Effect of concession made by counsel

Introduction

Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may be made or done by the party by a counsel, appearing, applying or acting as the case may be, on his behalf[1]. Once a party to litigation authorizes a counsel to represent her in a matter, the counsel gets a right to represent the party in the court and conduct the case.  The authority of the counsel extends to making a submission on behalf of her client as to given state of facts and the position of law. The authority extends to making concessions, including to report to the court that the party has arrived at the settlement in the matter[2].  Concession by the counsel may be in writing or by way of oral submissions. This write-up examines the consequence of such concessions.    

When counsel's concession binds the client

A counsel may make a concession as to the position of law or the facts.

On question of fact, normally the parties are bound by the admissions of their counsel. When Counsel take up the responsibility of making statements of fact to the Court, the Court is entitled to assume that those statements are true, so that it may implicitly rely upon them[3].

If a court records in its judgment records the statements of fact as to what transpired at the hearing before it including the submissions/concessions made by a counsel, the same are conclusive of the facts so stated.  Public policy / judicial decorum precludes the parties from contradicting such statements[4].

Remedy against concession

Conclusiveness of statement recorded in a judgment based on counsel's concession, does not preclude an aggrieved party who feels that the occurrence in the court have been wrongly recorded in the judgment, from recourse.  It is open to such party, while the matter is still fresh in the minds of the judge who heard the matter to invite the attention of the, to the fact that statement made with regard to her conduct was a statement that had been made in error. However, correction of the record of the court will not be permitted in appeal[5]. 

When concession not binding

A concession on a question law is not binding upon the party[6].

While generally, parties are bound by the admissions of their counsel on point of fact, a concession that is contrary to express instruction /direction of the party is not binding. In the words of Privy Council[7]

'.. the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief.”

The statements made by the advocate at bar contrary to the pleading of the parties may not bind the parties. The Supreme Court considering a case of concession made by the counsel as to the facts which were disputed by the party in her written statement before the court, rejected the contention that the statement made by the counsel across the bar was an admission.  It held [8]:

'There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel for the respondent cannot be accepted as an admission so as to bind the respondent.”

An admission by the counsel having the effect surrendering the substantial legal rights of the parties, are also not binding. In the words of Supreme Court:[9]

'A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed.” 

An admission of fact that is not unequivocal and where doubt exists, is not binding.  As held by the Supreme Court:[10]

'Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions.”

A concession on a point involving mixed question of law and fact is also not binding. In this regard Supreme Court has held:[11]

'8. ....... That question is a mixed question of law and fact and we do not think that a concession made by the first respondent on such a question at the stage of argument before the High Court, can preclude him from re-agitating it in the appeal before this Court, when it formed the subject-matter of an issue before the High Court and full and complete evidence in regard to such issue was led by both parties.......”

Recently, the Supreme Court[12] considered the effect of concession stated to have been made by the representative of the employer before Labour Court and held:

'... concessions on mixed questions of fact and law cannot decide cases as the evidence as a whole has to be weighed and inferences drawn therefrom. Even a concession on facts disputed by a respondent in its written statement cannot bind the respondent. Equally, where a question is a mixed question of fact and law, a concession made by a lawyer or his authorised representative at the stage of arguments cannot preclude the party for whom such person appears from re-agitating the point in appeal.”

Conclusion

To avoid the unpleasant situation where a counsel's authority may come under scrutiny, the preferred course for her is to avoid making concessions on behalf of the client, without client's express authorisation.

• [1] Order 3 Rule 1 CPC

• [2] Y. Sleebachen v. State of T.N., (2015) 5 SCC 747, Sudheer Kumar [(2011) 8 SCC 679, Jineshwardas v. Jagrani and (2003) 11 SCC 372

• [3] Raja Prithwi Chand Lall Choudhry v. Rai Bahadur Sukhraj Rai, 1940 SCC OnLine FC; Om Prakash v.Suresh Kumar, 2020 SCC OnLine SC 100; Wali Singh v. Sohan Singh, AIR 1954 SC 263

• [4] Ramdas Shrinivas Nayak (1982) 2 SCC 463

• [5] Ramdas Shrinivas Nayak (1982) 2 SCC 463

• [6] Union of India v. Hira Lal, (1996) 10 SCC 574 

• [7] Sourendra Nath Mitra v. Tarubala Dasi AIR 1930 PC 158

• [8] Swami Krishnanand Govindananadv. Managing Director, Oswal Hosiery (Regd.) (2002) 3 SCC 39

• [9] Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373

• [10] Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373

• [11] C.M Arumugam v. S. Rajgopal' (1976) 1 SCC 863

• [12] Bharat Heavy Electricals Ltd. V. Mahendra Prasad Jakhmola and Others 2019 SCC OnLine SC 382