Judge refuses to intervene over barrister who swapped sides

Bright: Issue had no direct bearing on hearing

The High Court has refused to intervene in a dispute over the counsel for a claimant having previously been on the record for the defendants.

Mr Justice Bright said he did not have enough information to accede to a request to refer Oluwole A Ogunbiyi to the Bar Standards Board (BSB), adding that there was nothing to stop the defendant from doing so.

In any case, the question of what information the barrister had was not relevant to the application before him.

In 2020, Dr Louis Emovbira Williams was granted default judgment in his $6.5m claim against the Nigerian government and its attorney general for matters dating back to the 1980s. Bright J was considering their application to set it aside.

He observed that, “unusually”, Mr Ogunbiyi, had been on the record as acting for the defendants between August 2020 and March 2021. He was now acting for the claimant, instructed by Westbrook Law.

“Mr Ogunbiyi assured me, orally and in writing, that he received no instructions at all from the defendants at any stage, and that before accepting instructions on behalf of Dr Williams he first checked the propriety of doing so with the ethics department of the Bar Council.

“I have also been assured by Westbrook Law that they and Dr Williams still wish to instruct Mr Ogunbiyi to represent Dr Williams, rather than any other counsel.”

The defendants argued that there was a conflict of interest and that for Mr Ogunbiyi to appear constituted a breach of rule 21 of the BSB code of conduct. This concerns conflicts of interest when accepting instructions.

“I cannot say whether Mr Ogunbiyi is or is not in breach of this or any other rule without an investigation into the circumstances, which is beyond the scope of this hearing and would, anyway, not be for me to decide,” Bright J said.

“Ultimately, it is for Dr Williams and Westbrook Law to decide which counsel to instruct; and it is for Mr Ogunbiyi to decide whether or not he can accept such instructions.”

The judge adjourned the hearing for a while to enable the parties to confirm their positions, which they did. Dr Williams and Westbrook Law said in writing that they both knew of Mr Ogunbiyi’s previous role on behalf of the defendants but had made “the informed and considered choice” to use him as counsel.

The defendants insisted that, contrary to the barrister’s assurances, Mr Ogunbiyi did receive instructions and information during the period when he was on the record for them.

“They therefore maintained their objections, as they are entitled to do, and asked me to refer the matter to the BSB. I do not consider that I can or should do so, in circumstances where I do not have sufficient information to know whether or not any breach of the code of conduct has occurred. The defendants can of course do so themselves, if they wish.”

But as none of this had any “direct bearing” on the issues before him, the judge decided not to adjourn the hearing any further.

“Whatever information or instructions Mr Ogunbiyi may have received from the defendants (if any) in 2020 or 2021, none of it has been relied on at this hearing, which has turned solely on the evidence of Dr Williams (on the one hand) and the defendants’ solicitor, Mr Amedu (on the other).

“There is no indication that Dr Williams has received any unfair advantage today by being represented by Mr Ogunbiyi, rather than any other counsel, and [counsel for the defendants] has not suggested this.”

Bright J added that the defendants had known that Mr Ogunbiyi was instructed “for some time”; despite having “plenty of time to apply for injunctive relief”, they had not done so.

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