It’s Friday. I’ve been staring at a screen all day and my eyes have gone funny from scrolling through spreadsheets. I need a change of scene before resuming the trawl. Or failing that a change of topic. Aha. I’ll tackle that QLR judgment.

I tell you now, I am perplexed by this one. I’ve been mulling it over in the back of my brain all week and its got me awl of a muddle.

In the back of my brain I have been thinking up amusing alternative meanings for ‘QLR’….imaginative unabbreviations if you will.

• Quite Limited Role.
• Question Lots. Really?
• Questions Lack Relevance?
• Questioning Like Rumpole
• Questioning Lite. Representation?
• Quite Literally Ridiculous…
• QLR Law: Resources?
• Quash Litigants’ Rights
• Quell Litigant Rebellion
• Quite Like Representation
• Quixotic, Lost, Rare…
• Questions Largely Rhetorical
• Quizzical Looks Required
• Quick, Let’s Run….
• QLR Lost? Right….

Enough nonsense. To the case! Which is: K v P (Criminal Solicitor as Court-Appointed QLR) [2025] EWFC 321. (You can tell me later if my unabbreviations are apt/funny/tedious).

As the title of the case suggests, it involved a solicitor who had been appointed by the court as a QLR for a father accused of domestic abuse, and who was ALSO appointed by that father as his representative in criminal proceedings about domestic abuse (apparently involving the same parties but not necessarily relating to the same specific matters running in the Family Court). We aren’t told how it came to pass that a QLR was appointed or which appointment came first, but in my experience courts usually operate a list, and work through the list in order until a QLR says ‘yes’ they are available.

The mother, who complained of domestic abuse, said that this was inappropriate and unfair. It gave rise to a conflict of interest and would diminish her ability to give her best evidence. Part of her complaint (quite a big part on my reading) was that this solicitor would have unfair access to the family court papers and knowledge of the criminal proceedings.

If I mentally put myself in her shoes I can understand where she was coming from. I can understand why the argument was advanced.

But.

Just because somebody feels that something is unfair doesn’t necessarily mean it is. And fairness is a two way street. And here the father didn’t agree it was unfair. And so it came to pass that the matter was passed to the President of the Family Division, to decide what the right answer was in this particualr case, and indeed in cases like this. Cases involving QLRs are, frankly, new and uncomfortable territory for all of us (lawyers and judges alike), so anything that helps us navigate them is welcome.

The President wasn’t dealing with this as an appeal – he was sitting in the Family Court as a first instance judge. I imagine that this is because the original judge thought it was a good idea to let the ‘big cheese’ work this out, for our general edification. This is, I think, the second time the President has been invited to sit in the Family Court to sort out a QLR related conundrum (the first being the case which dealt with what to do if you can’t find a QLR (at a time when QLRs were really on the red list). TLDR answer: judge may just have to crack on and ask the questions herself, even though the entire reason Parliament legislated for QLRs was because this was unsatisfactory). Perhaps as a mark of the trickiness of topic, the big Cheese permitted the intervention (at whose suggestion I’m not sure) of something called the AQLR (Association of QLRs) and the rather better known ALC (Association of Lawyers for Children), and Right to Equality. The submissions of the former two organisations are summarised briefly, and appear to form the backbone of the decision.

Having heard argument, the President concluded that:

• The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party. each case will fall to be evaluated on its own facts,
• Where a QLR is also a criminal representative the court will give careful consideration to the question of whether the court appointment should be discharged. It will consider whether the dual role:
  • compromises the appearance or actuality of QLR independence;
  • undermines the protective purpose of the QLR scheme;
  • creates a real or perceived conflict of interest; or
  • introduces a material imbalance of disclosure or cross-jurisdictional knowledge.
  • In any given case other factors may also be in play.
• It is difficult to contemplate many cases where it will be proportionate to continue a lawyer’s appointment by the court as QLR where that lawyer also acts directly for the prohibited party in related criminal proceedings.
• For the court to continue such an appointment will normally cut right across the aim of the provisions in Part 4B and PD 3AB, which is to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress.

The upshot of the decision in this case was that the QLR was discharged, but as you will see from above that will not inevitably be so in other cases of dual instruction.

