal was 'patently opportunistic'. Accordingly, she allows the wife's appeal, and restores the original order.

Lords Justices Ryder and Sullivan give concurring judgments.

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