(2002) 1 A.C. 615
(2002) 1 A.C. 615
A House of Lords
none of the reasons said to justify the immunity, viz the "cab rank" rule, the analogy A
with the immunities of witnesses and others involved in legal proceedings, the duty of
the advocate to the court and the public policy against relitigating a decision of a court
of competent jurisdiction, had sufficient weight to sustain the immunity in relation to
civil proceedings; that the principles of res judicata, issue estoppel and abuse of
process were sufficient to prevent any action being maintained which would be unfair
or bring the administration of justice into disrepute; that the obstacle of proving that a
better standard of advocacy would have produced a different outcome and the ability g
of the court to strike out unsustainable claims under CPR r 24.2. would restrict the
ability of clients to bring unmeritorious and vexatious claims against advocates
should the immunity be removed; and that, accordingly, the public interest in the
administration of justice no longer required that advocates enjoy immunity from suit
for alleged negligence in the conduct of civil proceedings (post pp 678H-679C,
681E-G, 682B-G, 683F-G, 684A-D, 6 8 8 D - E , F - H , 690B-D, 690G-692C, H-693E,
H-694A, E-G, 696G-697A, 698A-F, 699B-C, 703D-F, 704A-C, F-705A, 706G-707B, £
709F-710B, 712.A-B, 713D-E, 714D-715A, 72.4D-725B, 726G-H, 727B-C, 728A-E,
729G-H, 735C-D, 736H-737D, 744A-B, 745C-D, 749H-750A, 752B).
(2) (Lord Hope of Craighead and Lord Hobhouse of Woodborough dissenting)
that, since a collateral challenge in civil proceedings to a criminal conviction was
prima facie an abuse of process and ordinarily such an action would be struck out, an
advocate's immunity from suit was not required to prevent collateral attacks on
criminal decisions (post, pp 679C-E, F-680C, 683F, 684F-685D, 706A-D, 727A-B,
730A-B, 752B).
(3) (Lord Hope of Craighead, Lord Hutton and Lord Hobhouse of
Woodborough dissenting) that none of the other factors said to justify the immunity
had sufficient weight to warrant its retention in relation to criminal proceedings; that,
once a conviction had been set aside there could be no public policy objections to an
action in negligence by a client against his legal representatives at a criminal trial; and
that, accordingly, the public interest no longer required that advocates enjoy
immunity from suit for negligence in the conduct of criminal actions (post, pp 68 3 F, ^
684D-F, 685C-E, 695G-696F, 703D-F, 704A-C, 706E-G, 707B-C, 752B, 753E).
HuntervChiefConstableofthe West MidlandsPolice[i<)8z] AC 5 29,HL(E) applied.
Rondel v Worsley [1969] 1 AC 191, HL(E) not followed.
SaifAli v Sydney Mitchell & Co [1980] AC 198 considered.
(4) Dismissing the appeals, that the clients' claims did not invoke the advocate's
immunity from suit and involved nothing which would be unfair to their solicitors or
liable to bring the administration of justice into disrepute; and that, accordingly, the F
claims would be allowed to proceed (post, pp 684A, 685E, 705B-E, 707D-E, 709B-E,
726G-H, 73 5B, 752A-B, 75 3 El-
Decision of the Court of Appeal, post p 623 Hetseq; [1999] 3 WLR873 affirmed.
Sutcliffe v Thackrah [1974] AC 727; [1974] 2 WLR 295; [1974] 1 All ER 319, HL(E) A
Swain v Hillman [2001] 1 All ER 91; The Times, 4 November 1999, CA
TA Picot (CI) Ltd v Michel [1995] 2 LRC 247
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; [1998] 3 WLR 1040;
[i998]4AHER8oi,HL(E)
Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249
Walpole v Partridge & Wilson [1994] QB 106; [1993] 3 WLR 1093; [1994] 1 All
ER385,CA e
Waring, In re (No z) [1948] Ch 221; [1948] 1 All ER 257
A Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981]
3 WLR 906; [1981] 3 All ER 727, HL(E)
Jenkins v Livesey (formerly Jenkins) [1984] FLR 452, CA; [1985] AC 424; [1985]
2 WLR 47; [1985] 1 All ER106, HL(E)
Keefev Marks (1989) 16NSWLR713
Keegan Alexander Tedcastle & Friedlander v Hurst [1997] DCR 481
Kelley v Corston [1998] QB 686; [1998] 3 WLR 246; [1997] 4 All ER 466, CA
6 Landall v Dennis Faulkner & Alsop [1994] 5 Med LR 268
McFarlane v Wilkinson [1996] 1 Lloyd's Rep 406
Noel v Becker (Practice Note) [1971] 1 WLR 355; [1971] 2 A11ER n 8 6 , C A
North West Water Ltd v Binnie & Partners [1990] 3 All ER 547
Oliver v McKenna & Co (unreported) 30 November 1995, Laddie J
Palmer vDurnford Ford [1992] QB483; [1992] 2 WLR 407; [1992] 2 All ER 122
Peacock v Peacock [1991] 1 FLR 324
c Phosphate Sewage Co Ltd v Molleson (1879) 4 AppCas 8oi,HL(Sc)
Pounds v Pounds [1994] 1 WLR 1535; [1994] 4 All ER 777, CA
Practice Direction (Family Division: Financial Statement) [1984] 1 WLR 674; [1984]
2 All ER 256
Practice Direction (Financial Provision: Consent Order) [1986] 1 WLR 381; [1986]
1 All ER 704
Practice Direction (Financial Provision: Consent Order) (No 2) [1990] 1 WLR 150
ReesvSinclair [1973] 1 NZLR 236; [1974] 1NZLR180
Richards v Witherspoon (unreported) 6 May 1998, Judge Pollard
Rondel v Worsley [1967] 1 QB 443; [1966] 3 WLR 950; [1966] 3 All ER 657, CA;
[1969] 1 AC 191; [1967] 3 WLR 1666; [1967] 3 All ER993, HL(E)
SaifAli v Sydney Mitchell & Co [1978] QB 95; [1977] 3 WLR 421; [1977] 3 All ER
744, CA; [1980] AC 198; [1978] 3 WLR 849; [1978] 3 All ER 1033, HL(E)
Sinanan v Innes Pitassi & Co (unreported) 20 February 1991; Court of Appeal (Civil
Division), Transcript No 125 of 1991, CA
E
Smith v Linskills [1996] 1 WLR 763; [1996] 2 All ER 3 53, CA
Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394; [1989] 1 All ER 129,
CA
TA Picot (CI) Ltd vMichel [1995] 2 LRC 247
Thompson v Howley [1977] 1 NZLR 16
Thwaite v Thwaite [1982] Fam 1; [1981] 3 WLR 96; [1981] 2 All ER 789, CA
Walpole v Partridge & Wilson [1994] QB 106; [1993] 3 WLR 1093; [1994] 1 All ER
F 385, CA
Wright Son & Pepper v Smith (unreported) 10 November 1994, Sir Peter Pain
Yates Property Corpn Pty Ltd v Boland (1997) 145 ALR 169
The following additional cases were cited in argument before the Court of Appeal:
Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd's
G Rep 132, CA
Hatch vLewis (1861) 2 F & F 4 6 7
Hawkins v Harwood (1849) 4 Ex 503
Marsh v Marsh [1993] 1 WLR 744; [1993] 2 All ER 794, CA
Osman v United Kingdom [1999] 1 FLR 193
Practice Direction (Decrees and Orders: Agreed Terms) [1972] 1 WLR 1313: [1972]
3 All ER 704
H Stanton v Callaghan [2000] 1 QB 75; [1999] 2 WLR 745; [1998] 4 All ER 961, CA
Sutton v Sutton [1984] Ch 184; [1984] 2 WLR 146; [1984] 1 All ER 168
Swinfen v Lord Chelmsford (i860) 5 H & N 890
T v T (Consent Order: Procedure to Set Aside) [1996] 2 FLR 640
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; [1998] 3 WLR 1040;
[i998] 4 AllER8oi,HL(E)
620
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
Tommey v Tommey [1983] Fam 15; [1981] 3 WLR909; [1982] 3 All ER 385 A
X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] 3 WLR 152;
[i995]3AHER 3 53,HL(E)
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293, CA
The following additional cases, although not cited in argument, were referred to in
the skeleton arguments before the Court of Appeal:
A & M Records Inc v Darakdjian [1975] 1 WLR 1610; [1975] 3 All ER 983 S
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602; [1995] 4 All
ER907,CA
American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 2 WLR 316; [1975]
iAHER 5 04,HL(E)
Attorney General v Prince and Gardner [1998] 1 NZLR 262
BvB (Consent Order: Variation) [1995] 1 FLR9, CA
BarrettvBarrett [1988] 2FLR 516, CA c
Benson v Benson (Deceased) [1996] 1 FLR 692
CvC (FinancialProvision: Non-Disclosure) [1994] 2 FLR 272
Davy-Chiesman v Davy-Cbiesman [1984] Fam 48; [1984] 2 WLR 291; [1984] 1 All
ER32i,CA
Duxbury v Duxbury (Note) [1992] Fam 62; [1991] 3 WLR 639; [1990] 2 All ER 77,
CA
Edgar v Edgar [1980] 1 WLR 1410; [1980] 3 All ER 887, CA D
Ezekiel v Orakpo [1997] 1 WLR 340, CA
Fergusson v Lewis (1879) 14 LJ 7 ° °
Fletcher & Son vjubb, Booth & Helliwell [1920] 1 KB 275, CA
Fray v Voules (1859) 1 E 8c E 839
G (A Minor) (Care Proceedings), In re [1994] 2 FLR 69
Godefroy v Dalton (1830) 6 Bing 460
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 3 WLR 101;
E
[i96 3 ]2AllER57 5 ,HL(E)
Hope-Smith v Hope-Smith [1989] 2 FLR 56, CA
Hyman v Hyman [1929] AC 601, HL(E)
Kitchen v Royal Air Force Association [1958] 1 WLR 563; [1958] 2 AllER24i,CA
Locke v Camberwell Health Authority [1991] 2 MedLR 249, CA
Lowsley v Forbes (trading as LE Design Services) [1999] 1 AC 329; [1998] 3 WLR
501; [1998] 3 All ER 897, HL(E)
MvM (Financial Provision) [1987] 2 FLR 1 ^
NvC (Property Adjustment Order: Surveyor's Negligence) [1998] 1 FLR 63, CA
Naylor v Preston Area Health Authority [1987] 1 WLR 958; [1987] 2 All ER 353,
CA
Practice Direction (Family Proceedings: Financial Dispute Resolution) [1997]
1 WLR 1069; [1997] 3 All ER 768
Practice Statement (Commercial Cases: Alternative Dispute Resolution) [1994]
1 WLR 14; [1994] 1 All ER 34 C
Robinson v Robinson (Practice Note) [1982] 1 WLR 786; [1982] 2 All ER 699, CA
TibbsvDick [1998] 2FLR 1118,CA
APPEALS
Immunity
2 Our primary sources on lawyers' immunity are two relatively recent
decisions of the House of Lords in Rondel v Worsley [1969] 1 AC 191 and
Saif Alt v Sydney Mitchell & Co [1980] AC 198. These cases clearly
establish four propositions.
(1) A lawyer acting as an advocate is immune from any claim for damages
for negligence by a client arising out of almost anything done or omitted in
the course of conducting a case in court. For convenience we refer to this as
"forensic immunity".
(2) The rationale of forensic immunity is recognised to be public policy D
principally (a) to prevent the relitigation, otherwise than on appeal, of issues
already concluded adversely to the plaintiff by court decision; (b) as part of
the general immunity from civil liability which attaches to all persons who
participate in proceedings before a court of justice; and (c) because an
advocate owes a duty to the court as well as to his client and should not be
inhibited, through apprehension of an action by his client, from performing f
his duty fearlessly and independently.
(3) Since forensic immunity derogates from the fundamental principle
that a professional person is answerable to a client for any loss caused to the
client by any want of the skill and care ordinarily to be expected from such a
professional person, the scope of the immunity should be restricted to cases
in which public policy grounds call for its recognition.
(4) While forensic immunity extends beyond the limits expressed in F
(1) above, it applies only "where the particular work is so intimately
connected with the conduct of the cause in court that it can fairly be said to
be a preliminary decision affecting the way that cause is to be conducted
when it comes to a hearing. The protection should not be given any wider
application than is absolutely necessary in the interests of the administration
of justice." Q
3 Proposition (1) is the ratio of Rondel v Worsley [1969] 1 AC 191, in
which case counsel was only instructed by the plaintiff to conduct his
defence at his criminal trial after the hearing had begun, and the plaintiff's
allegations of negligence related directly to the manner in which counsel
had, in court, conducted the defence. That forensic immunity should extend
to advocates whether they were solicitors or barristers was held in Rondel v
Worsley, at pp 2.32, 267, 284 and 294, and in the Saif Ali case [1980] AC
198, 215, 223, 224 and 227. It is now plain, from section 62 of the Courts
and Legal Services Act 1990, that any person other than a barrister, lawfully
doing work in respect of which a barrister lawfully doing the same work
would be immune, enjoys the same immunity.
625
[2002] 1 AC ArthurJ S Hall & Co v Simons (CA)
A 4 Proposition (2) is derived from the speeches of the majority in the Saif
Ali case, particularly at pp 212, 222, 227 and 230, where the public policy
considerations relied on in Rondel v Worsley were discussed and refined.
5 Proposition (3) is based on Rondel v Worsley [1969] 1 AC 191, 227,
244, 247, 253-254, 284 and 289, and on the speeches of the majority in the
SaifAlicase [1980] AC 198, 213, 214, 215, 218, 219, 224 and 230.
6 Proposition (4) is based on the speeches in the Saif Ali case, at pp 215,
224, 231 and 232, where the majority expressly adopted a passage in the
judgment of McCarthy P in the New Zealand Court of Appeal in Rees v
Sinclair [1974] 1 NZLR 180, 187, which included the words quoted. In
Rees v Sinclair, as is evident from the report [1973] 1 NZLR 236, the
defendant was a solicitor and barrister who had acted for the plaintiff in
matrimonial proceedings and had refused to plead or advance allegations
C against the plaintiff's wife for which he considered there to be no
justification.
7 It may of course be that the House of Lords will hereafter choose to
review and modify the rulings given in these two leading cases, and it is
noteworthy that in the Saif Ali case [1980] AC 198 Lord Diplock, at p 223,
expressed regret that counsel for the plaintiff had not made a more radical
challenge to the authority of Rondel v Worsley [1969] 1 AC 191. We
understand further that the European Court of Human Rights may be called
upon to consider the compatibility of the decision in Rondel v Worsley with
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) (Cmd 8969). But we must treat these cases
as binding authority for the four propositions we have set out. Those
propositions do not, however, answer the first question posed above, which
£ relates to the outer limits of forensic immunity, beyond the core immunity
which protects an advocate against claims arising from the conduct of a
cause in court. More particularly, the issue arises (in all four appeals)
whether forensic immunity, on a fair application of McCarthy P's rule
adopted by the House of Lords, affords immunity to a lawyer who advises
that a case be compromised, where the advice is accepted and the case is
settled. Is the advice to settle "so intimately connected with the conduct of
the cause in court that it can fairly be said to be a preliminary decision
affecting the way that cause is to be conducted when it comes to a hearing"?
Or can it depend on the facts of a given case whether advice to settle is so
intimately connected or not? And does it matter when and where the advice
is given? Does it matter whether the lawyer is acting as an advocate or in the
role which solicitors have traditionally filled when instructing counsel?
C 8 In Rondel v Worsley certain of their Lordships gave examples of
activity which might, or might not, be covered by forensic immunity and, as
Lord Wilberforce pointed out in the Saif Ali case [1980] AC 198, 213-214,
there was some diversity in those opinions which the House in the Saif Ali
case was concerned to narrow.
9 In the Saif Ali case the negligence alleged was failure to join (or advise
the joinder of) the correct defendant to a running down claim before the
expiry of the limitation period, and the issue of immunity arose on a third
party claim by the defendant solicitors against counsel. In the Court of
Appeal Bridge LJ, applying the Rees v Sinclair test, thought the test should be
construed narrowly but was still quite satisfied that the barrister was entitled
to the benefit of forensic immunity: see [1978] QB95. In the House of Lords
626
Arthur J S Hall & Co v Simons (CA) [2002] 1 AC
negligence for what he did in court during the trial of a criminal case and, A
having done so, to decide whether they suffice to justify a like immunity
when advising a client, through his solicitor, as to who should be made a
party to a proposed civil action and when settling pleadings in the action
in conformity with that advice."
Thus, when any advocate claims to be immune in respect of any specific
thing which he has done or omitted to do, it is necessary to test that claim by B
reference to that specific act or omission and to examine the public policy
grounds which may be relied on to support the recognition of immunity in
that instance.
13 Both Lord Wilberforce and Lord Diplock recognised that the
undesirability of relitigating the same issue was a public policy ground of
much reduced weight where the case in question had never come to trial.
Lord Wilberforce said, atpp 214-215:
"Furthermore, if the principle is invoked that it is against public policy
to allow issues previously tried (between the client and his adversary) to
be relitigated between client and barrister, it may be relevant to ask why
this principle should extend to a case in which by the barrister's (assumed)
fault, the case never came to trial at all. These two considerations show
that the area of immunity must be cautiously defined."
Lord Diplock said, at p 223:
"My Lords, it seems to me that to require a court of co-ordinate
jurisdiction to try the question whether another court reached a wrong
decision and, if so, to inquire into the causes of its doing so, is calculated
to bring the administration of justice into disrepute. Parliament indeed E
itself stepped in to prevent a similar abuse of the system of justice by
convicted criminals in bringing civil actions for libel against those who
described them as having been guilty of the crimes of which they had been
convicted: see Civil Evidence Act 1968, section 13. A consequence of the
decision of this House in Rondel v Worsley [1969] 1 AC 191 was to
prevent its happening in actions for negligence against barristers.
A similar objection, it may be mentioned, would not apply in cases where
an action has been dismissed or judgment entered without a contested
hearing, and there is no possibility of restoring the action and proceeding
to a trial. If the dismissal or the entry of judgment was a consequence of
the negligence of the legal advisers of a party to the action, a claim in
negligence against the legal advisers at fault does not involve any
allegation that the order of the court which dismissed the action or C
entered judgment was wrong."
14 The minority in the House understood the decision of the majority to
exclude advice on settlement from the scope of forensic immunity. Lord
Russell of Killowen said, atp 234:
"I can find no justifiable line to be drawn at the door of the court, so
that a claim in negligence will lie against a barrister for what he does or
omits negligently short of the threshold though not if his negligent
omission or commission is over the threshold. His immunity from claims
of negligence should (granted that it is to exist at all) extend to areas
which affect or may affect the course of conduct of litigation, in which
629
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A areas are to be found the public duty and obligation of the barrister to
participate in the administration of justice. And this should be so even if
the result of the alleged negligence is that litigation does not in fact come
about. A decision which shapes, or may shape, the course of a trial should
be within the umbrella (or blanket) of freedom from claims whether
it is arrived at before trial or during it. This must include advice on
e settlement: advice on evidence: advice on parties: to list only examples.