The President said that there should not be a blanket prohibition upon any court-appointed QLR who is also instructed as a solicitor or barrister for the same party in parallel criminal proceedings. Bearing in mind that it is clearly permissible for a party to instruct their criminal defence lawyer to be either their directly appointed QLR or lawyer in the Family court, the court thought that this would be would be disproportionate and unnecessary.

So here, unless the father appoints his own lawyer in the usual way the court will now appoint a different QLR. In a curious postscript, the President records that ‘At the conclusion of the oral hearing, following the decision to discharge his appointment as QLR, Mr Fidler informed the court that, depending on the father’s instructions, he may henceforward go on record as the father’s solicitor in the ongoing Family proceedings’. (Didn’t see that one coming? Me either).

Intermission….That really is all you need if you are just looking for a summary of the case. If you want my ruminations, read on…

Mr Fidler, by the way, is the QLR. I should have introduced him. The QLR to whom the court specifically said no criticism attached (nothing that I say in this post should be interpreted as criticism of Mr Fidler, by the way. It isn’t). But who is recorded as ‘assist[ing] the court by making submissions on behalf of the father.’ In a case where the court has confirmed that ‘The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party.’ Confused? To be sure, it is possible to act pro bono as a full fat legal representative as an adjunct to being a QLR, but in a hearing about roles, boundaries and conflict this is…notable.

It’s not the only confusing thing. The use of ‘QLR’ (as an acronym for qualified legal representative) is a term which, with reference to the QLR provisions (lazy shorthand, all the provisions are in the judgment if you care) has a specific statutory meaning. However ‘qualified legal representative’ also means, as a matter of normal use of words, any qualified legal representative – a solicitor or barrister or ILEX, whether appointed by court or party (or nobody). So really, we ought to distinguish between a qlr (no capitals, just a lawyer), and a QLR (capitals, a specific lawyer with a specific and limited statutory role). Every QLR must also be a qlr, but not every qlr is a QLR. Got it?

And it is not the role of a QLR qlr to make representations on behalf of a party. Was Mr Fidler singing for his own supper, was he acting on behalf of the court, or was he acting as advocate ‘on behalf of’ the father, who had not appointed him? Perhaps he did this pro bono and independently of his (limited) instruction as QLR, since I don’t think he can act in this capacity under his instruction by the court, but it is an ethically complex position, isn’t it? It is a tension inherent in the scheme, and which causes real world problems of not insignificant frequency, and so although I’m sure it was done with the best of intentions, it is somewhat confusing to see those boundaries blurred in a decision which also emphasises the importance of not blurring those boundaries.

Anyway, whilst the court was happy for him to do whatever he was doing at the hearing before the President, pursuant to whatever duty he felt he was discharging, ultimately the court wasn’t happy for him to carry on being an actual QLR in the strict sense of the role as per the MFPA 1984 and the statutory guidance. The decision isn’t based upon a conflict of interests as I read it, though that was argued. It was primarily based upon the complainant’s perception of unfair advantage were the qlr to continue as a QLR, and the potential adverse impact upon her evidence.

But here is what is perplexing me the mostest.

The court was evidently content (rightly) to contemplate Mr Fidler acting for the father in the family proceedings if the father instructed him ‘properly’ as a qlr (party appointed) rather than a QLR (court appointed) – as reaffirmed in the postscript.

If that happens (as it sounds like it might) the father’s legal representative will have exactly the same rights to access and use information across jurisdiction as he would as a qlr (criminal) / QLR (family) hybrid. See FPR 12.73(1) :

1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated

(a) where the communication is to–

(ii) the legal representative of a party;

(iii) a professional legal adviser;

Mr Fidler was entitled to see all the Family Court material whether or not appointed as a qlr (family) or a QLR (family) or neither, because he was appointed by the father as a legal representative / professional legal adviser. He still is.

Mr Fidler was entitled to see all the Criminal material because he was appointed by the father as a legal representative / professional legal adviser. He still is.

The position will be the same for ANY legal representative in the same position.

The complainant / mother was a witness in the criminal proceedings and not a party. Her rights to knowledge of the criminal proceedings are not affected at all by the father/ defendant’s choice of lawyer or the appointment of a QLR.

There is no inequality arising from the fact that the QLR is also the criminal lawyer.

