Registrar: My Lord, there is a letter.
Court: Counsel, have you seen the letter from your learned friend?
Counsel: I am surprised. I don’t have any letter. The matter is for trial. And I am ready with two of my witnesses…
Ellias Olatunde Ajadi
A litigation attorney is always exposed to an array of shenanigans from counsel representing the other litigant or litigants. One of the most annoying is a letter seeking the court’s indulgence for an adjournment especially on the day the matter was set to go into trial or an adjourned hearing of a pending application or preliminary objection. The frustration is compounded by having such letter delivered to you while already in court or worst still only the court was served with the letter.
Imagine that you have prepared for the day’s business by having a thorough pre-trial with the witness or painstakingly reviewing your file. Relevant pleadings and depositions had been revised. Rules of court and the Evidence Act and quick reference practice materials handy in your brief case. Or perhaps the case was to come up for hearing of an interlocutory proceedings, and the ever ready courtroom warrior in you had all the relevant cases and law reports ready to be deployed. Then it gets to your turn, and the ambush!
To be clear, litigation can be very exciting especially when you are in the big league exposed to exciting legal issues representing big individual or corporate clients in diverse business sectors and industries. On the flipside, the anxiety, stress and consequent emotional baggage could be, literally, killing. Received wisdom is that legal practice especially the litigation side of the vocation is a “jealous spouse’’. So, given that in this clime litigation might drag endlessly, pity litigation attorneys. When the tolls hit or for some good reasons (for example a sudden medical emergency) counsel may not be able to attend court on a particular day, and there is no partner or an associate in Chambers or a junior colleague to carry on, or even a learned friend to hold brief, possibly to appeal to the court for an adjournment on the day, a letter requesting an adjournment might just do the trick. Such letter should state the cause of the inability to attend the proceedings and possibly suggests dates which the court might, subject to its diary, consider to further adjourn.
However, the other counsel who made his way to the court having prepared for the day’s business deserves some consideration. It is a no-no to write a letter seeking the court’s indulgence for an adjournment without the courtesy of copying the other counsel. We have encountered instances where the copy is only delivered to the opposing Counsel right inside the court – fair enough, but unfair still given the likely arduous journey he might have endured to get to court. The worst is when the reality hits that an adjournment is being requested when the court graciously directed the registrar to show you a copy of same. It is this ambush that every litigation attorney dread.
A letter written by a counsel to seek an adjournment from the Court is a correspondence within the purview of Rule 31 (5) of the Rules of Professional Conduct 2007.
“Except as provided by a rule of order or court, a lawyer shall not deliver to the judge any letter, memorandum, brief or other written communication without concurrently delivering a copy to the opposing lawyer.’’
The implication of this rule of ethics should not be lost on any counsel who wishes to seek an adjournment vide a letter. Once the opposing Counsel is not concurrently copied and made aware, counsel reserves the right to oppose the adjournment and could insist that the court should proceed with the business of the day. Perhaps should the court be reluctant to jettisoning the letter, a good ground for award of punitive costs exist. It could even serve as a basis for a complaint of violation of the RPC not minding that it is about a “little’’ matter of letter of adjournment.
Given that legal practice is fast evolving with information technology becoming more and more in use, the least one should expect is that in the event that concurrent delivery of a letter of adjournment to the opposing Counsel is not feasible, a text message followed with a call should be made. It is even desirable if such communications is vide email to demonstrate some level of seriousness and responsibility.
One hopes that learned colleagues would imbibe this ideal for the sake of the profession we cherish. Similarly, our courts must readily uphold Rule 31(5) RPC or sanction erring counsel in punitive costs.
Ajadi (firstname.lastname@example.org) is a senior associate at Wale Taiwo & Co, Magodo GRA Phase II, Lagos
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