A barrister is offered an opportunity in the course of a trial to add a party:
he misunderstands the case and allegedly negligently declines the
opportunity: as I understand Rondel v Worsley [1969] 1 AC 191 he is
immune from the claim. Is there any reason for not holding him also
immune from a claim for not originally adding that party? I think not."
C Lord Keith of Kinkel was of the same mind, at p 23 5:
"A barrister's duty to the court and the due administration of justice
has to be kept firmly in view when he directs his mind to whether an
action should be brought and against what parties, to whether an action
should be settled or abandoned and to advising on evidence and on the
discovery of documents. It is true that decisions on such matters normally
D are taken in situations offering more opportunity for reflection than is
present in face of the court in the course of a trial. But that might well
mean that the decision is less instinctively correct in the light of the
barrister's duty to the court and more likely to be influenced by thoughts
of the action which the client, in the absence of an immunity, might take.
I am therefore of opinion that the grounds of this aspect of public interest
£ extend beyond the actual conduct of a case in court and are applicable to
all stages of a barrister's work in connection with litigation, whether
pending or only in contemplation."
But this was a minority view, and the majority's disagreement with it gave
rise to Lord Keith's dissent. As he observed, at p 23 7:
"The suggested restriction of the immunity would presumably exclude
from its scope all cases relating to contemplated litigation which did not
actually reach the stage of a hearing in court, and all litigation settled,
compromised or abandoned. In other cases the suggested restriction
would, in my opinion, prove difficult to apply in practice and would
almost inevitably require inquiry into the facts. It would seldom, if
ever, be possible to decide the issue of immunity upon an application
C for striking out. So the objective of relieving the barrister of any
apprehension of contentious litigation regarding the conduct of his cases
would not be achieved."
He concluded that the negligence alleged against the barrister took place "in
connection with his conduct of litigation" and that accordingly the barrister
was immune from suit.
15 There is nothing in these cases to suggest that anyone is immune in
relation to anything done (or omitted) out of court if he would not have been
immune in relation to the same thing done (or omitted) in court. These
authorities furthermore stress that the immunity is an advocate's immunity.
Thus a solicitor or any other qualified advocate may be immune.
630
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
of approval is not a formality: see RSC Ord 15, r 13(4) and The Supreme A
Court Practice 1999, vol 1, p 261, para 15/13/10.
22 In the case of trustees and executors, an order of the court may be
sought approving a sale, purchase, compromise or other transaction: see
RSC Ord 85, r 2(3)(d). Under the Insolvency Act 1986 an administrator
(section 14(3)) or a receiver or manager (section 35) or the trustee of a
bankrupt's estate (section 303) may apply to the court for directions, and a
liquidator may invite the court to determine a question or exercise certain
powers; such applications may be made primarily for the protection of the
applicant; in many such cases there will be no full contested hearing, but the
court will make an order on the material laid before it. The same is true
where the court is asked to appoint a receiver proposed by a creditor in
reliance on an affidavit of fitness: Halsbury's Laws of England, 4th ed
reissue, vol 7(2) (1996), p 1004, para 1349. C
It is unnecessary to multiply examples. But there is one form of consent
order, in relation to ancillary relief in matrimonial proceedings, which is
particularly germane to three of the appeals before us.
court order no longer depend upon the agreement of the parties as the A
source from which their legal effect is derived. Their legal effect is derived
from the court order:" see de Lasala v de Lasala [1980] AC 546, 560;
Thwaite v Thwaite [1982] Fam 1, 7; Jenkins v Livesey [1985] AC 424,
435-
A party who has consented to an order is not precluded from seeking to
s
challenge or set aside the order where fraud or misrepresentation or non-
disclosure or a fundamental change of circumstances has occurred: see
Barder v Barder [1988] AC 20; Harris (formerly Manahan) v Manahan
[1996] 4 All ER 454. But substantial grounds for a challenge must be
shown. Hence the salutary warning given by Lord Oliver of Aylmerton in
Dinch v Dinch [1987] 1 WLR252, 255:
" . . . I feel impelled once again to stress in the most emphatic terms
that it is in all cases the imperative professional duty of those invested
with the task of advising parties to these unfortunate disputes to consider
with due care the impact which any terms that they agree on behalf of
their clients have and are intended to have upon any outstanding
application for ancillary relief and to ensure that such appropriate
provision is inserted in any consent order made as will leave no room for D
any future doubt or misunderstanding or saddle the parties with the
wasteful burden of wholly unnecessary costs. It is, of course, also the
duty of any court called upon to make such a consent order to consider
for itself, before the order is drawn up and entered, the jurisdiction which
it is being called upon to exercise and to make clear what claims for
ancillary relief are being finally disposed of. I would, however, like to £
emphasise that the primary duty in this regard must lie upon those
concerned with the negotiation and drafting of the terms of the order and
that any failure to fulfil such duty occurring hereafter cannot be excused
simply by reference to some inadvertent lack of vigilance on the part of
the court or its officers in passing the order in a form which the parties
have approved."
28 Different judges have, unsurprisingly, described the function of the
court in making a consent order under section 25 where the parties have
agreed terms in somewhat different ways. Bush J was, in our view, right to
describe the proper approach of the court in such circumstances as a broad
rather than a particular one (see Dean v Dean [1978] Fam 161,172), and we
agree with Waite LJ in Bounds v Bounds [1994] 1 WLR 1535,1540 that it is r
only if a broad appraisal of the parties' financial circumstances as disclosed
to it in summary form puts the court on inquiry that the court should probe
more deeply. It is doubtless true, as Ward LJ pointed out in Harris (formerly
Manahan) v Manahan [1996] 4 All ER 454, 462 that judges rely on
practitioners' help. It nonetheless remains true that
"The court has an overriding duty to survey the sufficiency of the H
proposed consideration and the overall fairness of the orders proposed:"
Beacock v Beacock [1991] 1 FLR 324, 3 28, per Thorpe J.
The same point was clearly made in Bounds v Bounds [1994] 1 WLR 1535,
1537-153 8 by Waite LJ and by all three members of the Court of Appeal in
635
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A Kelley v Corston [1998] QB 686, per Judge LJ, at p 690, per Pill LJ, at p 710,
and per Butler-Sloss LJ, at p 714.
The hopeful prognosis upon which the settlement was based was not in the -4
event borne out, and the plaintiff claimed damages against the three
defendants for negligence. All claimed to be immune from suit. The
consultant's claim was upheld, it would seem under the general privilege
protecting those who give, or prepare to give, evidence in court, and also on
application of the Rees v Sinclair test. Counsel's claim was upheld by
analogy with the ruling in Biggar v McLeod [1978] 2 NZLR 9. The judge e
held [1994] 5 MedLR 268, 275, that any act or omission on the part of
counsel between delivery of his brief at the end of November 1986 and the
hearing in the middle of February 1987 was so intimately connected with
the February hearing as to be subject to immunity. The claim against the
solicitors was struck out as vexatious and an abuse of process, because no
distinction was to be drawn between their position and that of counsel and
to allow the matter to proceed against them would result in a blatant
outflanking of counsel's immunity.
(5) The plaintiff in Bateman v Owen White [1996] PNLR 1 had been
convicted at first instance but eventually acquitted on appeal. He sued the
solicitors and counsel who had represented him at his trial, complaining that
they had failed to object to inadmissible evidence. On application of the
solicitors, counsel taking no active part, the judge struck out the plaintiff's D
claim on the ground that the solicitors were immune from suit in relation to
the matters of which complaint was made. Leave to appeal against this
decision was refused: it was held that "the substance of the matter, given the
special nature of the objection to admissibility which was available in
the present case, is the failure to raise that objection at the trial rather than
the previous negligence which is also alleged". Accordingly, the complaint £
was held to relate to the conduct of the trial. No reference was made to any
distinction between solicitors and barristers: see pp 6 to 7. The decision
bears a close resemblance to that in Giannarelli v Wraith, 62 ALJR 611.
(6) The plaintiff in McFarlane v Wilkinson [1996] 1 Lloyd's Rep 406 had
sued defendants in common law negligence. A preliminary issue was tried
whether the defendants in that action owed him a duty of care. At first
instance the judge held that they did. The Court of Appeal reversed that
decision. Having lost that action, the plaintiff sued leading and junior
counsel who had represented him in that case complaining that they had
been negligent in failing to include in his action a claim for breach of
statutory duty. This complaint related only to the period between the
successful outcome at first instance and the unsuccessful outcome on appeal.
It was held that this complaint fell squarely within the scope of forensic C
immunity as defined by the House of Lords in SaifAli [1980] AC 198.
(7) The defendant in Keegan Alexander Tedcastle & Friedlander v Hurst
[1997] DCR 481 complained that earlier proceedings had been unsuccessful
as a result of inadequate research conducted by her advocate. The advocate
claimed immunity, and the claim was upheld. The judge held, at p 484:
"In my view the preparation of the case for the High Court and, in "
particular, the legal research incidental thereto was work undertaken by
Mr Vickerman as a barrister. It was work which was so intimately
connected with the conduct of the litigation that it comes within the scope
of the protection."
637
[2002] 1 AC ArthurJ S Hall & Co v Simons (CA)
A (8) In Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169
the plaintiff made complaints against a firm of solicitors and against counsel
whom he had retained in earlier proceedings. In the course of a long
judgment, all his complaints of negligence were dismissed. There was also,
however, a claim for forensic immunity advanced on behalf of counsel: the
judge found, at p 22.1, that all of the allegations of negligence made against
them, realistically analysed, related either to work done in court or to work
done out of court which led to decisions affecting the conduct of the earlier
proceedings. He accordingly found that they were entitled to immunity.
(9) Kelley v Corston [1998] QB 686 is a recent decision of the Court of
Appeal to which much attention was devoted in argument. The defendant, a
barrister, had been instructed to represent the plaintiff at a hearing of the
plaintiff's claim for financial relief. A conference between the plaintiff and
C counsel took place on the day before the hearing. On the day of the hearing
both parties, and their representatives, attended at court and a compromise
agreement was reached, embodied in a consent order by the deputy district
judge. Thereafter the plaintiff issued proceedings against the barrister
claiming damages for negligence in "negotiating and advising the plaintiff to
accept a settlement of her claim for ancillary relief against her husband".
The critical allegation made by the plaintiff, as understood by the Court of
Appeal, at p 690, was that the overall effect of the settlement had left the
plaintiff unable to finance the repayments of the mortgage on the former
matrimonial home after it had been transferred into her name. The barrister
applied to strike out the claim on the basis that she was protected by forensic
immunity. All three members of the Court of Appeal upheld the barrister's
claim to forensic immunity, but on different grounds.
E Judge LJ, giving the first judgment, did not conclude that the barrister's
conduct in settling the litigation was covered by immunity. He said, at p 701:
"In my judgment the settlement of litigation is not normally
encompassed within the principles on which the immunity of the
advocate is based. None of the relevant authorities requires and there are
no public policy considerations which justify a blanket immunity from
F suit for negligent advice to a client which results in a settlement of his
claim, whether the advice is given by counsel or a solicitor (whether
advocate or not) and whether the settlement is reached before the hearing
or at the door of the court."
To this general statement he acknowledged two exceptions: the first where a
case was compromised after the trial had begun; and the second where a
C settlement was subject to or required the approval of the court. In his
judgment the barrister was entitled to claim immunity in that case because
the settlement had required and received the approval of the court.
Pill LJ was of opinion, at p 710, that because the court had by giving its
approval assumed responsibility for the merits of the consent order the
advocate was immune from suit for his role in advising that the settlement be
made. However, Pill LJ was unwilling to decide the appeal on that basis,
since this ground had never been pleaded or argued or relied on before the
judge. He therefore went on to consider whether the advocate was immune
on application of the Rees v Sinclair test, and concluded, at p 711, that she
was on the basis that no sensible distinction could be drawn between a
settlement made in the course of trial and one made at the door of the court
638
Arthur J S Hall & Co v Simons (CA) [2002] 1 AC
before the trial began. He held, at p 712, that a settlement made at the door A
of the court in civil proceedings had a more intimate connection with a
hearing about to begin than a plea of guilty in a criminal case.
Butler-Sloss LJ agreed with Pill LJ's conclusion. She held, at p 715, that a
consent order made and approved under the 1973 Act had such an intimate
connection with the conduct of the cause in court that it came within the
Rees v Sinclair test. She also, however, as it would seem, hesitated to decide
the appeal on this unpleaded ground, and so she too went on to consider
whether forensic immunity extended to cover settlements made at the door
of the court, although she thought her opinion on that matter might be
strictly obiter. She concluded, at p 718, that there was no real distinction
between coming to an agreement while waiting to start a case and making it
after the case had begun. She said, at p 719:
"For my part, I do not believe it is in the interests of the administration
of justice that any distinction should be drawn between the point at which
the advocates attend court and thereafter for immunity against suit to
apply. It would also be a clear workable rule which was easy to apply."
(10) The second defendant in Atwell v Michael Perry & Co [1998] 4 All
ER 65 was a barrister. He had acted for the plaintiff in county court
proceedings brought against him by neighbours in a boundary dispute. In
the proceedings the plaintiff had lost, and the second defendant had advised
that there was no reasonable prospect of a successful appeal. The plaintiff
had then sought advice from a different member of the Bar who had advised
that the plaintiff had a very good prospect of success on appeal, and this
advice was vindicated when the plaintiff did indeed succeed in the Court of
Appeal. The plaintiff then claimed damages for negligence against the £
solicitors whom he had first instructed, as first defendants, and against the
second defendant. His complaints of negligence, summarised, at p 72,
alleged legal errors and oversights in the second defendant's assessment of
the case and he also complained of the inaccurate advice that there were no
grounds of appeal.
Sir Richard Scott V-C held, at p 79, that all the plaintiff's complaints
related to decisions of counsel as to how he proposed to conduct the case,
and as such were covered by forensic immunity; but, at p 80, he concluded
that the second defendant's advice on the prospect of successfully appealing
against the adverse decision was not similarly protected. Sir Richard
Scott V-C concluded, however, that even that allegation did not raise a
sustainable claim for damages in negligence: see pp 80-81. We understand
that this decision is currently subject to appeal. C
30 There have also been a series of cases in which forensic immunity,
although claimed, has been denied:
(1) In Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394 a
defendant who had pleaded guilty and been sentenced at a trial thereafter
sued the solicitors who had acted for him at the criminal trial complaining
that they had wrongly pressurised him into pleading guilty. It was argued for
the solicitors that since counsel, if sued, would have been protected by
forensic immunity from any claim based on his advice to plead guilty, the
solicitors were entitled to a similar immunity. This claim the Court of
Appeal rejected, holding, at p 1403, that forensic immunity only extended to
those, whether barristers or solicitors, who were acting as advocates when
639
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A doing the work giving rise to the complaint. The plaintiff's claim was,
however, dismissed on other grounds (see post, p 897H below).
(2) In Donellan v Watson (1990) 21 NSWLR 335, forensic immunity was
denied to a solicitor who consented to a compromise of an appeal on terms
quite different from those he had agreed with his client. A somewhat similar
decision had earlier been reached in New Zealand, without reference to
forensic immunity, in Thompson v Howley [1977] 1 NZLR 16. These cases
show that immunity does not necessarily attach to things done in court.
(3) The plaintiff in Acton v Graham Pearce & Co [1997] 3 All ER 909
had been convicted on criminal charges but the convictions had been
quashed by the Court of Appeal following the reception of new evidence.
He complained in these proceedings that the defendant solicitors, who had
acted for him at the trial, had conducted his defence negligently with the
C result that he had been wrongly convicted. In these proceedings he
complained that the solicitors had failed to take steps which reasonably
competent solicitors would have taken, and the judge, at p 923, was
satisfied that this complaint was made out. The judge, at p 924, could not
accept that the solicitors' failures could be said to be in the nature of
preliminary decisions affecting the way that the plaintiff's defence was to be
D conducted when the proceedings came to trial, and was accordingly
satisfied that the failures were not within the scope of the forensic
immunity established by Rees v Sinclair. The judge also held that there was
no public policy objection to the plaintiff's claim since far from challenging
the final subsisting decision of a court his claim was entirely consistent with
his acquittal on appeal.
(4) In Keegan Alexander Tedcastle & Friedlander v Hurst [1997] DCR
E
481 it was held that a solicitor was not protected by immunity against claims
based on his failure to give full and reasoned written advice on the risks of
the litigation on which the defendant was embarking and its likely cost: see
P486.
(5) The plaintiff in Griffin v Kingsmill [1998] PIQR P24 was a minor who
suffered very serious injuries in a road traffic accident. She sought damages
p from the driver of the car which had knocked her down, and her claim was
settled and approved by the court under RSC Ord 80, r 11 before
proceedings were begun. Under the settlement she received a sum very far
below the value of the claim on a basis of full liability, and she thereafter
sued as the first two defendants the solicitors who had previously
represented her, and as the third defendant her counsel. All three defendants
applied to strike out the plaintiff's claim against them on the ground that
they were immune from suit in relation to the compromise of the plaintiff's
claim. The deputy district judge refused to strike out, and his decision was
affirmed on appeal by Timothy Walker J. He held, at pp 29-30:
"(1) Striking out these claims would, in my judgment, involve not just
an application, but an extension of the obiter reasoning of the Court of
Appeal [in Kelley v Corston [1998] QB 686]. It necessarily involves the
proposition that no matter how remote in time and space the advice to
settle is from the court house door and the eventual court order, the
advice to settle is immune just because of the court order. I am far from
satisfied that such a result could have been intended. (2) Indeed, from the
language of the judgments of the Court of A p p e a l . . . it seems to me more
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ArthurJS Hall & Co v Simons (CA) [2002] 1 AC
than arguable (which is all that matters for present purposes) that they did A
intend to confine the court order point to the specific facts before them.