It is true that if the criminal defence is legally aided there will be no funding to read the family papers unless and until the crown make a successful application for disclosure into those proceedings pursuant to their duties of disclosure (assuming that any of the material was relevant). And it is true that the family court information could not be used in those proceedings without permission (because it would amount to a contempt). But nothing did or does stop him knowing about the information in both sets of proceedings as long as he held one appointment as the father’s legal adviser.

In fact, it is not infrequent to have a situation where different departments within one legal aid firm represent the same party across criminal and family jurisdictions and where sharing of information between the two teams is entirely commonplace and permissible? Nobody complains about that.

None of the cast appear to have drawn the court’s attention to FPR 12.73(1)(a)(ii) and (iii). It certainly isn’t mentioned. I think it makes a big hole in the point about ‘material imbalance of disclosure or cross-jurisdictional knowledge’, because there is none. Or none that is at all referable to the QLR appointment.

How can it be right then, that a complainant can say ‘oh this is unfair he can see all that information’ and that can form the basis (part of the basis) for termination of his appointment? When a moment’s advice to that complainant to explain that: actually, it doesn’t make any difference, he’s entitled to see it anyway – would cure any reasonable perception of conflict or unfair advantage?

As for the conflict of interest point. It plainly would not be a conflict of interest for Mr Fidler to act in both family and criminal proceedings if instructed by the father in both and there is no suggestion of a conflict in the usual sense (previously acted for opposing party, for instance). The argument about conflict seems to have been largely based upon the (fallacy about) advantage achieved by knowledge of both sets of proceedings, and partly upon the (important) fact that the appointment is made by the court, that the duty is owed to the court rather than the ‘client’ (not-client), and that this is all wrapped up with ‘independence’. That, I acknowledge, is an ethical complexity, and it is one that is made more complex when there is a concurrent duty to the court AND to the criminal client – but it is an ethical complexity which is inherent in the QLR scheme.

One only has to read the statutory guidance to see the linguistic difficulty of describing the role without reference to terms like ‘client’ and ‘instructions’. The prohibited party is not a client and the QLR isn’t to take instructions, But they do have to speak to them in order to find out what their case is, which is definitely NOT to be confused with taking instructions. Got that? And of course, when it’s convenient the court is – as here – happy to allow the QLR to pretend they are a client instructed qlr. Tales of judges encouraging – or expecting – lawyers to behave exactly as if they were instructed by the not-client (help with negotiations, drafting orders, advice) are rife, notwithstanding the paucity of fee for QLRs. Ethical conflict is not a rarity in this domain.

And of course all lawyers, whether qlr or QLR flavour, are independent. And all owe a duty to the court even if they are instructed by a party. That is why, for instance, a party-appointed lawyer is no more entitled to ask inappropriate questions of a (vulnerable) witness than a QLR and a vulnerable witness is equally well protected on that score.

The President says this about conflict:

Whilst no strict issues of conflict of interest apply as between Mr Fidler and the mother, there are issues, or potential issues relating to the different disclosure regimes as between the family process and the criminal process. In short, Mr Fidler will be party to all of the disclosed material related to the criminal charges, whereas the mother and her lawyers do not have sight of that material, none of which has been disclosed into the Family proceedings [my emphasis]

Here, the conflict is all about having special access to the criminal process. Respectfully, I think this can’t be right, for all the reasons I’ve set out above (plus, if there really was some relevance in the criminal papers then an application for disclosure of them could and should have been made). The President doesn’t really explore conflict in any broader sense.

BUT it is arguable, I think, that a potential conflict of interest arises between such a lawyer’s duty to a criminal client (including duties of confidentiality) and one’s duty to the court in other proceedings (where no such duty is owed). That doesn’t seem to have been addressed, but I think that is what I would be worrying about if I were in Mr Fidler’s shoes. I would be thinking about that upon appointment (and I think I would not agree to appointment, but every lawyer must make their own judgment). If I am right though, it is not at all case specific, and that sort of conflict arises in all cases of dual QLR / qlr instruction because there are two different clients. If the QLR has not identified the conflict and withdrawn, wouldn’t the mere fact of the co-occurrence of the two roles and two sets of potentially competing duties be sufficient in and of itself to strike them out? Yet in this judgment, the court suggests that the discharge of a QLR is fact specific and multifactorial, and specifically discards the idea of a blanket prohibition, which leaves open the possibility of this cropping up again. Or of enthusiastic complainant advocates trying to expand its reach and effect.

