Monday, March 04, 2013

Cab Rank Rule Down Under....

Australian cabs are different to those in the UK, so I was curious to see how presenting research on an obscure rule of the English Bar would go down. It was like lightning in the picture.

Christine Parker of Monash University arranged for me to speak on "Is It the End of the Line for the Cab Rank Rule?" What made the event distinctive for me was the line up of commentators, which included Robert Richter QC, Peter Gordon, and Prof Rob Moodie.

The seminar also was jointly sponsored by the Monash University Centre for Regulatory Studies and the McCabe Centre for Law and Cancer. This last perplexed me at first, but see below.

I gave a brief summary of the paper including some of the reaction it has received from the English Bar and others. (See here, here, here and here.)

Rob Richter QC spoke in favour of the cab rank rule. He is a prominent and respected criminal QC in Victoria. His wiki page actually says
"A prominent critic of human rights violations and advocate for the rule of law, he often represents plaintiffs unpopular in public opinion, some of high profile."
Richter considered the rule a good principle espousing the right values for the Bar. It didn't deserve to be altered or removed. Where it was manipulated or evaded he saw that as symptomatic of hypocrisy not a denigration of the rule itself.

A rather different view came from Peter Gordon (former chairman of Slater & Gordon). He now runs Gordon Legal and has an interest in litigation funding. Gordon attacked the rule as pernicious in that it allowed lawyers to hide behind a professional screen that obviated the need to take moral stands while earning large sums of money. He made a crucial distinction between criminal and civil cases. His argument was in the latter camp. He was especially concerned with the role of lawyers (eg. Clayton Utz) in such cases as the tobacco litigation (McCabe v BAT) where there was extensive document destruction which increased the difficulty of the plaintiffs in establishing their case. (See Ruby Rankin's article, Liberman's BMJ piece, McCabe Centre's analysis). The cab rank rule should go in his view--it was immoral.

Rob Moodie of Melbourne University believed that the harm caused by tobacco among other toxins should not be underplayed by the use of professionals excusing the iniquities of corporate malfeasance. He was part of the legislative reform process on plain tobacco packaging introduced recently in Australia, much to the horror of the tobacco industry.

I can summarize by saying that the seminar was impassioned, lively, animated, and taught me to think more about this topic by taking me into areas I hadn't previously considered.



Malcolm Smith said...

A major problem in civil cases is when it forces a barrister to support cases where a bad, even immoral law would result in his client winning as the expense of justice. A perfectly good example would be the Andrew Bolt case, where the plaintiffs were attempting to violate freedom of speech. (Although, in this case, the barrister served pro bono - which made his action particularly reprehensible.
Another was the case in which two homosexuals sued a church organisation in order to foster an innocent child, who should have been fostered to a married couple.
For the first cab rule to apply, it is necessary for the law to be equitable.

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