Such facts do not (obviously) exist here. (3) The extension of the principle
in the manner indicated would lead to wholly random results. It would
mean that the advice would be immune, depending upon the age of the
client. Indeed, advice given to a 17 year old whose settlement was
activated swiftly would be immune. Advice given to a 17 year old, the
implementation of which was delayed beyond the next birthday, would
not be immune. (4) Further, if the immunity arises solely from the court
order (because essentially it is against public policy to inquire into
whether the court discharged its duty to see that the settlement was a fair
one) then, logically, I cannot see any reason why the immunity should not
apply equally to the solicitors. It is plain beyond argument that the first
defendant performed no advocacy function of any kind here, yet she C
would still be immune. For example, if a solicitor negligently failed to
enclose a vital recent medical report when sending counsel instructions to
advise on an infant's settlement, as a result of which the case was seriously
under-valued, the solicitors, who had committed an elementary error
which had nothing to do with the actual conduct of the case in court,
would be immune." _
A sentence imposed on the plaintiff by the Crown Court and upheld in the
Court of Appeal. In Oliver v McKenna & Co (unreported) 30 November
1995, Laddie J held that a claim in negligence against solicitors, on the
ground that they had negligently put forward and supported an unsuitable
candidate for appointment as a receiver, was an abusive challenge to a
judicial decision that the individual in question was a fit and proper person
fi to be appointed. In Smith v Linskills [1996] 1 WLR 763 the Court of Appeal
upheld the decision of a judge striking out a claim by a convicted criminal
defendant against the solicitors who had represented him at his trial, holding
that the action amounted to a collateral challenge to the conviction and was
not justified under the fresh evidence rule laid down in the Phosphate
Sewage case, 4 AppCas 801. In Griffin v Kingsmill (No z), 20 February
1998 the court held on a preliminary issue that the proceedings did involve a
c
collateral challenge to the court's decision approving the infant settlement.
Other unreported cases in which objections under this head have been
upheld include Sinanan v Innes Pitassi & Co (unreported) 20 February 1991;
Court of Appeal (Civil Division), Transcript No 125 of 1991, in which a
claim in negligence was made against solicitors arising from their conduct of
a defence to RSC Ord 14 proceedings; Wright Son & Pepper v Smith
D (unreported), 10 November 1994; Richards v Witherspoon (unreported)
6 May 1998 and Flashmanv BondPearce (unreported), 17 July 1998.
33 In B v Miller & Co [1996] 2 FLR 23 the judge refused to strike out a
claim for negligence against solicitors based on a consent order made in
ancillary relief proceedings on the ground that such proceedings were not
to be equated with a final order made at the conclusion of contested
proceedings, but this decision was disapproved by all three members of the
Court of Appeal in Kelley v Corston [1998] QB 686. In Griffin v Kingsmill
[1998] PIQR P24, on the strike-out application, Timothy Walker J reached a
similar conclusion, pointing out, at p 31, that the master who had approved
the infant settlement had not been a court of trial, had not given a judgment
on the merits of the case and had not given a judgment on any contested
issue. The judge observed that if the collateral attack point were a good one
F it would have been an equally good one in Kelley v Corston; but it is plain
from the report of that case that the Hunter argument was not relied on
before the Court of Appeal.
34 In Palmer v Durnford Ford [1992] QB 483 haulage contractors, in
reliance on the expert advice of an engineer, issued proceedings against the
vendor and the repairer of a lorry. Shortly before trial the expert advised
Q that he would have difficulty supporting the claim against the vendor. At the
trial evidence was heard, but before the trial was completed the haulage
contractors abandoned their claims and by consent judgment was given for
both defendants with costs. The contractors then sued the solicitors and the
expert who had acted for them at this trial. On the application of the expert,
a district judge struck out the claim against him, holding that he was
protected by the immunity of those participating in court proceedings. The
contractors appealed. At the hearing of the appeal (by Mr Simon Tuckey,
sitting a deputy judge of the High Court) the solicitors applied to strike out
the claim against them as an abuse of the process of the court, relying on the
judgment entered by consent. The expert also relied on that ground on
appeal.
1 AC z o o 2—2.4
642
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
The deputy judge allowed the contractors' appeal against the expert. A
Applying a test analogous to that in Rees v Sinclair [1974] 1 NZLR 180, he
concluded that while the expert might be immune in relation to his evidence
in court and the preparation of it, he might well not be immune in relation to
his initial advice and his willingness to advise as an expert. The deputy judge
did not find it possible, on the pleadings, to rule where immunity began and
ended and so reinstated the claim. On the solicitors' summons, however, the
deputy judge struck out those paragraphs of the contractors' pleading
which, in his judgment, impugned the earlier consent judgment. He rejected
the argument that this had not been a final decision because the court had
not itself pronounced on the merits of the claims, holding that a final
decision for the relevant purpose was one which would give rise to a plea of
res judicata, leaving nothing to be judicially determined or ascertained
thereafter. C
35 The decision in Palmer v Durnford Ford [1992] QB 483 was
considered by the Court of Appeal in Walpole v Partridge & Wilson [1994]
QB 106. The plaintiff in that case had been convicted by magistrates and on
appeal by the Crown Court. He had then consulted the defendant solicitors
for the first time on the prospects of a further appeal, but complained in this
action that the solicitors, despite favourable advice by counsel, had failed to
pursue an appeal by way of case stated. It was accepted that he had a point
arguable on appeal. On the application of the solicitors, a judge struck out
the plaintiff's claim against the solicitors as an abuse, holding that it made a
collateral attack on the subsisting decision of the Crown Court. The Court
of Appeal took a different view, pointing out that the rule in Hunter [1982]
AC 529 was not absolute and holding for a number of reasons that the action
against the solicitors was not necessarily to be regarded as abusive. But the E
court questioned whether Mr Tuckey had been right to strike out the claim
against the solicitors in the Palmer case. Ralph Gibson LJ, giving a judgment
in which the other members of the court concurred, (1) agreed that as
between the contractors and the repairers the consent judgment had been
final as giving rise to a plea of res judicata; but (2) was not satisfied that that
had been a decision against the contractors which they had had a full
opportunity of contesting within the principle stated by Lord Diplock in the
Hunter case; and (3) held that the Hunter principle did not prevent a plaintiff
attacking a prior decision if he had sufficient fresh evidence; and (4) held, at
pp 124-125:
"If there is a sufficiently arguable case to show that the defendant
solicitors, by their breach of duty, put the plaintiffs in the position of
being unable properly to contest the first decision, so that the plaintiffs
were reasonably compelled to submit to judgment on the issue, then, in
my judgment, the plaintiffs' claim is not shown to be an abuse of the
process of the court merely because it will, if it succeeds, require the court
to assess the damages on the basis that the prior decision of the court
would not have been made if the solicitors had not been in breach of
duty." H
Thus on this reasoning the Hunter principle may not be irrelevant where
there has been an unapproved judgment by consent (although Lord Diplock
in the passage from the Saif Ali case [1980] AC 198, 223, quoted ante,
pp 885G-886A, would appear to have taken a different view); but the
643
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A principle in any event requires some modification where the claim is against
solicitors on the ground that the solicitors' negligence obliged the client to
accept less than would have been recoverable but for the solicitors'
negligence; and good reason must be shown for reopening the matter.
Plainly, however, the Court of Appeal did not intend to sanction a new and
undesirable form of satellite litigation. It is very common for litigants,
having compromised, to suffer post-settlement remorse. Only rarely will an
action against their legal advisers be otherwise than abusive.
36 It is of interest, if of little direct legal significance, that in Dickinson v
Jones Alexander & Co [1993] 2 FLR 52.1 solicitors accused of negligence in
conducting ancillary relief proceedings leading to a consent order admitted
liability for negligence, so that the only issue was the quantum of damages
which they should pay; and that in Griffiths v Dawson & Co [1993] 2 FLR
C 315 solicitors were held liable and ordered to pay damages for negligence in
the conduct of ancillary relief proceedings.
Discussion
37 It seems to us that in the light of the Hunter case [1982] AC 529 the
first question to be asked on any application to strike out or dismiss a claim
D for damages against lawyers based on their allegedly negligent conduct of
earlier proceedings is whether the claim represents an abusive collateral
challenge to an earlier decision of the court. If the claim does represent such
a collateral challenge it should be dismissed or struck out unless, on the facts
of the particular case, there are grounds for not following that course. This
principle clearly applies to claims against lawyers whether they are acting as
advocates or not. If the claim is dismissed or struck out on application of the
£ Hunter rule, there is no ground for holding the lawyer immune against such
a claim on the ground that public policy requires the recognition of forensic
immunity to prevent re-litigation of matters already finally decided by the
court. If, on the other hand, it is not appropriate, on the facts of a given case,
to strike out or dismiss the claim on application of the Hunter rule, forensic
immunity should be recognised, if at all, only if some other clearly identified
public policy consideration requires it, for it is plain on high and binding
authority that forensic immunity is to be accorded only when, and to the
extent that, the public interest requires that it should.
38 As recognised by the Court of Appeal in the Walpole case [1994] QB
106, 116 and Smith v Linskills [1996] 1 WLR 763, 769, the House of Lords
did not decide in the Hunter case that the initiation of later proceedings
collaterally challenging an earlier judgment is necessarily an abuse of process
C but that it may be. In considering whether, in any given case, later
proceedings do constitute an abusive collateral challenge to an earlier
subsisting judgment it is always necessary to consider with care (1) the
nature and effect of the earlier judgment, (2) the nature and basis of the claim
made in the later proceedings, and (3) any grounds relied on to justify the
collateral challenge (if it is found to be such).
39 In considering (1), the nature and effect of the earlier judgment, it
would in our view be fallacious to treat all judgments as of equal weight. We
are satisfied that for reasons given in the Hunter case and Smith v Linskills, a
collateral challenge in civil proceedings to a subsisting criminal conviction,
particularly a conviction upheld or not challenged on appeal, and whether
the defendant was convicted on his own admission or on the verdict of a
644
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
court or jury, must always be the hardest to justify. Nothing short of fresh A
evidence satisfying the Phosphate Sewage test will ordinarily suffice. Little
less is required to challenge the final decision of the court in civil proceedings
when evidence has been received and judgment given. When, without a fully
contested hearing, the court has given an interlocutory judgment,
or approved a compromise under RSC Ord 8o or RSC Ord 15, r 13(4) or
RSC Ord 85, or made a consent order for ancillary relief, such judgment „
or order is of lesser weight, and the conditions which must be met to justify a
collateral challenge to such a judgment or order will be less stringent. The
giving of such judgments and the making of such orders are not, however, to
be ignored because the full Hunter test is not satisfied. They involve an
exercise of judicial authority, embodied in an enforceable order of the court.
They are not to be lightly disregarded. At the very least, it will be incumbent
(
on a party seeking to mount a collateral challenge to such an order to explain -
why steps were not taken to set aside or challenge the judgment or order
complained of in the original proceedings. If that threshold is crossed, the
Hunter test must be adapted appropriately to the case in question, always
bearing in mind that the fundamental issue is one of abuse. The initiation of
proceedings against legal advisers which involves a collateral attack upon a
consent judgment approved by the court in previous proceedings may, and o
ordinarily will, be an abuse of the process unless the plaintiff can properly
allege a breach of duty which either (1) deprived the plaintiff of a reasonable
opportunity of appreciating that better terms were available whether on
settlement or at a contested hearing than the plaintiff obtained, or (2) placed
the plaintiff in the position of having to accept a settlement significantly less
advantageous or more disadvantageous than he should have had.
40 Although the question arises on the first appeal, we do not find it
necessary to determine what, if any, weight attaches to a consent judgment
not requiring or receiving the approval of the court. The question was first
raised by the court when the argument was well advanced, and although
Mr Jackson (for Arthur J S Hall 8c Co) adopted it, we did not hear full
argument. We are conscious that Lord Diplock in the Saif Ali case [1980]
AC 198 and Ralph Gibson LJ in the Walpole case [1994] QB 106 appear to F
have taken different views.
41 It is not open to us to question the existence of the core forensic
immunity upheld in Rondel v Worsley [1969] 1 AC 191, nor to doubt the
limited extension recognised in the Saif Ali case [1980] AC 198. It is,
however, plain from the tenor of the majority speeches in the Saif Ali case
that any extension beyond the core immunity must be rigorously scrutinised Q
and clearly justified by considerations of public policy. While their
Lordships made it plain that forensic immunity was available to solicitors as
well as barristers, they could scarcely have made it plainer that such
immunity was available only to those acting, in respect of any relevant act or
omission, as advocates. Their speeches cannot be read as countenancing the
grant of forensic immunity to those having the conduct or management of
H
litigation otherwise than as advocates. Section 62 does not alter, and was
enacted against the background of, that rule. Save where a claim relates to
the acts or omissions of an advocate conducting a contested case in open
court, forensic immunity is not to be recognised on the application of any
blanket rule. It is always necessary to look with care at the specific
645
[2002] 1 AC ArthurJS Hall & Co v Simons (CA)
given the day before. It is difficult to derive any clear principle from the case, A
a difficulty which we share with first instance judges who have attempted to
apply it. It does not in any event govern these appeals, which all concern
solicitors only.
45 The second possible exception is Bateman v Owen White [1996]
1 PNLR 1. We would not hold that solicitors were entitled to claim forensic
immunity when they had not at the relevant time been acting as advocates. „
Since this was an interlocutory decision of two Lords Justices refusing leave
to appeal, the strict doctrine of stare decisis does not apply to it: see Boys v
CJwp/m [1968] 2 Q B i .
46 It follows from our discussion of principle above that we have
reservations about the correctness of the reasoning of certain English first
instance decisions we have mentioned above, notably Landall v Dennis
c
Faulkner & Alsop [1994] 5 MedLR 2.68, McFarlane v Wilkinson [1996]
1 Lloyd's Rep 406 and Timothy Walker J in Griffin v Kingsmill [1998] PIQR
P24 (in regard to forensic immunity). Since the decisions of Sir Richard
Scott V-C in Atwell v Michael Perry & Co [1998] 4 All ER 65 and of
Buckley J in Griffin v Kingsmill (No 2), 20 February 1998 are the subject of
pending appeals not now before us we forbear to comment on them.
47 In Kelley v Corston [1998] QB 686 Judge LJ, at p 702, disapproved p
of B v Miller & Co [1996] 2 FLR 23 because he held that an ancillary relief
agreement approved by the court and embodied in an order rendered those
who advised the agreement immune from suit. Pill LJ, at p 710, took the
same view. So, at p 715, did Butler-Sloss LJ. We respectfully agree that the
judge in B v Miller & Co was wrong to discount as he did the court's
approval of the settlement under section 33 A of the 1973 Act. It is however
noteworthy that in B v Miller & Co, in contrast with Kelley v Corston, the
defendants' resistance was based on abuse of process and not forensic
immunity, the claim was against solicitors and not against a barrister, and
the court approving the ancillary relief agreement was not (it seems)
provided with the minimum information required by rule 76A. The client's
main complaint was that the solicitors had negligently failed to obtain an up
to date valuation of the former matrimonial home, as a result of which she F
had allegedly received a much smaller sum than she should have received.
Even if the judge in B v Miller & Co had given appropriate weight to the
court's approval of the ancillary relief settlement, he might very well have
been entitled, in our judgment, to allow the client's claim to proceed.
48 While we recognise the dangers of attempting to summarise the
effect of a long and necessarily complex judgment, and we regret the Q
repetition involved, we think it may be helpful if we draw together the main
features of the law as we now understand it to be in cases where (1) a plaintiff
in a later action seeks relief against legal advisers who acted for the plaintiff
in an earlier action which ended in a considered decision of the court or an
approved settlement and (2) the plaintiff's claim in the later action is based
on negligence allegedly leading to an outcome less favourable than, but for
the negligence, the plaintiff would and should have achieved and (3) the legal
advisers sued in the later action apply to restrain further prosecution of the
proceedings:
(1) The first question to be asked is whether the plaintiff's claim
represents an abusive collateral challenge to the earlier judgment of the
647
[2002] 1 AC ArthurJ S Hall & Co v Simons (CA)
A court. If it does the claim will ordinarily be dismissed or struck out unless
there are grounds for not following that course.
(2) In deciding whether, in any given case, the later proceedings constitute
an abusive collateral challenge to the earlier judgment of the court it is
always necessary to consider (a) the nature and effect of the earlier judgment,
(b) the nature and basis of the claim made in the later proceedings, and (c) any
grounds relied on to justify the collateral challenge (if it is found to be such).
(3) In considering the nature and effect of the earlier judgment, even
greater weight will be accorded to a criminal conviction than to the final
judgment in a contested civil trial, and greater weight will be accorded to
the judgment in a contested civil trial than to an interlocutory judgment or
order or a consent order approved by the court. It can never, however, be
appropriate to explore the extent to which an individual judge considered
C and appraised the merits of a proposed settlement in any particular case.
(4) Where the later proceedings do constitute a collateral attack upon a
consent judgment approved by the court in previous proceedings they may,
and ordinarily will, be an abuse of the process unless the plaintiff can
properly allege a breach of duty which either (a) deprived the plaintiff of a
reasonable opportunity of appreciating that better terms were available
whether on settlement or at a contested hearing than the plaintiff obtained or
(b) placed the plaintiff in the position of having to accept a settlement
significantly less advantageous or more disadvantageous than he should
have had.
(5) A plaintiff seeking to mount a collateral challenge to an earlier
judgment or order will be required to explain why steps were not taken to set
aside or challenge the judgment or order complained of in the original
£ proceedings. The court will be reluctant to sanction the initiation of satellite
proceedings against legal advisers, and will never do so without substantial
grounds. It will never be enough that the plaintiff is suffering from post-
settlement remorse.
(6) Pending reconsideration of Rondel v Worsley [1969] 1 AC 191 and the
SaifAli case [1980] AC 198 by the House of Lords, the ratio of those cases is
binding on lower courts. Any extension of the core forensic immunity
F
beyond the limit recognised in those cases must be rigorously scrutinised and
clearly justified by considerations of public policy. Where later proceedings
are objectionable as an abusive collateral challenge to an earlier judgment of
the court that fact cannot, on its own, afford a public policy ground for
granting forensic immunity.
(7) Forensic immunity (as distinct from the protection accorded to those
Q who, in any capacity, participate in legal proceedings in court) is enjoyed
only by those who, whatever their professional qualification, are in respect
of any relevant act or omission acting as advocates.
(8) There can be no general rule that a lawyer is or is not immune from
liability in advising a client to settle a case, and immunity does not depend
on when or where such advice is given. All depends on the advice given, the
reason for it and the complaint made about it. We now turn to the four
H
appeals.
the request of the owner, Mr Roderick Fox ("the owner"). A dispute arose A
between Mr Simons and the owner which led to proceedings ("the Stoke
proceedings") in which the former claimed sums alleged to be due pursuant
to the building contract and the latter claimed damages for what he claimed
to be faulty work. Arthur J S Hall & Co ("the solicitors") acted for
Mr Simons in connection with the Stoke proceedings and instructed counsel
on his behalf. On 19 August 1991, the day before the trial was due to start,
the owner and Mr Simons settled the proceedings between them. On the
following day Judge Franks, sitting on official referee's business at
Manchester, gave effect to the settlement by a consent order.
50 On 6 March 1992. the solicitors instituted proceedings in the Crewe
County Court against Mr Simons for the recovery of their fees for acting
for Mr Simons in and about the Stoke proceedings. Mr Simons defended
the claim by alleging that the solicitors had been negligent in their conduct C
of the Stoke proceedings. The trial of these proceedings came before Judge
Mackay, sitting at the Liverpool County Court, on 13 October 1997.
