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(Court of Appeal, Macur, Ryder, Sullivan LJJ, 9 October 2013)
On the day before the final hearing in financial remedy proceedings, counsel for the wife realised that he had acted for the husband in financial proceedings in relation to his first wife. Both solicitors and the district judge were informed but the wife wished for counsel to continue to represent her, a course to which the husband also consented.
The husband's appeal was allowed on the basis that it was questionable whether he had given fully informed consent and that some of the matters upon which he had been cross-examined created an inescapable conflict of interest. While counsel had not deliberately misled any party the perception of fairness was at the heart of the appeal. The wife appealed.
In taking into consideration the principle in Prince Jefri Bolkiah v KPMG  2 AC 222 and para 603D-F of the Bar Council Code of Conduct, the Court of Appeal found that the husband's complaint was not that information from previous proceedings was used against him but that his cross examination took him by surprise and undermined his case. The fact that counsel had used skeleton arguments from the previous proceedings had no evidential weight and there had been no opportunity to use them in order to advance the case. The husband's appeal was opportunistic. The wife's appeal was allowed and the original order restored.
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