It’s easy to say that ‘well, it was just easier to get a fresh QLR’, stop over thinking it – and wave it away (and actually at paragraph 17v) says in terms that another QLR will be found’). But in my experience it isn’t easy to ‘just get a fresh QLR’. They are like hens’ teeth. And all that seems to have happened here is that a father who was getting a free (but constrained) service in that a lawyer would ask questions of the complainant that went to the ‘essence of his case’, is now either going to have to pay for the same lawyer to do the full service job of representing him fully (questions of all witnesses, oral submissions, drafting etc) or he is at risk of being left with no QLR or more delay. That seems…..odd. The President summarises the purpose of the QLR scheme as being ‘to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress’, which must be right. But isn’t it also aiming to ensure a level playing field, fairness in order to ensure an Article 6 compliant trial for all parties (whose culpability has yet to be determined)? I know that it is precisely this consideration that led the court to step away from the idea of a blanket ban, but…

Perhaps, if the father is able to afford to appoint Mr Fidler ‘properly’ all along, we might not have a huge amount of sympathy or concern for him, and probably no harm done. But not everybody will be able to afford to pay for representation. And this isn’t just about this father and this lawyer. I can’t imagine it will happen often, but if in another case the court happens to appoint the same lawyer acting for a legally aided criminal defendant as a family QLR, that litigant might well think that this happy coincidence at least allows a helpful continuity and breadth of understanding. It might be seen as a marginal advantage, and even if it is a happy coincidence, why should it be taken away from this litigant where it couldn’t be from a wealthy or legally aided party?

So, when you really start to think about this decision and what it actually means, it inadvertently reveals the elephantine bigger problem. A QLR is supposed to be an Article 6 fair trial compliant alternative where a prohibited party (unlike the criminal jurisdiction this is usually but not always someone who can’t afford a lawyer) wishes to challenge the evidence of the other party (rather than someone with a gleeful lust for asking horrible questions of their ex for fun – though there are a few of those, too). It is meant to ensure that the needs of both parties (who may both be vulnerable) are met, and so that best evidence is achieved and sound decisions reached. The provision that is made for the prohibited person is not only of a different character than a ‘normal’ lawyer appointment in terms of instruction and scope (instructed by court, questions of prohibited party only, not permitted to ask questions of their choice (or even to request to ask those questions, no speeches, no advice), but it now also appears to be the case that a complainant can raise objection to the identity of a QLR on the basis of distress or perceived bias – even where that perception might be ill founded. Of course, when we are dealing with arrangements for vulnerable witnesses subjective experience and perception are legitimate considerations – but only to a degree. Such an imposition would never be permissible for a qlr appointed by the party, on grounds that (with very limited exceptions) a party has a right to choice of representation. The judgment explicitly acknowledges that. The complainant here won’t be able to say (if he does go on record and appear) that Mr Fidler should be discharged. He will, if appointed ‘properly’ be entitled to ask her questions even if she thinks it is jolly unfair that he knows all about the criminal proceedings. Why should that complaint be permissible just because the other party hasn’t the means to pay for a lawyer themselves?

So I don’t think I really like the idea of a right to object, which is what this judgment effectively creates. I think its burdensome on the complainant, will feel (subjectively if not objectively) very unfair to the prohibited party, and will burn resource. I think it might inadvertently invite further *cough* exploration in other cases. Whereas, if the court as ‘client’ took the conflict point and discharged as soon as the dual instruction was known in all cases (or better still if the rules simply forbade such instruction), such disputes would not need to be dealt with. If the President is right that there are enough QLRs to go around this should not be a problem, and it would avoid delay, stress and wasted resource – without the complainant having the additional stress of applications like these, and without the risk of complainants getting the idea that they can pick and choose who they are asked questions by, or that they can further restrict the other party’s ability to defend themselves by virtue of the fact that they are the subject of a QLR direction (which I think is unhelpful for everyone involved).

Anyway, for me at least, this decision is quite a poignant reminder of the substantive difference between the entitlements of a party with funds as compared to an impecunious accused (the prohibited party is usually the accused). A QLR is not ‘just like having your own lawyer’. A QLR is not ‘your lawyer’ at all (except of course, where they are).