Counsel for the solicitors sought and obtained leave to re-amend his reply
and defence to counterclaim so as to assert that the amended defence and
counterclaim did not disclose a reasonable cause of action in that "each and
every act or omission of [the solicitors] relied upon is covered by the
immunity from suit arising out of the conduct of the management of the
cause".
51 Judge Mackay decided to determine this question as a preliminary
issue. He resolved it in favour of the solicitors and, on 14 October 1997,
gave judgment for the solicitors for the amount of their claim, namely
£10,499-54. This is an appeal of Mr Simons from that determination and
judgment. He seeks an order that there be a new trial. He claims that the £
judge was wrong in law to conclude that immunity could attach to the
allegations of negligence made by Mr Simons against the solicitors. To
explain what those allegations were and to provide the background to our
conclusions it is necessary to describe the underlying disputes between
Mr Simons and the owner in greater detail.
52 To carry out the works of renovation to his property at Madeley the
owner engaged the services of an architect, the David Evans Practice ("the
architect"), as well as those of Mr Simons. The timber treatment works
were carried out by ALD Dampcoursing Ltd ("ALD"). The works were
completed in the summer 1986 and the owner paid the sums due to
Mr Simons except for £5,250 which, it was agreed, should be retained by the
owner. On 7 May 1987 there was a meeting at the property attended by the
owner, the architect and Mr Simons. Mr Simons contends that at this C
meeting the owner requested the completion of three snagging items and a
thirty year timber treatment guarantee. He claims that it was agreed
between the three of them that on completion of the snagging items and
production of the guarantee the owner would pay to Mr Simons £4,550 in
full and final settlement of his claim for £5,250. Mr Simons alleges that
although he duly completed the snagging items and produced timber
treatment guarantees from both ALD and Sovereign Chemicals Ltd (by
whom ALD had been approved) the owner refused to pay him £4,550 or any
part of it.
53 On 1 June 1988 Mr Simons instituted proceedings in the Stoke
County Court for the recovery of £4,550 from the owner. On 16 August
649
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
original counterclaim against the owner, £2,990 interest thereon and the A
further sum of £1,000 paid by Mr Simons to the owner. In addition the
judge awarded Mr Simons an indemnity against his costs of the main action
and against his liability for 25% of the owner's costs thereof. The judgment
obtained by Mr Simons against ALD proved to be valueless and he recovered
nothing in respect of it.
57 As we have indicated already the solicitors instituted these g
proceedings for recovery of their fees of £6,840 on 6 March 1992. By his
amended defence and counterclaim Mr Simons denied his indebtedness and
counterclaimed for damages for negligence and breach of contract. His
claims may be summarised as follows: (a) the solicitors had failed to advise
him that his defence based on the agreement with the owner reached in May
1987 was weak and should be compromised; (b) the solicitors were in
breach of the express term of their retainer alleged by Mr Simons that he
would at least recover his own costs; (c) the solicitors had failed to inform
Mr Simons at any time before 19 August 1991 that he should settle the
owner's claim on the terms that he was ultimately forced to accept; (d) the
solicitors had failed to understand the guarantee provided by Sovereign, to
obtain proper expert evidence in time or at all, to advise on the liability of
D
ALD or to investigate its solvency. The essence of Mr Simons' complaint is
that either the solicitors should have advised him in the beginning to settle or
they should have properly prepared for trial so that he could fight the case
with unimpaired prospects of success. The relief sought was damages for the
loss of the opportunity to recover £4,550 under his counterclaim against
the owner and in respect of the liability to pay £1,000 and 25% of his costs to
the owner pursuant to the consent order. E
58 In their amended reply and defence to counterclaim served on May
1997 the solicitors raised a number of defences on the merits but did not
claim any immunity. The action came on for trial before Judge Mackay on
13 October 1997. At the outset counsel for the solicitors sought leave to re-
amend so as to claim immunity in the form to which we have already
referred. This was not opposed. The judge agreed to determine, as a F
preliminary issue, the question of law as to the availability of any such
immunity. In his judgment given on 14 October 1997 he recorded that it
was agreed that he should "try the question of immunity as a preliminary
issue". He then broke that question down into three questions, namely
(a) "does the immunity from suit apply to the settlement of 19 August, the
settlement which occurred the day before the trial took place, or more
appropriately, was listed to take place?" (b) can Simons, the builder, evade
immunity by alleging antecedent acts of negligence?" (c) "if so, does that
apply to any antecedent act of negligence or only those not included in the
ambit of the settlement?" The judge also recorded that counsel for
Mr Simons had not argued the second or third questions but had "left the
other two questions to be decided by this court, but to, as it were, hold his
H
fire with regard to such questions".
59 In his judgment Judge Mackay explained the background to the
preliminary issue and considered the decision of this court in Kelley v
Corston [1998] QB 686. In respect of the first of the questions to which he
had referred he said:
651
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
Barratt v WoolfSeddon
65 In this case Mr Barratt (the husband) sued Woolf Seddon, his former
solicitors for negligence in respect of advice given in relation to, and their F
conduct of, his former wife's claim for ancillary relief which ultimately led to
an order by consent.
66 This is an appeal from the decision of Blofeld J dated 14 October
1997 by which he acceded to an application by the solicitors to strike out the
statement of claim of the husband. By the application dated 22 September
1997 the solicitors applied to amend their defence to allege
"that the terms agreed between [the husband and his wife] were
approved by the court in accordance with the duty of the court to
consider the terms of settlement to be incorporated into a consent order in
matrimonial ancillary relief proceedings. Following such consideration
and approval by the court the said terms were incorporated into such an
order. Accordingly [the solicitors] are entitled to, and claim immunity
from suit in respect of the matters alleged in this action." H
They, in addition, made an application that "the writ and the statement of
claim herein be struck out pursuant to RSC Ord 18, r 19 as disclosing no
reasonable cause of action and/or as being frivolous, vexatious and an abuse
of the process of the court". It is not absolutely clear whether the judge's
653
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A decision was based simply on immunity, or whether it was based also on the
ground that the action was a collateral attack within the Hunter principle,
but it matters not because the appeal has been conducted on the basis that
consideration must be given to both possibilities. In either case one must
take the facts essentially from the statement of claim, and assume them to be
facts that can be established at a trial.
67 The allegations the husband makes so far as material are as follows.
On or about 8 November 1990 he retained the solicitors to advise him in
connection with his matrimonial affairs, and to advise him and act for him in
any proceedings arising from the breakdown of his marriage. The wife
commenced proceedings in the Watford County Court, and, in addition to
petitioning for divorce, requested the court to grant her ancillary relief. The
only asset of significant value which was capable of being realised was their
C jointly held matrimonial home. The wife, through her solicitors, put
forward to the solicitors a value for the home of £3 2.0,000, but the husband
told his solicitors that he was not happy with the valuation and wanted two
valuations obtained. He further informed them of financial problems he was
having in his business affairs. There were negotiations direct between
husband and wife as well as between solicitors. The wife then gave notice on
7 March 1991 that she intended to proceed with her application for ancillary
relief. Direct negotiations continued following which on 7 May 1991, in a
letter, the solicitors proposed to the wife's solicitors that she should receive a
guaranteed sum of £160,000, that sum being put forward on the basis of
a value for the home of £320,000. On 5 June 1991, after direct dialogue, the
husband and wife agreed that the home should be sold and that the wife
should receive £163,000 out of the net proceeds, the balance going to the
£ husband. That agreement was recorded in letters as between the solicitors of
14 and 24 June 1991.
68 On 1 July 1991 the home was placed on the market with an asking
price of £339,000. During July the only offer received was one for £306,000
and the husband informed his solicitors of his concern about the agreement
that he had reached. He informed them of his worries as to whether even the
£320,000 could be achieved and as to the difficulties he would have in
affording the settlement terms.
69 The husband asserts that the advice he received at this stage was
understood by him to be (1) that there was a concluded agreement between
him and his wife, and (2) that the wife could enforce the agreement if he
failed to sign the documents embodying the same, and that a refusal to sign
would simply lead to extra costs being incurred.
C 70 The husband reiterated his concerns to his solicitors, including by
this stage his ill health, but still the husband was advised that he was bound
by the agreement. The husband then went into hospital for a period.
In the meanwhile, on 5 September 1991, on the basis of an agreed minute
of order filed together with Forms 76A from both the husband and the wife
each asserting the approximate value of the home at £320,000, and in the
husband's case the form being signed by the solicitors on his behalf, an order
was made by District Judge Keyes which "by consent" provided that the
minute of order should stand as the order of the court. The minute recited
"upon hearing the solicitors" for the husband and the wife, and provided, so
far as material, for the sale of the home with the wife to receive £163,000 out
of the net proceeds.
654
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
During 1992 the husband's financial position worsened and the home did A
not sell, albeit the price was reduced .
71 It seems (albeit from his statement and not the statement of claim)
the husband consulted other solicitors in June 1992, and on 4 September
1992 an application was made to appeal the order of District Judge Keyes
out of time. That application came before Judge Stockdale on 1 December
1992. The application was compromised. The consent order was set aside
and the new order provided for sale of the home, and for the wife to receive
£137,000.
The home was ultimately sold in August 1993 for £249,000.
72 The husband claims as damages (a) £18,536-96 being the costs and
disbursements in pursuing the appeal; and (b) £20,011-81 being his
calculation of the difference between what he ultimately received from the
proceeds of the home and what he says he should have received if he had C
been properly advised in relation to the ancillary proceedings by the
solicitors. The particulars of negligence can be summarised: (1) failing at
any stage to obtain or advise the obtaining of a valuation of the home;
(2) failing to advise that any agreement or order providing for the division of
proceeds of sale of the matrimonial home should provide for parties to
receive percentage interests, rather than for the wife to receive a guaranteed
sum; (3) failing to advise that the court would not necessarily be obliged to
make an order in the terms of the settlement reached between husband and
wife; (4) lodging at the court a Form 76A recording inaccurately the value of
the home at £3 20,000.
73 Blofeld J approached this case on the basis that B v Miller & Co
[1996] 2 FLR 23 had been held to be wrongly decided. He then compared
the allegations with those made in B v Miller & Co and found that there E
were great similarities. He accordingly struck out the claim.
For the reasons already indicated he was wrong to take the view that B v
Miller & Co had been so comprehensively overruled. What is more Blofeld J
seems to have thought that the position of a solicitor and the position of an
advocate were precisely the same and approached the case from that
standpoint. For reasons already discussed we disagree with that approach.
74 We would approach the case in accordance with the principles
expressed in the earlier part of this judgment by asking first whether the
action was an abuse of process within the collateral attack principle. Our
view is that it cannot be so described. Certainly it can be said to be a
collateral attack on District Judge Keyes' order, but if the allegations are
made out (and the allegations are credible allegations), the solicitors were
responsible for the fact that the plaintiff did not have a proper opportunity of C
appreciating that very much better terms were available, either on a
settlement basis or on a contested hearing basis. They had not obtained a
valuation of the matrimonial home; they had not advised that percentage
interests would be likely to be ordered if requested; they advised that the
agreement reached between husband and wife was final; and they put in a
value of £320,000 in the Form 76A when the only offer so far received had
been well below that figure, and they had no other valuation. Furthermore,
ultimately the husband did, despite the consent order, achieve much better
terms on appeal. There may be an argument as to whether if he had pursued
that appeal more speedily he might not have achieved the very terms that
should have been available before District Judge Keyes, but it is difficult to
655
[2002] 1 AC Arthur J S Hall & Co v Simons (CA)
A see why there would not remain a credible case that by the failure to provide
a reasonable opportunity to appreciate that very much better terms were
available prior to the hearing before District Judge Keyes, the plaintiff has
been put to the expense of conducting an appeal.
In our view the case should not have been struck out for abuse of process
on the collateral attack principle.
75 If the case should not have been struck out as an abuse of process,
have the solicitors shown that they are entitled to immunity for the acts of
negligence alleged?
The solicitors were not in our view acting as advocates in relation to any
alleged act of negligence, and furthermore the conduct said to be negligent
was not in any area where the solicitor could say that he was acting where
public policy, the rationale for immunity, had any impact. Even the failure
C to put in the correct value in a form to be presented to the court does not
seem to us to fall within the area for which immunity was designed for
advocates and should not therefore be held to exist for solicitors.
76 Even if the view expressed in relation to filling in Form 76A were
thought to be too narrow, it does not follow that the claim must be struck
out. The other acts of negligence alleged are very arguably as causative if not
more causative of the plaintiff's loss and do not attract immunity on their
own, and they should not do so simply because ultimately the case was
settled and a court order made. They would not attract immunity if a full
trial had taken place and the failure had caused the action to fail, and they
should not do so simply because a settlement was ultimately reached. The
reason they do not attract immunity is primarily because they are not the
activities normally carried out by an advocate. But, in any event, they are
£ not intimately connected to the conduct of the cause in a sense that would
attract immunity for an advocate if carried out by him or her.
We would allow the appeal.
A rectified then it would have been seen that his net assets did not exceed
£189,500. In that event, he contends, the order in favour of the wife would
have been for substantially less and capable of being satisfied by a transfer to
her of the two blocks of land, valued at £130,000, referred to by
Stephensons in their valuation made in July 1990. The husband contends, as
alleged in the particulars,
s
"If the case on zz August 1991 had been conducted and executed
properly there would have been no need to try to get the consent order
overturned."
All these allegations were denied by the solicitors in their amended defence
served in April 1997.
90 On 4 August 1997 (the trial of the action having been fixed for
4 November 1997), following the decision of the Court of Appeal in Kelley v
Corston [1998] QB 686 the solicitors applied to strike out the proceedings
against them on the grounds that they were frivolous and vexatious and
otherwise an abuse of the process of the court. At the commencement of the
hearing before Judge McGonigal on 9 October 1997 he granted the
application of the solicitors to re-amend their defence. By their re-
D amendment the solicitors claim, relying so far as necessary on section 62 of
the Courts and Legal Services Act 1990, that (1) the settlement was
negotiated by counsel instructed by them on behalf of the husband at the
door of the court and was therefore so intimately connected with the
proceedings that counsel was immune from suit in respect of it; (z) the
solicitors having so instructed counsel properly relied on his advice in respect
£ of the settlement so as themselves to be immune; (3) the consent order giving
effect to the settlement had been approved by the court as required by
section 33A of the Matrimonial Causes Act 1973 so that by reason of such
judicial intervention the solicitors were immune.
91 In his reserved judgment delivered on 30 October 1997 Judge
McGonigal considered the decision of this court in Kelley v Corston. He
concluded that counsel would have been immune from suit if sued by the
husband in respect of his advice regarding the settlement. He then analysed
the decision of Holland J in Landall v Dennis Faulkner & Alsop [1994]
Med LR 268, referred to the speeches of Lord Wilberforce and Lord Diplock
in Saif Ali v Sydney Mitchell & Co [1980] AC 198, Z14 and zzz, and the
terms of section 62 of the Courts and Legal Services Act 1990. After
observing that it was clear from the affidavit of the husband that the advice
C as to the settlement came from both counsel and the solicitors he said:
"In Kelley v Corston the Court of Appeal held that a barrister advising
a client regarding a consent order under the Matrimonial Causes Act
1973 is immune from suit. Accordingly, pursuant to section 6z, a
solicitor advising a client regarding such an order is also immune."
^ 92 The judge then dismissed the allegations of blackmail and undue
pressure exerted on the husband to induce him to settle. As to those
allegations he said:
"I am satisfied that [the husband] is using these words as hyperbole.
The pressure he alleges consisted of such things as warning him that the
660
ArthurJS Hall & Co v Simons (CA) [2002] 1 AC
court could order a sale of the farm to provide capital for [the wife] or A
that continuance of the litigation would be very expensive."
He concluded, therefore, that the solicitors were immune from suit in respect
of any claims brought by the husband in respect of their actions and advice
on 22. August 1991 relating to the consent order.
93 Judge McGonigal then dealt with the complaints against the
solicitors in respect of their acts and omissions before 22 August 1991. He B
analysed them as being (a) the failure of the solicitors to obtain a valuation
of the matrimonial assets in sufficient time before the hearing fixed for
22 August 1991 so as to enable them and counsel to advise the husband as to
the appropriate level of payment at which to settle; (b) the failure of the
solicitors to apply for an adjournment, so that such a valuation might be
produced, until 16 August 1991; (c) the failure of the solicitors to advise the c
husband at any time as to the principles on which the court acts in
determining the level of ancillary relief and the likely basis for a settlement or
order; (d) the failure of the solicitors properly to instruct counsel in time for
him to give independent consideration to the issues and advice to the
husband; (e) the failure of the solicitors to advise the husband as to the
implications of any settlement or order with regard to the realisation of
sufficient money and the tax consequences of doing so. O
94 In that context he considered the speeches of Lord Wilberforce, Lord
Diplock and Lord Salmon in Saif AH v Sydney Mitchell & Co [1980] AC
191, 213, 222 and 227, the test propounded in Rees v Sinclair [1974]
1 NZLR 180 and section 62 of the Courts and Legal Services Act 1990. He
concluded that any decision as to what pre-trial work attracted immunity
should be tested by the reasons for the immunity, namely £
"(a) that all who participate in proceedings before a court should be
immune from suit in /respect of what they do and say or omit to do or say;
(b) that the integrity of public justice should be maintained by
discouraging collateral attacks on a decision of one court by relitigation
of the same issue before another court or by the need to prevent the
immunity of participants in court proceedings being outflanked." p
He considered that each of the complaints, as analysed by him, was immune
for one or both of the reasons for the immunity to which he had referred.
However he also decided that if he were wrong about immunity he would
not strike out the husband's claims for they were not so obviously
unfounded as to justify their summary dismissal before trial.
95 On 23 October 1998 the solicitors applied for leave to serve a c
respondent's notice out of time. They ask this court to uphold the decision
of the judge on the further grounds that the consent order made on 22 August
1991 involved judicial intervention in the form of the court's approval, that
the claim of the husband involved a collateral attack on such order and
because the judge should have concluded from all the papers before him that
the claim of the husband was bound to fail and should be struck out under 11
the inherent jurisdiction of the court as an abuse of the process of the court.
This application was opposed by the husband. We consider that the
solicitors should have the extension of time they sought. The questions of
immunity were all questions of law which had been fully argued by counsel
for parties in the same interest as the husband in one or more of the other
661
[2002] 1 AC ArthurJ S Hall & Co v Simons (CA)
A appeals. Plainly such issues should be considered in the case of this appeal
also. With regard to the claim that the decision of the judge should be
upheld because the husband's claim was hopeless we do not think that the
husband would sustain any prejudice or disadvantage if the solicitors are
allowed to rely on that contention. He did not suggest that he had relied in
any way on the absence of a respondent's notice in his preparation for the
„ hearing of the appeal. Thus the questions which arise on this appeal are
whether the claims against the solicitors must fail because (i) the solicitors
are immune from such suit (2) the claims are precluded by the Hunter
principle and/or (3) they are wholly without merit.
