About the event

This Seminar is also being delivered via webinar.

The Judgement in Bolitho v Banksia Securities Limited (No 18) (remitter) [2021] VSC 666 (Banksia Securities) begins:

In 1837, Lord Langdale observed:

With respect to the task, which I may be considered to have imposed upon counsel, I wish to observe that it arises from the confidence which long experience induces me to repose in them, and from a sense which I entertain of the truly honourable and important services which they constantly perform as ministers of justice, acting in aid of the judge before whom they practise. No counsel supposes himself to be the mere advocate or agent of his client, to gain a victory, if he can, on a particular occasion. The zeal and the arguments of every counsel, knowing what is due to himself and his honourable profession, are qualified not only by considerations affecting his own character as a man of honour, experience, and learning, but also by considerations affecting the general interests of justice.

On 9 November 2017, Mr Michael Symons of counsel put an offer of $64 million to settle two proceedings against the trustee of an investment scheme. Later that evening, his leader, Mr Norman O’Bryan SC emailed Mr Symons, his instructing solicitor, Mr Anthony Zita, and the managing director of the litigation funder, Mr Mark Elliott:

“Provided Mark can do a satisfactory and enforceable deal with Lindholm on the division of these spoils (which will be confirmed between them tomorrow), we can do this deal”

The events described in this judgment would have shattered Lord Langdale’s confidence, his expectation of lawyers as an honourable profession. The idiomatic ‘division of the spoils’ was apposite. The spoils, had they been obtained, would have been ill-gotten. The conduct in winning and dividing them was dishonourable. The truth was obfuscated. The perpetrators went to extraordinary lengths to conceal their misdeeds. Others stood by, failing in their duty to protect. About 16,000 elderly investors in a failed company had suffered substantial financial loss. The process of exposing these misdeeds was laborious, costly and delayed. The victim was the proper administration of justice.

This seminar will discuss the manifest ethical issues which arose in the Banksia Securities case, and highlight the lessons that can be applied to all aggressive, high-stakes litigation, including:

• Paramount duty to the Court
• Briefing experts
• Document Discovery
• Conflicts (including in litigation funding structures)

A not to be missed Ethics CPD for all who practise in civil litigation.