96 Before us the husband appeared in person. In advance of the hearing
he had sworn an affidavit on 14 May 1998 and submitted two skeleton
arguments on 5 October and 1 November 1998 extending in all to 18 typed
c
pages. During the hearing he read to us from a manuscript with which he
provided us with copies. From these documents it is clear that he contests
each and every one of the judge's findings against him. In addition, though
suffering from the disadvantages of extreme deafness, the gravamen of his
complaint was clear enough. He objected strongly to the patronising and
dismissive tone of the confidential note from the solicitors to counsel. But he
D relied on it as showing clearly that the solicitors had not properly prepared
for the trial. He contended that, though instructed on 20 June 1991, they
had done much too little and much too late to prepare for the hearing in
circumstances when they knew of the date for which it had been fixed and of
his profound disagreement with the Stephenson valuation. He submits that
in these circumstances the solicitors cannot escape liability by relying on the
opinion of counsel when they knew that counsel had not been properly
instructed by them. He contends that what happened on 22 August was not
due to any judicial intervention but was the consequence of the almost total
lack of preparation for the hearing.
97 In accordance with our conclusions as to the general principles to be
applied we do not share the judge's conclusion that the solicitors are entitled
to the immunity attaching to an advocate. The solicitors did not act as
F advocates in relation to any of the matters of which the husband complains.
Nor in failing to prepare adequately for the hearing did they rely on
counsel's advice. Accordingly the immunity, if any, must be found in the
proper application of the Hunter principle. That principle is available
because the order required the intervention of the court because of the
provisions of section 33 A of the Matrimonial Causes Act 1973.
Q 98 There is no doubt that all the acts and omissions of the solicitors of
which the husband complains are relied on for the proposition that but for
those acts or omissions the order of the court would have been for a
substantially lower sum. But it does not follow from such consequence that
immunity must attach to the act or omission in question. The Hunter
principle does not preclude relitigation in cases where there is fresh evidence
which casts an entirely new light on the case. In our view this exception is
capable of applying in this case; whether it does will depend on the facts as
found at the trial. For that reason also we would not accept the contention
advanced by the solicitors that the whole of the husband's claim is so lacking
in merit as to be liable to be struck out under the inherent jurisdiction of the
court.
662
ArthurJS Hall& Co v Simons (CA) [2002] 1 AC
A that the first solicitors were entitled to immunity; and (3) that in any event
the first solicitors and Mrs Harris acted on the basis of counsel's advice and
thus the chain of causation was broken. This latter point was not pursued.
104 Once again the facts must be taken essentially from the statement
of claim and the presumption must be that the facts would be established if
there was a trial.
On 8 November 1991, the first solicitors on behalf of the wife obtained
counsel's advice in relation to her claim for ancillary relief. On the basis that
the husband was earning £40,000, and that the wife was on income support
(she being a self-employed psychotherapist/lecturer whose earnings were
equalled by her business expenditure), he advised that the wife was entitled
to periodical payments for herself, unlimited in time, of £8,120 per annum.
The counsel also advised that since the husband was apparently cohabiting
C with a female colleague at work, the solicitors should obtain discovery of the
financial position of that colleague by way of voluntary disclosure or a
witness summons.
105 The same counsel was briefed for the hearing of the wife's ancillary
relief hearing on zz November 1991. Shortly before that date he became
unavailable, and the solicitors had to brief different counsel at short notice.
Outside the court this counsel advised that the wife should consent to an
order that she should be provided with "periodical payments at the rate of
£5,500 per annum payable in equal monthly instalments on 24th each
month commencing 24 December 1991 and ceasing 24 November 1993 that
is, a total of £11,000". The order further provided that the parties' capital
claims should be dismissed. The husband, prior to the order being made,
had represented that his relationship with his colleague had broken down,
E and that thus her financial position was irrelevant. That was untrue in that
in fact the husband had married the colleague on 30 July 1991.
Once the wife discovered that the husband had deceived her and the court
she went to the second solicitors. They commenced an appeal against the
consent order, and much later commenced a further application to set aside
the consent order. Both the appeal and the application to set aside were
dismissed for want of prosecution on 24 November 1994.
106 The allegations of negligence against the first solicitors can be
summarised as follows: (1) failure to brief counsel competent in the relevant
field; (2) failure to inform themselves of counsel's advice on lifelong
maintenance and/or the authorities that told against termination of
maintenance; (3) failure to take account of the wife's instructions; (4) failure
to investigate properly the position of the colleague; (5) incorrect advice that
C it was easy to overturn a consent order if the husband turned out to be lying.
107 Toulson J held first, that the action was not an abuse of process on
the collateral attack principle, and second, that public policy did not seem to
him to require the solicitors to be held immune for the acts of negligence
alleged. His approach is not far removed from that suggested as appropriate
in this judgment. He suggested that the approach of Judge LJ (supported
obiter by Pill and Butler Sloss LJJ) in Kelley v Corston [1998] QB 686
justifying immunity came close to applying the collateral attack principle
under another guise. He also made the point that whereas full hearings carry
with them all the normal rights of appeal, consent orders have the feature
that there may be only very limited rights of appeal, and thus it would be
ironic if the collateral attack principle applied with the same rigour to such
664
ArthurJ S Hall & Co v Simons (CA) [2002] 1 AC
orders when the action was alleging negligence against the lawyers who A
advised the entry into the consent order. He distinguished the factual
situation in Kelley v Corston from the facts of the case before him on the
basis that there was no suggestion that the court that made the order in
Kelley v Corston had not been properly informed, and he held that the action
was not an abuse of process on the collateral attack principle.
108 On immunity he reviewed certain of the authorities and concluded
that the authorities were based on the view of the court as to where public
policy lay, and he took the view that if the allegations made against the
solicitors were true then public policy did not require the plaintiff to be left
without a remedy.
109 In accordance with the principles discussed earlier in this judgment,
we start with the question whether this action is an abuse of process on the
collateral attack principle. In our view it clearly is not, because the alleged C
breaches of duty (which it has to be said are credible allegations), if
established, prevented the plaintiff having a reasonable opportunity of
appreciating that there were very much better terms available either on
settlement or on a full hearing. It can properly be alleged that if they had
briefed competent counsel, taken account of relevant authorities and
investigated the colleague's position, an entirely different and more
advantageous settlement would have been likely.
The fact that the order as obtained was appealable because of the
dishonesty of the husband and then not pursued by the second solicitors may
be a factor to be considered in relation to causation, but it was not (as
recorded by Toulson J's judgment), a point taken as being decisive of the
appeal on its own.
In our view the judge was right to conclude that the action was not an E
abuse of process on the collateral attack principle.
n o Are the solicitors immune? The solicitors in this case were not
acting in any way as advocates. That disposes of any suggestion that there
might be immunity. But in any event if it could be contemplated that a
barrister as advocate might lawfully have performed any of the actions for
which the solicitors are criticised, it does not seem to us that there would be
immunity for the barrister. Even if we had felt constrained by Kelley v
Corston to hold that counsel were immune in so far as he was advising on
settlement at the door of the court, we would not have been prepared to hold
that acts done, or more accurately not done, prior to the settlement
negotiations starting and which would lead to an inadequate settlement
being concluded would be immune unless those acts could be said to be
protected for public policy reasons i e by the rationale for which immunity C
can be justified. An example of such an act would be an insistence that
certain witnesses should not be called as part of the advice leading to
settlement, but none of the acts alleged can be supported by any public
policy rationale.
In our view the judge was right on this issue also and this appeal should be
dismissed.
i n In summary, therefore, we allow the appeal in ArthurJ S Hall & Co
v Simons, Barratt v WoolfSeddon and Cockbone v Atkinson Dacre & Slack,
with the minor or consequential orders we have indicated and dismiss the
appeal in Harris v Scholfield Roberts & Hill. Before parting with these
appeals we should like to add our appreciation for the assistance we have
665
[2002] 1 AC ArthurJ S Hall & Co v Simons (CA)
The plaintiff in the first case and the defendants in the second and fourth
cases appealed. The Bar Council was given leave to intervene.
The facts are stated in the opinions of Lord Steyn, Lord Hoffmann and
Lord Hope of Craighead.
Jonathan Sumption QC, Jeffrey Bacon and Sian Mirchandani for the
solicitors. Almost uniquely among professionals, lawyers have divided
loyalties: they have a duty to the court and as well as to their clients; they are
£• not obliged to win at all costs; they contribute to the workings of justice and
have to act honestly and responsibly. In Rondel v Worsley [1969] 1 AC 191
it was held that a barrister was immune in respect of his conduct of a case in
court. Although there were differences in approach in the speeches there
were three main policy considerations which weighed with the court: (i) the
value of immunity as reinforcing the advocate's paramount duty to the court;
(ii) the desirability of preventing relitigation of the same issues; (iii) the
F
supposed unfairness of imposing liability on barristers, who cannot choose
their clients because of the cab rank rule.
That decision is not out of date. The reasoning is still valid today. The
relitigation issue is not the sole or main justification for the immunity. The
main concern is the barrister's duty to the court. If advocates are exposed to
the threat of themselves being sued by an unsuccessful client with a grievance
C the result is likely to be that advocates take every possible point when
presenting a case. The professional man is motivated by a concern not to be
sued as much as by a concern not to be successfully sued: see Munster v Lamb
(1883) 11 QBD 588. Any change to the rule on immunity will lead, over
time, to more points, even bad points, being raised in litigation generally.
There is no justification for departing from the present rule. The pressure
on the objectivity and detachment of those participating in court
proceedings is greater than it was and the case against the relitigation of
disputes stronger for three reasons, (i) Britain is a more litigious society than
it used to be. (ii) Solicitors have wider rights of advocacy and are more
inclined to exercise them. A solicitor is more vulnerable to pressure from a
litigious client than a barrister is. The solicitor has direct contact with the
666
ArthurJ S Hall & Co v Simons (HL(E)) [2002] 1 AC
A from a decision taken earlier not to plead the point or summon the witness in
the first place. Solicitors are in the same position as counsel when making
such decisions except that they do so at an earlier stage. (3) The act or
omission must concern a matter in which the advocate owes a wider duty
rather than an exclusive duty to his client. The whole reasoning in Rondel v
Worsley [1969] 1 AC 191 is aimed at defining a class of act which gives rise
to divided loyalties.
In Saif Ali v Sydney Mitchell & Co [1980] AC 198, 2.13-215, 224, 230-
232 the House gave some guidance on the point. In practice, the courts have
developed the law pragmatically and with an eye to the policy purpose of the
immunity. Thus, it has been held in England that the immunity attaches to
advice on a plea at a criminal trial (see Somasundaram v M Julius Melchior
& Co [1988] 1 WLR 1394), advice on whether to require the attendance of
C particular witnesses (see Bateman v Owen White [1996] 1 PNLR 1), advice
on the pleadings shortly before an appeal (see McFarlane v Wilkinson [1996]
1 Lloyd's Rep 406) and to a practitioner's pre-trial consideration of the
evidence and his pre-trial analysis of the law (see Atwell v Michael Perry &
Co [1998] 4 All ER 65). On the other hand advice given at the inception of
the proceedings about the correct party to sue is not within the immunity
(see Saif Ali v Sydney Mitchell & Co [1980] AC 198), nor is a negligent
failure to obtain evidence the relevance of which is plain (see Acton v
Graham Pearce & Co [1997] 3 All ER 909).
In both England (see Landall v Dennis Faulkner & Alsop [1994] 5 Med
LR 268 and Kelley v Corston [1998] QB 686) and New Zealand (see Biggar
v McLeod [1978] z NZLR 9) it has been held that the immunity extends to
advice on a settlement at the door of the court or in the course of the trial.
E That is correct. Advice on settlement given in these circumstances will
normally reflect the practitioner's judgment as to the way in which the case is
being, or will be, put in court. It would be unsatisfactory for the immunity
to attach in cases where the practitioner's forensic assessment led him to
fight the case to judgment, but not in cases where his assessment caused his
client to anticipate or discount that judgment by settling with his opponent.
On the other hand, it is implicit in the fact that a lawyer may be liable to his
client for failing to warn him at an early stage about the right party to sue or
the risks attaching to the litigation that advice on settlement which is more
remote from the hearing and does not reflect judgments on how to conduct
the case in court may not be protected.
Solicitors have always enjoyed rights of advocacy before certain tribunals
and a solicitor advocate has the same immunity as counsel. When a solicitor
C instructs counsel to appear as the advocate, but himself does part or all of the
preparatory work for the hearing which counsel would commonly do, and in
respect of which counsel would be immune, the solicitor should also be
immune even though he does not appear as the advocate at the hearing. The
roles of solicitor and junior counsel to a silk are often very similar yet junior
counsel has immunity as an advocate. Immunity should attach to the acts,
not the status, of the person performing them. The policy of immunity was
developed at a time when most non-advocates left all final decisions about
the conduct of litigation to the advocate. The relationship between counsel
and solicitors has changed and decisions now tend to be taken jointly. The
matter is, however, concluded by section 62 of the Courts and Legal Services
Act 1990 which, although not determinative of whether any immunity
668
Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
A policy. The right may be limited by law, provided (i) that the limits are not
such as to impair the essence of the right, (ii) that they are for a legitimate
purpose, and (iii) that the means employed are proportionate to that
purpose: see Ashingdane v United Kingdom (1985) 7 EHRR 528. Examples
of the immunities which the court has held to be acceptable under
article 6 can be found in Fayed v United Kingdom (1994) 18 EHRR 393 and
e Stubbings v United Kingdom (1996) 23 EHRR 213. They leave a broad
margin of appreciation to states. The immunity of legal practitioners in
respect of the conduct of court proceedings is neither arbitrary nor
disproportionate. In Osman v United Kingdom [1999] 1 FLR 193 the court
appears to have either misunderstood or been misinformed about English
law. Even on a striking out application there will be a hearing to determine
what the policy requires in the particular case. That is all that
article 6 requires. The decision about what the policy is or should be is for
the domestic courts.
[Submissions were made on the facts. Reference was made to Robinson v
Robinson (Practice Note) [1982] 1 WLR 786; T u T (Consent Order:
Procedure to Set Aside) [1996] 2 FLR 640 and Xydhias v Xydhias [1999]
2 All ER 386.]
Peter Scott QC, Clare Montgomery QC, David Perry and Mark Simpson
for the Bar Council. Immunity for advocates in criminal and family
proceedings is particularly important as those are areas which are
emotionally charged for clients and solicitors and where counsel most needs
to be in a position to take decisions. But typically litigation of all types is
disappointing or unsuccessful for one side or the other; it is tempting to seek
E
to blame the advocate. It is not in the public interest to create reasons for re-
trials designed to show that the original verdict was wrong. That is properly
the function of the appellate process.
The immunity is that of the advocate and relates solely to his functions.
Out of court immunity is covered by the same legal test as in court
immunity. Witness immunity provides a useful analogy. The immunity is
F similar to the immunity for experts: see Stanton v Callaghan [2000] QB 75.
Settlements are important to the legal process and a lack of immunity would
be damaging in that context. Such settlements are often reached close to
judgment being given and, not infrequently, after prompting by the judge.
Time has not rendered the propositions on which Rondel v Worsley
[1969] 1 AC 191 was based wrong still unarguable. Sections 27 and 28 of
c the Courts and Legal Services Act did not franchise a new type of advocate.
The cab rank rule, contained in the Code of Conduct of the Bar of
England and Wales, is an important rule, the advantages of which can
legitimately be taken into account: see [1969] 1 AC 191, 274-276, 281, 292.
Although it does not apply to solicitor advocates, the fact that there are
certain advocates who do not accept the burden does not undermine the
need for immunity for those who do. It is in the public interest that a
H
barrister who is available to accept instructions in the matter is bound to
provide his services to a client, however unattractive the client or his case
may be, provided only that the client can pay his fee or is legally aided and
the case is within the barrister's usual sphere of practice. To remove the
immunity would undermine the rule and compliance with it.
670
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
The Bar has been subjected to a much lower level of criticism than A
solicitors: see the Annual Report of the Complaints Commissioner 1999.
Within the area of immunity a barrister can still be disciplined but the
complainant cannot be awarded compensation. See also the comments of
Thorpe LJ in Vernon v Bosley (No 2) [1999] QB 18, 64.
If the House were to overrule Rondel v Worsley [1969] 1 AC 191 it would
be trespassing on territory on which Parliament has enacted legislation on
the assumption that the immunity exists : see section zz of the Courts and
Legal Services Act 1999; Hansard (HL Debates), 5 February 1990, cols 570-
578); Hansard (HC Debates), 7 June 1990, cols 325-340; the Supply of
Services (Exclusion of Implied Terms) Order 198Z (SI 198Z/1771) see also
the final report of the Royal Commission on Legal Services 1979, para Z4.
On the approach of the House to overruling its previous decisions, see Food
Corpn of India v Antclizo Shipping Corpn [1988] 1 WLR 603. Any judicial C
decision that the immunity no longer applies must have retrospective effect
regarding actions for negligence which can be brought against advocates.
Legislation does not have such an effect, except in those cases where it
expressly or by necessary implication so provides. There are compelling and
obvious reasons for this.
There is no justification for the suggestion that the application of the
principle in Hunter v Chief Constable of the West Midlands Police [198Z]
AC 5Z9 should be changed.
Montgomery QC following. Article 6 of the Convention is not engaged
because there is no arguable substantive law to which it can attach.
Although normally referred to as an immunity, the reason for the inability of
a claimant to sue his advocate in relation to certain of his acts is that the
advocate owes no duty of care in relation to those acts. Osman v United
Kingdom [1999] 1 FLR 193 does not require consideration. If the
Convention is engaged the approach of the solicitors is correct: see Fayed v
United Kingdom 18 EHRR 393.
The approach of the courts in the United States of America can be seen
in Ferri v Ackerman (1979) 444 US 193. Even there the immunity of
prosecuting counsel remains. If the immunity of prosecutors cannot be F
abolished it should follow that the immunity of defence counsel acting under
legal Aid cannot be abolished. Criminal practitioners will suffer most if the
immunity is to go.
The fact that there is no civil law concept of immunity does not tell
against it. Under the civil law system most of the focus on establishing the
facts rests on the judge. There is nothing curious about giving English
advocates immunity when doing a similar job. The civil law advocate is
under a duty not to mislead the court but has no further duty, such as to
draw adverse authorities to the attention of the court.
For the approach in South Africa see Joubert and Faris, The Law of South
Africa, vol 14 (1999, first reissue), p Z9Z, para Z89 and Morris, Technique in
Litigation, 4th ed (1993), p 60. For the Australian approach see Boland v
Yates Property Corpn Pty Ltd (1999) 74 ALJR Z09. H
Andrew Edis QC, Peter Duckworth, Nicholas Bowen and David
Balcombe for the clients. The same policy justifies both forensic immunity
and abuse of process is the same: they are required, if at all, to avoid trials
involving claims which relitigate issues that have already been decided.
671
[2002] 1 AC Arthur J S Hall & Co v Simons (HL(E))
A There are therefore two rules of law where only one is needed. If the court
can deal with undesirable relitigation as an abuse of process, and if that is the
true public policy which underpins forensic immunity, then it follows that
forensic immunity cannot be justified at all, since there is no unmet public
policy requirement which could justify it. Abuse of process is a better
method of dealing with the relitigation problem than immunity because it
enables a case by case approach which permits the court to do justice in a
way that blanket immunity prevents.
The immunity should be abolished by judicial decision now.
Alternatively that task should be left to Parliament, with full guidance in the
speeches of the House indicating the view that it ought to be abolished. If
immunity survives at all (temporarily or permanently), there should be no
extension. It should be reduced to its smallest possible extent, if necessary
C with test of its scope remodelled for coherence.
If it is justified in respect of work done in court in civil proceedings, then
there is a limited extension to out of court work in civil proceedings. The
scope of that extension must be limited to things done or not done which
actually affected the presentation (not the preparation) of the case in court.
There is a distinction between assembling the legal and factual material for
the trial and presenting that material. This is a consequence of its being
"advocates' immunity". This distinction is impossible to apply which is a
further argument for abolishing the immunity.
There is no relevant parallel between witness immunity and forensic
immunity. A witness owes a duty to tell the truth to the court. Breach of the
duty has penal sanctions. A paid witness, e g, an expert, has duties to his
client but they are all subject to the overriding duty to the court to tell the
£ truth. His duties to his client cannot affect what he says in the witness box.
In the box he owes no duty to his client. As to the extent of an expert's
immunity, see Stanton v Callaghan [2000] QB 75. An advocate has duties to
his client which are qualified by other duties to the court and to his
profession. However, he always owes a common law duty of care to his
client wherever and whatever he does within the scope of his instructions.
The approach of the House in Rondel v Worsley [1969] 1 AC 191 and Saif
Ali v Sydney Mitchell & Co [1980] AC 198 can be regarded as a step by step
approach to the limitation of the immunity. It is now time for the House to
take the next step. The passage of time has rendered unarguable many of the
propositions which were taken seriously in Rondel v Worsley [1969] 1 AC
191. Sections 27 and 28 of the Courts and Legal Services Act 1990 have
enfranchised a new type of advocate and litigator. Section 61 abolished the
C old rule that a barrister could not make a contract for his services. There is
now direct access to the bar. Consumer protection legislation has advanced
considerably (see section 2(2) of the Unfair Contract Terms Act 1977 and
section 13 of the Supply of Goods and Services Act 1982) and public policy
regarding the supply of legal services should take a lead from the trend of
consumer protection in the wider market place. Those are sufficient changes
in the environment in which legal services are provided to justify a
reconsideration of the existence of immunity. The comments in T A Picot
(CI) Ltd v Michel [1995] 2 LRC 247 are of interest.
The approach of Lord Diplock in Saif Ali v Sydney Mitchell & Co [1980]
AC 198 to most of the grounds relied on as justifying the immunity is correct.
Counsel's duty to his client is to use all proper skill and care to advance his
672
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
interests, subject to an overriding duty to the court. The two are not in A
conflict. They may lead to opposite courses of action, in which case duty to
the court must prevail. The consequence is that where counsel acts adversely
to his client's wishes or interests, he will not be liable in negligence where he
acted reasonably and in compliance with his duty to the court. No lawyer is
ever obliged by duty to act negligently.
There is no empirical evidence to support most of the assumptions which „
underpin the immunity. Lack of immunity will not lead to fewer
settlements, quite the opposite. A client under time pressure might be more
willing to settle if he knows he can sue his lawyer for bad advice. The cab
rank rule is of no relevance to the issue.
Doctors are in a similar position to lawyers in that they too are under a
higher ethical duty and are not necessarily able to choose their clients.
c
A doctor in accident and emergency may have to deal with drunken and
abusive patients. Yet doctors enjoy no immunity from being sued for
negligence. It is unacceptable for the legal profession to object to having to
face the possibility of disgruntled clients bringing vexatious or weak claims
against it.
How wide the power to strike out a case as a collateral attack on a judicial
decision extends is dependent on an assessment of the extent of the evil of D
relitigation: see Hunter v Chief Constable of the West Midlands Police
[1982] AC 529. For example, it is hard to say that an omission is intimately
connected with events in court. Various approaches can be seen in Walpole v
Partridge & Wilson [1994] QB 106, Richards v Witherspoon [1999]
PNLR 776 and the decision of the Court of Appeal, at paragraph 48. There
is a greater need to protect against collateral attack when there is a high level
of judicial involvement in coming to a decision. The lower down the scale of
judicial involvement one goes the less the need to protect against collateral
attack. That is the widest acceptable application of the rule. The issue is one
of public policy rather than fairness or logic. The distinction between
preparation of a case and presentation in court provides a definitive line The
principle should be developed to cover all relitigation which is an abuse of
the court but not apply to prevent non-abusive relitigation. It should extend F
to all criminal cases and civil cases where appropriate.
Barrister and solicitor advocates are under duties to their clients under,
respectively, the Code of Conduct of the Bar of England and Wales and the
Solicitors' Practice Rules 1990 and the Law Society's Code for Advocacy
1993. See also Dinch v Dinch [1987] 1 WLR 252, 255 and Vernon v Bosley
(No 2) [1999] QB 18. Professional discipline is a sanction which is intended c
to ensure compliance with the rules. In addition, advocates can be subject to
a wasted costs order: see Ridehalgh v Horsefield [1994] Ch 205. Fears of
defensive advocacy if the immunity is removed are not justified. It is better
that professionals work too hard than that they do not work hard enough.
If the immunity is to remain its scope should be clearly defined and
limited. The immunity sought by the solicitors, to cover people who are not
acting as advocates at the relevant time, would amount to the grant of a new
immunity where none has been granted in the past and which is not justified
by any evidence that it is necessary. It is said to follow logically from the
existing immunity of advocates but logic is not relevant to public policy. It is
really an argument based on fairness: if the advocate is immune, it would be
673
[2002] 1 AC ArthurJ S Hall & Co v Simons (HL(E))
A unfair to the solicitor with him if he were not immune as well. Fairness to
the solicitor is not a relevant consideration.
There has never been any authority in the House of Lords for an
immunity where there was no final hearing: The law is found in the SaifAli
case [1980] AC 198 and in its adoption and explanation of the Rees v
Sinclair [1974] 1 NZLR 180 test. The solicitors are seeking an extension of
g the rule in Kelley v Corston [1998] QB 686 which was itself an extension of
the rule in the Saif AH case [1980] AC 198. The ratio in Kelley v Corston
[1998] QB 686, by which connection with a hearing by time and place to
determine whether acts or omissions attract immunity, is contrary to Rees v
Sinclair [1974] 1 NZLR 180.
Although article 6 does not cover the right of access to the court, that
right is inherently part of the right to a fair trial: see Golder v United
C Kingdom (1975) 1 EHRR 524. The right of access is not absolute and in
imposing limitations the contracting states enjoy a margin of appreciation to
take account of national requirements: see Ashingdane v United Kingdom
7 EHRR 528. An action against an advocate brought either in contract or in
tort requires the determination of substantive, as opposed to potential, civil
rights and obligations recognised under domestic law. Article 6 is, therefore,
D applicable and any procedural rule which has as its effect the prevention
or restriction of access to a trial is potentially incompatible therewith.
A blanket immunity, as opposed to an exclusionary rule depending on the
features of a particular case, is incompatible with the right to a fair trial
under article 6. If the United Kingdom is to meet its obligations under the
Convention forensic immunity should be abolished altogether. If it survives
at all, its application must be determined on a case by case basis: see
E
Ashingdane v United Kingdom 7 EHRR 528; Stubbings v United Kingdom
23 EHRR 213 and Fayed v United Kingdom 18 EHRR 393. Osman v
United Kingdom [1999] 1 FLR 193 is not relevant.
[Submissions were made on the facts.]
Duckworth following. At the time at which the cause of action arose in
both the Barrett and Harris cases (1991) there was no easy way of appealing
F
consent orders. The effect of rule 8(1) of the Family Procedure Rules 1991,
which disapplied CCR Ord 37, r 6, was a cause of confusion and Uncertainty
among the legal profession: see T v T (Consent Order: Procedure to Set
Aside) [1996] 2 FLR 640 and Harris (formerly Manahan) v Manahan
[1996] 4 All ER 454. Both in principle and in practice, when asked to
approve a consent order, the degree of scrutiny given by a district judge was
C strictly limited: see Pounds v Pounds [1994] 1 WLR 1535 and Harris
(formerly Manahan) v Manahan [1996] 4 All ER 454. The state of the law
in 1991 was such that a district judge would not have felt it either desirable
or necessary to peer into the finances of a couple appearing before him with a
draft consent order.
Even since Kelley v Corston [1998] QB 686 (in which neither Pounds v
Pounds [1994] 1 WLR 1535 nor Harris (formerly Manahan) v Manahan
[1996] 4 All ER 454 were cited) it has been a rarity for approval to be
withheld. A district judge is aware that if he disturbs a delicate negotiation
the parties may be plunged afresh into litigation at the time when their
resources are stretched to the limit. It necessarily follows that court
approval is no guarantees of the correctness or appropriateness of a consent
1 AC 1 0 0 2 — z $
674
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
order. The court has exercised its mind to a limited degree, but only on the -A
basis of the facts as presented by the lawyers; those facts include,
prominently, the wish of both parties to settle. The principle of finality in
matrimonial cases has nothing to do with suing one's lawyer.
Sumption QC in reply. Rondel v Worsley [1969] 1 AC 191 is a modern
decision of the House, which has stood for more than three decades. It has
been regularly applied by the lower courts. It has been adopted in the B
common law of other Commonwealth countries, including those whose
legal systems are close to our own. It deals with an issue of substantial
public importance, potentially affecting many practitioners and litigants. It
was considered by a Royal Commission in 1979 and by Parliament in 1990.
Proposals to abrogate it were rejected on both occasions. Its existence is
assumed in sections 22 and 62 of the Courts and Legal Services Act 1990. It Q
was left undisturbed when Parliament revisited the regulation of the legal
profession in 1999. It is the basis on which legal professional risks have been
rated for insurance purposes and on which a substantial number of
outstanding claims are being handled. Such a decision ought not to be
overruled by the House simply because the Committee would have taken a
different view about the requirements of public policy in 1967. It should be
overruled only if (i) it is necessary to overrule it in order to decide the
appeals, and (ii) it is clear that circumstances have changed in such a way as
make its original rationale irrelevant or wrong in modern conditions.
Circumstances have not changed in any respect which would justify the
judicial abrogation of the immunity rule now. The only suggested change of
any significance which is said to militate in favour of its abrogation is
the increased public support for consumer rights. The "consumerist" case ^
against the immunity has always been accepted. It is not new. The real
question is how it is to be balanced against the perceived threat to
practitioners' independence from their own clients which would or might
arise if their professional instincts were gradually modified by the kind of
defensive practises which have become common in other professions more
exposed to litigation. This is inevitably a matter of experienced intuition on F
the part of judges. The experienced judges sitting in Rondel v Worsley
considered it to be a real danger in 1967. No one has pointed to anything
which has made it less real now.
The immunity is justifiable under article 6 for reasons that are well
established in the jurisprudence of the Strasbourg Court. It is plainly not a
"blanket" immunity, for it is neither comprehensive nor indiscriminate, but c
limited to specific functions. Moreover, the client's right receives some
protection from the court's jurisdiction to make wasted costs orders, the
disciplinary procedures of the professions and, in the case of solicitors, from
the compensation scheme relating to inadequate professional service created
by section 37A of and Schedule iA to the Solicitors Act 1974.
Even if the immunity of legal practitioners were fairly to be described as a
H
"blanket" immunity, it would not be contrary to article 6. The Strasbourg
Court has upheld immunities which were total in respect of the particular
complaint that the applicant desired to make and allowed of no alternative
remedy, as it did in the leading case of Ashingdane v United Kingdom (1985)
7EHRR528.
675
[2002] 1 AC Arthur J S Hall & Co v Simons (HL(E))
Lord Steyn
three sides. First, by counsel for the appellant solicitors who were supported A
by the Solicitors Indemnity Fund. Secondly, by counsel for the Bar Council
who was given leave to intervene and played a particularly helpful part in the
appeal. Thirdly, by counsel for the individual litigants who put forward the
contrary argument. Having studied the detailed written arguments and
heard the oral arguments of counsel for the appellants, the interveners, and
the respondents, your Lordships are now in as good a position to form a
judgment on the principal issues as is achievable.
It is necessary to explain the scheme of my opinion. There is a direct link
between the two general questions. How the law deals with the problem of
relitigation of matters already decided, as identified in the Hunter case, is an
important aspect of any reconsideration of the immunity of advocates. It
will be necessary to examine the two issues together. Secondly, although the
cases before the House involve actions against solicitors and not against c
barristers, the reality is that the immunity of barristers is of longer standing
and underpinned to some extent by arguments not available to solicitors. It
will therefore be convenient first to concentrate by and large on the position
in regard to barristers and then to consider whether the conclusions arrived
at also apply to solicitors.
-4the Appellate Committee expressed similar views: see p 23 I E , per Lord Reid;
pp 272B-Z73F, per Lord Pearce; pp 283E-283G, per Lord Upjohn; and
p 293E, per Lord Pearson. This factor is the pivot on which in 1967 the
existence of the immunity hinged. But for it the case would probably have
been decided differently. There were however supporting reasons. Perhaps
the most important of these was the undesirability of relitigating issues
already decided: see p 230B-F, per Lord Reid and pp 249A-250B, per Lord
Morris of Borth-y-Gest. Another factor to which some weight was attached
was the "cab rank" rule, which imposed (and still imposes) upon barristers,
but not solicitors, the obligation to accept instructions from anyone who
wishes to engage their services in an area of the law in which they practised.
In the year after Rondel v Worsley was decided Sir Ronald Roxburgh
(formerly Roxburgh J) said that "the pressures for putting barristers on the
C same footing as other professional men . . . are already strong, and may
grow stronger": 84 LQR 513, 527.
Eleven years later in SaifAli v Sydney Smith Mitchell & Co [1980] AC 198
the House revisited this topic. On this occasion the immunity established in
Rondel v Worsley was not challenged and was not directly in issue. The
existence of the debate on the merits of the immunity was not reopened. The
terrain of the debate centred on the scope of the immunity. Except for Lord
Diplock, the members of the House accepted the rationale of Rondel v
Worsley, which Lord Wilberforce said, at p 213c, was that "barristers . . .
have a special status, just as a trial has a special character: some immunity is
necessary in the public interest, even if, in some rare cases, an individual may
suffer loss." About a barrister's overriding duty to the court Lord Diplock
observed, at p 220:
"The fact that application of the rules that a barrister must observe
may in particular cases call for the exercise of finely balanced judgments
upon matters about which different members of the profession might take
different views, does not in my view provide sufficient reason for granting
absolute immunity from liability at common law. No matter what
profession it may be, the common law does not impose on those who
F practise it any liability for damage resulting from what in the result turn
out to have been errors of judgment, unless the error was such as no
reasonably well-informed and competent member of that profession
could have made. So too the common law makes allowance for the
difficulties in the circumstances in which professional judgments have to
be made and acted upon. The salvor and the surgeon, like the barrister,
may be called upon to make immediate decisions which, if in the result
they turn out to have been wrong, may have disastrous consequences. Yet
neither salvors nor surgeons are immune from liability for negligent
conduct of a salvage or surgical operation; nor does it seem that the
absence of absolute immunity from negligence has disabled members of
professions other than the law from giving their best services to those to
whom they are rendered."
Lord Diplock did, however, think that the immunity could be justified on
two other grounds. The first is the analogy of the general immunity from
civil liability which attaches to all persons in respect of the participation in
proceedings before a court of justice, namely judges, court officials,
witnesses, parties, counsel and solicitors alike: p 222A-C: The second was
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Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Steyn
A rule cannot justify depriving all clients of a remedy for negligence causing
them grievous financial loss. It is "a very high price to pay for protection
from what must, in practice, be the very small risk of being subjected to
vexations litigation (which is, anyway, unlikely to get very far)": Cane, Tort
Law and Economic Interests, p 23 6. Secondly, there is the analogy of the
immunities enjoyed by those who participate in court proceedings: compare
however Cane's observation about the strength of the case for removing the
immunity from paid expert witnesses: at p 237. Those immunities are
founded on the public policy which seeks to encourage freedom of speech in
court so that the court will have full information about the issues in the case.
For these reasons they prevent legal actions based on what is said in court.
As Pannick has pointed out this has little, if anything, to do with the alleged
legal policy which requires immunity from actions for negligent acts: ibid,
C at p 202. If the latter immunity has merit it must rest on other grounds.
Whilst this factor seemed at first to have some attractiveness, it has on
analysis no or virtually no weight at all.
The third factor is the public policy against relitigating a decision of a
court of competent jurisdiction. This factor cannot support an immunity
extending to cases where there was no verdict by the jury or decision by the
court. It cannot arguably justify the immunity in its present width. The
major question arises in regard to criminal trials which have resulted in a
verdict by a jury or a decision by the court. Prosecuting counsel owes no
duty of care to a defendant: Elguzouli-Daf v Comr of Police of the
Metropolis [1995] QB 335. The position of defence counsel must however
be considered. Unless debarred from doing so, defendants convicted after a
full and fair trial who failed to appeal successfully will from time to time
f attempt to challenge their convictions by suing advocates who appeared for
them. This is the paradigm of an abusive challenge. It is a principal focus of
the principle in Hunter v Chief Constable of the West Midlands Police
[1982] AC 529. Public policy requires a defendant who seeks to challenge
his conviction to do so directly by seeking to appeal his conviction. In this
regard the creation of the Criminal Cases Review Commission was a notable
step forward. Recently in R v Secretary of State for the Home Department,
Ex p Simms [2000] 2 AC 115, 127-128, there was uncontroverted evidence
before the House that the Commission is seriously under-resourced and
under-funded. Incoming cases apparently have to wait two years before they
are assigned to a case worker. This is a depressing picture. The answer is
that the functioning of the Commission must be improved. But I have no
doubt that the principle underlying the Hunter case must be maintained as a
C matter of high public policy. In the Hunter case the House did not, however,
"lay down an inflexible rule to be applied willy-nilly to all cases which might
arguably be said to be within it": Smith v Linskills [1996] 1 WLR 763, 769,
per Sir Thomas Bingham MR. It is, however, prima facie an abuse to initiate
a collateral civil challenge to a criminal conviction. Ordinarily therefore a
collateral civil challenge to a criminal conviction will be struck out as an
abuse of process. On the other hand, if the convicted person has succeeded
in having his conviction set aside on any ground, an action against a barrister
in negligence will no longer be barred by the particular public policy
identified in the Hunter case. But, in such a case the civil action in negligence
against the barrister may nevertheless be struck out as unsustainable under
the new flexible CPR rr 34(2)(a) and 24.2. If the Hunter case is interpreted
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Lord Steyn
and applied in this way, the principal force of the fear of oblique challenges A
to criminal convictions disappears. Relying on my experience of the
criminal justice system as a presiding judge on the Northern Circuit and as a
member of the Court of Appeal (Criminal Division), I do not share intuitive
judgments that the public policy against relitigation still requires the
immunity to be maintained in criminal cases. That leaves collateral
challenges to civil decisions. The principles of res judicata, issue estoppel
and abuse of process as understood in private law should be adequate to
cope with this risk. It would not ordinarily be necessary to rely on the
Hunter principle in the civil context but I would accept that the policy
underlying it should still stand guard against unforeseen gaps. In my
judgment a barrister's immunity is not needed to deal with collateral attacks
on criminal and civil decisions. The public interest is satisfactorily protected
by independent principles and powers of the court. C
The critical factor is, however, the duty of a barrister to the court. It
also applies to every person who exercises rights of audience before any
court, or who exercises rights to conduct litigation before a court: see
sections 2.7UA) and 28(2A) of the Courts and Legal Services Act 1990 as
inserted by section 42 of the Access to Justice Act 1999. It is essential that
nothing should be done which might undermine the overriding duty of an
advocate to the court. The question is however whether the immunity is
needed to ensure that barristers will respect their duty to the court. The
view of the House in 1967 was that assertions of negligence would tend to
erode this duty. In the world of today there are substantial grounds for
questioning this ground of public policy. In 1967 the House considered
that for reasons of public policy barristers must be accorded a special
status. Nowadays a comparison with other professionals is important. £
Thus doctors have duties not only to their patients but also to an ethical
code. Doctors are sometimes faced with a tension between these duties.
Concrete examples of such conflicting duties are given by Ian Kennedy,
Treat Me Right; Essays in Medical Law and Ethics (1988). A topical
instance is the case where an Aids infected patient asks a consultant not to
reveal his condition to the patient's wife, general practitioner and other
healthcare officials. Such decisions may easily be as difficult as those facing
barristers. And nobody argues that doctors should have an immunity from
suits in negligence.
Comparative experience may throw some light on the question whether
in the public interest such an immunity of advocates is truly necessary. In
1967 no comparative material was placed before the House. Lord Reid did,
however, mention other countries where public policy points in a different C
direction: [1969] 1 AC 191, 228E. In the present case we have had the
benefit of a substantial comparative review. The High Court of Australia
followed Rondel v Worsley: Gianarelli v Wraith (1988) 165 CLR 543; see
also Boland v Yates Property Corpn Pty Ltd (1999) 74 ALJR 209. In New
Zealand the Court of Appeal has taken a similar course: Rees v Sinclair
[1974] 1 NZLR 180. It is a matter of significance that the High Court of
Australia and the Court of Appeal of New Zealand came to the conclusion
that a barristers immunity from actions in negligence is required by public
policy considerations in those countries. On the other hand, in countries in
the European Union advocates have no immunity. It is true that there is a
difference in that the control of a civilian judge over the proceedings is
681
[2002] 1 AC Arthur J S Hall & Co v Simons (HL(E))
Lord Steyn
battle, often has to make decisions quickly and under pressure, in the fog A
of war and ignorant of developments on the other side of the hill.
Mistakes will inevitably be made, things done which the outcome shows
to have been unwise. But advocacy is more an art than a science. It
cannot be conducted according to formulae. Individuals differ in their
style and approach. It is only when, with all allowances made, an
advocate's conduct of court proceedings is quite plainly unjustifiable that _
it can be appropriate to make a wasted costs order against him."
For broadly similar reasons it will not be easy to establish negligence against
a barrister. The courts can be trusted to differentiate between errors of
judgment and true negligence. In any event, a plaintiff who claims that poor
advocacy resulted in an unfavourable outcome will face the very great
obstacle of showing that a better standard of advocacy would have resulted c
in a more favourable outcome. Unmeritorious claims against barristers will
be struck out. The new Civil Procedure Rules 1999, have made it easier to
dispose summarily of such claims: rules 34(2)(a) and 24.2. The only
argument that remains is that the fear of unfounded actions might have a
negative effect on the conduct of advocates. This is a most flimsy
foundation, unsupported by empirical evidence, for the immunity.
D
Secondly, it must be borne in mind that one of the functions of tort law is to
set external standards of behaviour for the benefit of the public. And it
would be right to say that while standards at the Bar are generally high, in
some respects there is room for improvement. An exposure of isolated acts
of incompetence at the Bar will strengthen rather than weaken the legal
system. Thirdly, and most importantly, public confidence in the legal system
is not enhanced by the existence of the immunity. The appearance is created £
that the law singles out its own for protection no matter how flagrant the
breach of the barrister. The world has changed since 1967. The practice of
law has become more commercialised: barristers may now advertise. They
may now enter into contracts for legal services with their professional
clients. They are now obliged to carry insurance. On the other hand, today
we live in a consumerist society in which people have a much greater
F
awareness of their rights. If they have suffered a wrong as a result of the
provision of negligent professional services, they expect to have the right to
claim redress. It tends to erode confidence in the legal system if advocates,
alone among professional men, are immune from liability for negligence. It
is also noteworthy that there is no obligation on the barrister (or for that
matter the solicitor advocate) to inform a client at the inception of the
relationship that he is not liable in negligence, and in practice the client is Q
never so informed. Given that the resort to litigation is often one of the most
important decisions in the life of the client, it has to be said that this is not a
satisfactory position. Moreover, conduct covered by the immunity is
beyond the remit of the Legal Services Ombudsman: section 22(7)(b) of the
Courts and Legal Services Act 1990. In combination these factors reinforce
the already strong case for ending the immunity.
My Lords, one is intensely aware that Rondel v Worsley [1969] 1 AC 191
was a carefully reasoned and unanimous decision of the House. On the
other hand, it is now clear that when the balance is struck between
competing factors it is no longer in the public interest that the immunity in
favour of barristers should remain. I am far from saying that Rondel v
683
[2002] 1 AC ArthurJ S Hall & Co v Simons (HL(E))
Lord Steyn
A Worsley was wrongly decided. But on the information now available and
developments since Rondel v Worsley I am satisfied that in today's world
that decision no longer correctly reflects public policy. The basis of the
immunity of barristers has gone. And exactly the same reasoning applies to
solicitor advocates. There are differences between the two branches of the
profession but not of a character to differentiate materially between them in
respect of the issue before the House. I would treat them in the same way.
That brings me to the argument that the ending of the immunity, if it is to
be undertaken, is a matter for Parliament. This argument is founded on
section 6z of the Courts and Legal Services Act 1990. It reads:
"(1) A person—(a) who is not a barrister; but (b) who lawfully
provides any legal services in relation to any proceedings, shall have the
same immunity from liability for negligence in respect of his acts or
omissions as he would have if he were a barrister lawfully providing those
services. (2) No act or omission on the part of any barrister or other
person which is accorded immunity from liability for negligence shall give
rise to an action for breach of any contract relating to the provision by
him of the legal services in question."
The background to this provision is, of course, the judicially created
immunity of barristers, which in 1967 was held by the House to be founded
on public policy. And it will be recollected that Lord Reid observed that
public policy is not immutable. Against this background the meaning of
section 62 is clear. It provides that solicitor advocates will have the same
immunity as barristers have. In other words, the immunity of solicitors will
follow the fortunes of the immunity of barristers, or track it. Section 62 did
£ not either expressly or by implication give parliamentary endorsement to the
immunity of barristers. In these circumstances the argument that it is
beyond the power of the House of Lords, which created the immunity spelt
out in Rondel v Worsley, to reverse that decision in changed circumstances
involving a different balance of policy considerations is not right. Should the
House as a matter of discretion leave it to Parliament? This issue is more
finely balanced. It would certainly be the easy route for the House to say "let
F
us leave it to Parliament". On balance my view is that it would be an
abdication of our responsibilities with the unfortunate consequence of
plunging both branches of the legal profession in England into a state of
uncertainty over a prolonged period. That would be a disservice to the
public interest. On the other hand, if the decision is made to end the
immunity now, both branches of the profession will know where they stand.
Q They ought to find it relatively easy to amend their rules where necessary and
to adjust their already existing insurance arrangements in so far as that may
be necessary.
My Lords, the cards are now heavily stacked against maintaining the
immunity of advocates. I would rule that there is no longer any such
immunity in criminal and civil cases. In doing so I am quite confident that
the legal profession does not need the immunity.
H
The Hunter case
So far as the Hunter case involves a separate question before the House
I would refer to my discussion of this topic under the heading of immunity of
barristers.
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Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Steyn
A decisions, I would have no doubt that the public interest demanded that the
advocate's immunity be preserved.
But in my judgment the law has already provided a solution where later
proceedings are brought which directly or indirectly challenge the
correctness of a criminal conviction. Hunter v Chief Constable of the West
Midlands Police [1982] AC 529 establishes that the court can strike out as an
abuse of process the second action in which the plaintiff seeks to re-litigate
issues decided against him in earlier proceedings if such re-litigation would
be manifestly unfair to the defendant or would bring the administration of
justice into disrepute. In view of the more restrictive rules of res judicata and
issue estoppel it is not clear to me how far the Hunter case goes where the
challenge is to an earlier decision in a civil case. But in my judgment where
the later civil action must, in order to succeed, establish that a subsisting
C conviction is wrong, in the overwhelming majority of cases to permit the
action to continue would bring the administration of justice into disrepute.
Save in truly exceptional circumstances, the only permissible challenge to a
criminal conviction is by way of appeal.
It follows that, in the ordinary case, an action claiming that an advocate
has been negligent in criminal proceedings will be struck out as an abuse of
Q process so long as the criminal conviction stands. Only if the conviction has
been set aside will such an action be normally maintainable. In these
circumstances there is no need to preserve an advocate's immunity for his
conduct of a criminal case since, in my judgment, the number of cases in
which negligence actions are brought after a conviction is quashed is likely
to be small and actions in which the conviction has not been quashed will be
struck out as an abuse of process.
E
For these reasons, and the much fuller reasons given by Lord Steyn and
Lord Hoffmann, I would dismiss these appeals.
contract there could be no liability. But that reason was undermined when A
the House of Lords decided in Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465 that, even without a contract, a person who negligently
performed professional or other duties which he had undertaken could be
sued in tort. So the whole question was re-examined by the House in
Rondel v Worsley [1969] 1 AC 191. What emerged was a different rule of
immunity, in some respects wider and in others narrower, not based upon „
any technicalities but upon what the House perceived as the public interest
in the administration of justice.
The new rule was narrower because, although their Lordships were not
unanimous about its precise limits, they agreed that it should in general
terms be confined to acts concerned with the conduct of litigation. None of
them thought that it could apply to non-contentious work. Barristers had
previously been immune from liability for anything. On the other hand, the C
new rule was wider in that it also applied to solicitors.
Most of the speeches in Rondel v Worsley [1969] 1 AC 191 were devoted
to explaining why the new immunity was necessary. The old cases had not
relied solely upon the technicalities of contract. The rule was also said to be
an expression of public policy. But Lord Reid said, at p 2.27B-C, that public
policy was "not immutable" and that because "doubts appear to have arisen D
in many quarters whether that rule is justifiable in present day conditions in
this country" it was proper to "re-examine the whole matter". The grounds
upon which their Lordships considered that public policy required a
modified immunity may be summarised under four heads: divided loyalty,
the cab rank, the witness analogy and collateral challenge.
3. Divided loyalty E
Lawyers conducting litigation owe a divided loyalty. They have a duty to
their clients, but they may not win by whatever means. They also owe a duty
to the court and the administration of justice. They may not mislead the
court or allow the judge to take what they know to be a bad point in their
favour. They must cite all relevant law, whether for or against their case.
They may not make imputations of dishonesty unless they have been given F
the information to support them. They should not waste time on
irrelevancies even if the client thinks that they are important. Sometimes the
performance of these duties to the court may annoy the client. So, it was
said, the possibility of a claim for negligence might inhibit the lawyer from
acting in accordance with his overriding duty to the court. That would be
prejudicial to the administration of justice. r
A consideration was said to apply with particular force to the criminal bar,
where the unsuccessful client, like Mr Rondel, was likely to have leisure to
ponder the way his trial had been conducted and access to legal aid if he
could persuade another lawyer that he had an arguable case.
6. Collateral challenge
If a client could sue his lawyer for negligence in conducting his litigation,
he would have to prove not only that the lawyer had been negligent but also
D that his negligence had an adverse effect upon the outcome. This would
usually mean proving that he would have won a case which he lost. But this
gives rise to the possibility of apparently conflicting judgments which could
bring the administration of justice into disrepute. A client is convicted and
sent to prison. His appeal is dismissed. In prison, he sues his lawyer for
negligence. The lawyer's defence is that he was not negligent but that, in any
c case, the client has suffered no injustice because whatever the lawyer did
would not have secured an acquittal. In seeking to establish the latter point,
the lawyer may or may not be able to re-assemble the witnesses who gave
evidence for the prosecution. The question of whether the client should have
been acquitted is then tried on evidence which is bound in some respects to
be different, before a different tribunal and in the absence of the prosecution.
The civil court finds, on a balance of probability, that the lawyer was
F
negligent and that if he had conducted the defence with reasonable skill, the
client would have been acquitted. Or perhaps that he would have had a 50%
chance of being acquitted. Damages are awarded. But what happens then?
Does the client remain in prison, despite the fact that a judge has said there
was an even chance that he would have been acquitted? Should he be
released, notwithstanding that the prosecution has had no opportunity to
r say that his conviction was correct? Should it be referred back to the Court
of Appeal and what happens if the Court of Appeal, on the material before it,
takes a different view from the civil judge? The public would not understand
what was happening. So it was said that to allow clients to sue for
negligence would allow a "collateral challenge" to a previous decision of
another court. Even though the parties were different, this would be
contrary to the public interest.
H
7. The scope of the immunity
Eleven years later, after Rondel v Worsley [1969] 1 AC 191, the House of
Lords in SaifAli v Sydney Mitchell & Co [1980] AC 198 had to consider the
limits of the immunity. There was no challenge to the decision itself or the
688
ArthurJ S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hoffmann
core immunity for the conduct of litigation in court. The question was the A
extent to which that immunity cast its shadow upon acts done out of court.
In the particular case, it was a barrister's failure to advise joining additional
parties before the limitation period had expired. The test for the out of court
immunity adopted by the majority of the House was whether the work was
so "intimately connected" with the conduct of the case in court as to amount
to a decision as to how it would be conducted at the hearing. By this test, the
barrister's conduct fell outside the immunity.
Although the immunity itself was not under challenge in SaifAH v Sydney
Mitchell & Co [1980] AC 198, Lord Diplock considered that the need to
delimit its scope required a reconsideration of its rationale. He was
unimpressed by the divided loyalty argument which had been in the
forefront of the reasoning in Rondel v Worsley [1969] 1 AC 191. He thought
no better of the cab rank rule. But he considered that the analogy with C
witness immunity and the collateral challenge argument were sufficient to
justify a limited immunity.
8. A reconsideration
In the cases now under appeal, the Court of Appeal was of course bound
by Rondel v Worsley [1969] 1 AC 191 and SaifAH v Sydney Mitchell & Co D
[1980] AC 198. It decided that in all three cases the alleged negligence of the
solicitors was not within the scope of the immunity as extended to out of
court work. Their advice was not intimately connected with the way in
which the case, if it had not settled, would have been conducted in court.
But before your Lordships, the respondent clients have made a root and
branch attack on the immunity. They say that it should be altogether
abolished. Over 30 years have passed since Rondel v Worsley [1969]
1 AC 191; public policy, as Lord Reid said at the time, is not immutable, and
there have been great changes in the law of negligence, the functioning of the
legal profession, the administration of justice and public perceptions. They
say that it is once again time to re-examine the whole matter. My Lords,
I agree. In reconsidering these questions, I have been greatly assisted by a
wealth of writing on the subject by judges, practitioners and academics, in F
the United Kingdom and overseas. I hope that I will not be thought
ungrateful if do not encumber this speech with citations. The question of
what the public interest now requires depends upon the strength of the
arguments rather than the weight of authority.
"second strand" of the divided loyalty argument. As he puts it, "it is not A
right that a person performing an important public duty by taking part in a
[criminal] trial should be vexed by an unmeritorious action . . . " (post,
p 731F-G). I shall deal with this argument, which I propose to call the
"vexation argument," before returning to the one advanced by
Mr Sumption.
A accordance with one's duty to the court and it is hard to imagine anyone
who would plead such conduct as a cause of action. So when the advocate
decides that he ought to tell the judge about some authority which is
contrary to his case, I do not think it would for a moment occur to him that
he might be sued for negligence. I think it is of some significance that the
situation in which the interests of the client and the duty to justice are most
likely to come into conflict is in the preparation of the list of documents for
discovery. The lawyer advising on discovery is obliged to insist that he
disclose relevant documents adverse to his case which are not protected by
privilege. But solicitors who undertake no advocacy usually perform this
task and it has never been thought to be protected by immunity.
Mr Sumption did not really suggest that any conscious calculation would
take place. What he said was that it would lead to defensive lawyering,
C rather as liability for professional negligence is said to lead to defensive
medicine. The advocate would take every possible point when otherwise he
might have been willing to shorten the proceedings by conceding that some
were really non-starters. But prolixity is a recognised problem even with the
immunity in place. Lawyers want to do as much as they honestly can for
their client and occasionally more. The tendency to overkill is not inhibited
by the system under which they are conventionally paid, which is reasonable
remuneration for work reasonably done. So the problem has to be contained
in other ways. The disapproval of the court is a traditional curb on prolixity.
But it has not been enough. Other mechanisms have had to be put into
place. The new Civil Procedure Rules have given judges a battery of powers
to keep the resources expended on a case proportionate to the its value and
importance.
5 An important innovation for the purpose of restraining unnecessary
expenditure on costs has been the extension in 1990 of the power of the
court to make wasted costs orders. The implications of this jurisdiction are
in my view so relevant to the present argument that the subject deserves a
section of its own.
to a wasted costs order being visited upon the advocate by summary process, A
before the very judge hearing the case, is likely to be more present to the
mind of an advocate than the prospect of an action for negligence at some
time in the future. If, therefore, the possibility of being held liable in
negligence is calculated to have an adverse effect on the behaviour of
advocates in court, one might expect this to have followed, at least in some
degree, from the introduction of wasted costs orders. „
Such was certainly the submission of counsel for both the Law Society
and the Bar Council to the Court of Appeal in Ridehalgh v Horsefield [1994]
Ch Z05. The Courts and Legal Services Act 1990 had extended rights of
audience in the superior courts to solicitors and section 62 recognised that
they should in that capacity have whatever immunities were enjoyed by
barristers:
"(1) A person—(a) who is not a barrister; but (b) who lawfully
provides any legal services in relation to any proceedings, shall have the
same immunity from liability for negligence in respect of his acts or
omissions as he would if he were a barrister lawfully providing those
services."
The two professional bodies argued that any liability for wasted costs Q
orders should be subject to the immunity recognised in section 62. Their
counsel were not however agreed on how the divided loyalty of the advocate
would be affected. Mr Matheson QC for the Law Society said, at p 213E,
that it would "affect the willingness of legal representatives fearlessly to
represent their clients' interests". Mr Rupert Jackson QC, for the Bar
Council, advanced, at pp 217-218, the Rondel v Worsley [1969] 1 AC 191
£
argument that it would affect the ability of the barrister "to be able to
perform his duty to the court fearlessly and independently". Either version
of the argument would have made a sizeable hole in the new jurisdiction,
particularly in its application to barristers in criminal proceedings. The
Court of Appeal rejected it. Since then, many wasted costs orders have been
made as a result of the negligent conduct of legal proceedings.
My Lords, I accept that the liability of a negligent advocate to a wasted p
costs order is not the same as a liability to pay general damages. But the
experience of the wasted costs jurisdiction is the only empirical evidence we
have available in this country to test the proposition that such liability will
have an adverse effect upon the way advocates perform their duty to the
court. There is no doubt that the jurisdiction has given rise to problems,
particularly in exercising it with both fairness and economy. But I have
found no suggestion that it has changed standards of advocacy for the worse.
On the contrary. In Fletamentos Maritimos SA v Effjobn International
BV (unreported) 10 December 1997; Court of Appeal (Civil Division)
Transcript No 2115 of 1997, the Court of Appeal made a wasted costs order
against a firm of solicitors who had instructed counsel to made a hopeless
application for leave to appeal. Simon Brown LJ ended his judgment by
saying: H
"Nothing in this judgment should, or I believe will, deflect legal
representatives, on instructions, from vigorously pursuing and arguing
the most difficult cases. An argument, however unpromising, is perfectly
properly advanced (not least on an application for leave to appeal)
695
[2002] 1 AC Arthur J S Hall & Co v Simons (HL(E))
Lord Hoffmann
A provided only and always that it is respectable and is not being pursued
for reasons other than a genuine belief in the possibility of its success. If
our order today were to discourage some of the more absurd arguments
with which this court is sometimes plagued, I for one would not be
regretful."
I J . Overseas experience
D
Mr Sumption, for the solicitors, and Mr Peter Scott, for the Bar Council,
say that one cannot draw any useful conclusions from other legal systems in
which no immunity exists. Legal cultures differ. The court procedures of
Europe and the United States, for example, lack the predominantly oral
character of litigation in the United Kingdom. In Australia and New
Zealand, where procedures are most similar, Rondel v Worsley [1969]
1 AC 191 is followed. In general I accept this, but I cannot refrain from
drawing attention to the experience in Canada. It appears that in that
country no immunity was claimed for lawyers before Rondel v Worsley
[1969] 1 AC 191. Then, in Demarco v Ungaro, 95 DLR (3d) 385, a firm of
barristers and solicitors at Niagara Falls, Ontario found themselves sued by
a former client for negligence in the conduct of a case in which he had been
D ordered to pay $6,000 and costs. They argued that as long as the immunity
in England was based on the absence of a contract with a barrister, it could
obviously have no application in Canada. Lawyers there contracted with
their clients. But now that the House of Lords in Rondel v Worsley [1969]
1 AC 191 had reissued the immunity with a newly minted rationale, there
was no reason why the arguments of public policy should not also pass
current in Canada. Krever J examined that case and Saif Ali v Sydney
Mitchell & Co [1980] AC 198, as well as the few Canadian cases on the
subject and explained the differences between the Canadian and English
legal professions. But I do not think it would be unfair to summarise the pith
of the judgment on the divided loyalty argument as being that Canada had
got on perfectly well without an immunity for over a hundred years and
there was no reason to think that it needed to be introduced in order to
F encourage lawyers to perform their duties to the court. He said, at p 406:
"With respect to the duty of counsel to the court and the risk that, in
the absence of immunity, counsel will be tempted to prefer the interest of
the client to the duty to the court and will thereby prolong trials, it is my
respectful view that there is no empirical evidence that the risk is so
serious that an aggrieved client should be rendered remediless."
Although a decision at first instance in Ontario, the careful and fully
reasoned decision of Krever J appears to have been treated as settling the law
in Canada. It has not since been challenged.
A men and that we are improving our ways of dealing with them. If the
prospect of their being brought against lawyers serves as an incentive to
improve those procedures even more, so much the better for everyone.
I should mention that Lord Diplock in Saif AH v Sydney Mitchell & Co
[1980] AC 198, 221 dismissed the cab rank argument for much the same
reasons.
D
It may be said that this passage is combining two arguments: the one
based upon evidential difficulty, which is not, as I have said, a general reason
for refusing to try a case, and the argument that conflicting decisions may Q
bring the administration of justice into disrepute. But I think that Lord
Diplock is saying that the fallibility of any conclusion about whether the
earlier case would have been decided differently reinforces the public interest
rule about avoiding conflicting decisions. This is obviously an argument
entitled to great respect.
But actions for negligence against lawyers are not the only cases which
give rise to a possibility of the same issue being tried twice. The law has to
deal with the problem in numerous other contexts. So, before examining the
strength of the collateral challenge argument as a reason for maintaining the
immunity of lawyers, it is necessary to consider how the law deals with
collateral challenge in general.
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Lord Hoffmann
A created the immunity and the judges should say that the grounds for
maintaining it no longer exist. Cessante ratione legis, cessat lex ipsa.
and causation, but I see no reason why, if the plaintiff has a real prospect of A
success, he should not be allowed the attempt.
There is, I think, a relevant difference between criminal proceedings and
civil proceedings. In civil proceedings, the maxim nemo debet bis vexari pro
una et eadem causa applies very strongly. Fresh evidence is admissible on
appeal only subject to strict conditions. Even if a decision is based upon a
view of the law which is subsequently expressly overruled by a higher court,
the judgment itself remains res judicata and cannot be set aside: see In re
Waring (No z) [1948] Ch 221. An issue estoppel created by earlier litigation
is binding subject to narrow exceptions: see Arnold v National Westminster
Bank pic [1991] 2 AC 93. But the scope for re-examination in criminal
proceedings is much wider. Fresh evidence is more readily admitted.
A conviction may be set aside as unsafe and unsatisfactory when the accused
appears to have been prejudiced by "flagrantly incompetent advocacy": see C
R v Clinton [1993] 1 WLR 1181. After appeal, the case may be referred to
the Court of Appeal (if the conviction was on indictment) or to the Crown
Court (if the trial was summary) by the Criminal Cases Review Commission:
see Part II of the Criminal Appeal Act 1995.
It follows that in my opinion it would ordinarily be an abuse of process
for a civil court to be asked to decide that a subsisting conviction was wrong.
This applies to a conviction on a plea of guilty as well as after a trial. The
resulting conflict of judgments is likely to bring the administration of justice
into disrepute. The arguments of Lord Diplock in the long passage which
I have quoted from Saif Ali v Sydney Mitchell & Co [1980] AC 198,
222-223 are compelling. The proper procedure is to appeal, or if the right of
appeal has been exhausted, to apply to the Criminal Cases Review
Commission under section 14 of the 1995 Act. I say it will ordinarily be an E
abuse because there are bound to be exceptional cases in which the issue can
be tried without a risk that the conflict of judgments would bring the
administration of justice into disrepute. Walpole v Cartridge & Wilson
[1994] QB 106 was such a case.
Once the conviction has been set aside, there can be no public policy
objection to an action for negligence against the legal advisers. There can be
no conflict of judgments and the only contrary arguments which remain are
those of divided loyalty, vexation and the cab rank, all of which I have
already rejected. Acton v Graham Pearce & Co [1997] 3 All ER 909 is a
good example of such an action in a case which lay outside the immunity and
illustrates the point that bringing such a claim is not in itself an abuse of
process. While it is true that there is a power for the Crown to pay
compensation to the person wrongly convicted, there is no reason why c
public funds should be used to pay the accused compensation for loss caused
by the negligence of the lawyers who were paid to defend him.
On the other hand, in civil (including matrimonial) cases, it will seldom
be possible to say that an action for negligence against a legal adviser or
representative would bring the administration of justice into dispute.
Whether the original decision was right or wrong is usually a matter of
concern only to the parties and has no wider implications. There is no public
interest objection to a subsequent finding that, but for the negligence of his
lawyers, the losing party would have won. But here again there may be
exceptions. The action for negligence may be an abuse of process on the
ground that it is manifestly unfair to someone else. Take, for example, the
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Lord Hoffmann
2f. Conclusion
D
My Lords, I have said nothing about whether the immunity, if preserved,
would be contrary to article 6 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). The
question does not arise. Nor have I said anything about the distinction
between those acts of lawyers which are "intimately connected" with the
conduct of litigation and those which are not. The Court of Appeal, being
E
bound by Saif Ali v Sydney Mitchell & Co [1980] AC 198, struggled with
this distinction. Mr Sumption's submissions as to why they were wrong
served only to convince me that the distinction is very difficult to apply with
any degree of consistency. That is perhaps another reason why the immunity
should be altogether abolished. I would therefore dismiss the appeals.
LORD HOPE OF CRAIGHEAD My Lords, the events with which these
three appeals are concerned took place in 1991, when the parties on one side
of the case ("the clients") were all engaged in civil litigation for the purposes
of which they had appointed the other party to act as their solicitors.
Mr Simons, who is a building contractor, was in dispute with the owner of a
building about the work which he had carried out for the owner under a
building contract. The proceedings were settled on 19 August 1991, which
C was the day before the trial of his action was due to start. Mr Barratt was in
dispute with his wife after their marriage had broken down. Her claim for
ancillary relief was settled on 5 September 1991 when the judge approved a
minute of order lodged by his solicitors and directed that it should stand as
the court's order made by consent. Mrs Harris was also engaged in
matrimonial proceedings following the breakdown of her marriage. In her
case a consent order was made by the judge on 22. November 1991 following
advice which she received from counsel outside the court on the day of the
ancillary relief hearing.
In each case the clients are dissatisfied with the outcome of their litigation
and in particular with the terms of settlement. They have alleged that the
solicitors were negligent in regard to things which they did or omitted to do
708
Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hope of Craighead
outside the courtroom. The essence of the case made by Mr Simons against A
his solicitors is that they should have advised him at the outset that he should
settle on the terms which he was ultimately forced to accept after much
unnecessary delay and expenditure or that they should have prepared for
trial so that he could pursue his case with unimpaired prospects of success.
Mr Barratt's case is that his solicitors failed at any stage to obtain or advise
the obtaining of a valuation of the family home which was eventually sold _
for much less than it had been assumed to be worth when they were
negotiating the terms of settlement, that they lodged with the court a minute
of order which inaccurately recorded the valuation of the property and that
they failed to advise him that the settlement should provide for the parties to
receive percentage interests in the property rather than that his wife should
receive a guaranteed sum when it was sold. Mrs Harris alleges that her
solicitors failed to brief competent counsel, to inform themselves properly of C
the facts and take proper instructions prior to the settlement and that they
gave incorrect advice about the possibility of setting aside a consent order.
The solicitors in each case claim that they are immune from suit in regard to
the allegedly negligent conduct.
All three cases were listed and heard together in the Court of Appeal
[1999] 3 WLR 873, as was a fourth case with which your Lordships are not D
now concerned. At the outset of their judgment the Court of Appeal (Lord
Bingham of Cornhill CJ, Morritt and Waller LJJ) said that the following
questions arose, at p 881: to what extent and in what circumstances does a
lawyer's immunity from suit in relation to the allegedly negligent conduct of
a case in court protect him against claims for allegedly negligent acts and
omissions which take place out of court? Does a lawyer, if not otherwise
immune from a claim in negligence by a client, become so when the court ^
approves a consent order in any proceedings, but particularly in
matrimonial proceedings in relation to ancillary relief? Is it in such
circumstances an abuse of the process of the court to claim damages against
a lawyer for alleged negligence leading to the making of a consent order?
The primary sources on which the Court of Appeal drew as to the
advocate's immunity were the decisions of the House in Rondel v Worsley f
[1969] 1 AC 191 and SaifAli v Sydney Mitchell & Co [1980] AC 198. After
setting out four propositions which it derived from them, the court made
these observations, ante, p 625C-E:
"It may of course be that the House of Lords will hereafter choose to
review and modify the rulings given in these two leading cases, and it is
noteworthy that in the SaifAli case [1980] AC 198 LordDiplock, a t p 2Z3, Q
expressed regret that counsel for the plaintiff had not made a more radical
challenge to the authority of Rondel v Worsley [1969] 1 AC 191. We
understand further that the European Court of Human Rights may be
called upon to consider the compatibility of the decision in Rondel v
Worsley with the European Convention for the Protection of Human
Rights and Fundamental Freedoms (1953) (Cmd 8969). But we must
treat these cases as binding authority for the four propositions we have set
out. Those propositions do not, however, answer the first question posed
above, which relates to the outer limits of forensic immunity, beyond the
core immunity which protects an advocate against claims arising from the
conduct of a cause in court. More particularly, the issue arises (in all four
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Lord Hope of Craighead
Summary
I wish at the outset to summarise the main points with which I intend to
deal in order to explain the position which I would adopt on the question of
the immunity. I shall use the expression "the core immunity" to describe the
immunity which attaches to the advocate, when engaged in conduct
performed in court, from claims by his client for negligence. I am conscious
of the fact that, if the immunity is to continue, the scope of its application
712
Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hope of Craighead
may need to be defined more carefully in due course, (a) The sole basis for A
retaining the core immunity is the public interest in the administration of
justice, (b) The public interest in the administration of justice is at its most
compelling in the field of criminal justice, (c) The risks to the efficient
administration of our system of criminal justice which would result from the
removal of the core immunity greatly outweigh the benefits, (d) The
principle in Hunter v Chief Constable of the West Midlands Police [1982]
AC 529 which treats collateral challenge as an abuse of process is not a
satisfactory substitute in the field of criminal justice for the core immunity.
(e) The risks to the efficient administration of justice are significantly less in
the field of civil justice, so in that field the retention of the core immunity of
the advocate from claims by his client for negligence is no longer justified.
Background C
If, as I believe, your Lordships do not wish to go so far as to say that
Rondel v Worsley [1969] 1 AC 191 was wrongly decided, it is appropriate to
take note of some the events that have happened since then—and especially
since the date of the decision in the SaifAli case [1980] AC 198—which may
throw light on the view that ought now to be taken as to the justification for
the immunity on grounds of public policy. D
The question whether the core immunity was in the public interest
was considered by the 1979 Royal Commission on Legal Services. In its
final report the Royal Commission concluded (Cmnd 7648, vol 1, p 333,
para 24.6):
"It happens that we first considered this topic before the most recent
decision of the House of Lords"—the Saif AH case—"was made known. E
We considered that, on balance, it was in the public interest that there
should be immunity in respect of an advocate's work in court and reached
a provisional conclusion as to the proper extent of that immunity which
was close to that which has now been laid down. Accordingly we have no
recommendation to make in regard to the extent of immunity which
would go beyond the law as now stated."
Legislation consistent with this conclusion, and with the decision in the Saif
AH case, was introduced under the Supply of Goods and Services Act 1982.
Section 13 of that Act implies a term of reasonable skill and care into
contracts for the supply of a service where the supplier is acting in the course
of a business. But the Supply of Services (Exclusion of Implied Terms) Order
1982 (SI 1982 No 1771), made under section 12(4) of the Act, provides that
that section shall not apply to: "2 . . . (1) the services of an advocate in court C
or before any tribunal, inquiry or arbitrator and in carrying out preliminary
work directly affecting the conduct of the hearing."
When the Conservative government came to power in 1989 the practices
of the legal profession again came under close scrutiny. The aim was to
bring to an end restrictive practices, such as those relating to rights of
audience, that could no longer be justified. This resulted in the Courts and
Legal Services Act 1990. That Act was preceded in 1989 by both a Green
Paper "The Work and Organisation of the Legal Profession" (Cm 570) and
a White Paper entitled "Legal Services: A Framework for the Future"
(Cm 740) in which the view was expressed that the core immunity was
justified in the public interest. The Green Paper stated in paragraph 6.2:
713
[2002] 1 AC ArthurJS Hall & Co v Simons (HL(E))
Lord Hope of Craighead
A "The main reasons for this immunity are that the administration of
justice requires barristers and solicitors to be able to carry out their duty
to the court fearlessly and independently and that actions for negligence
against barristers and solicitors in respect of advocacy work would make
the re-trying of the original actions inevitable and so multiply litigation.
The Government accepts the cogency of these arguments and considers
„ that this immunity from actions in negligence should in the future extend
to all recognised advocates."
During the progress of the Bill attempts were made in both Houses to abolish
the immunity (Hansard (HL Debates), 5 February 1990, cols 570-578);
(HC Debates, Standing Committee D), 7 June 1990, cols 325-340), but
proposed amendments to that effect were withdrawn after debate. The Lord
c Chancellor said that the Government believed the immunity rule to be an
appropriate one, and he emphasised that it had "placed it in the forefront of
consultation right from the start" (Hansard (HL Debates), 5 February 1990,
col 576). In the result what is now section 62 of the 1990 Act, which
extended the immunity to a person who is not a barrister but is lawfully
providing legal services in any proceedings, was enacted against the
background of the existing rule, which it did not alter. A further
D
opportunity arose in Parliament to abolish the immunity when parts of the
Courts and Legal Services Act 1990 were amended by the Access to Justice
Act 1999. It was not suggested in either House that the existing immunity
was no longer in the public interest and should be abolished.
The fact that Parliament has not seen fit to abolish the core immunity does
not, of course, mean that your Lordships should feel inhibited from taking
£ that initiative. The position which Parliament has adopted is consistent with
the view that the question whether the immunity should be retained is pre-
eminently a matter for the judges. But the heart of the matter is whether the
immunity is in the public interest. It is true, as my noble and learned friend
Lord Steyn has pointed out, that a number of distinguished commentators
including Sir Sydney Kentridge QC and David Pannick QC have expressed
views to the effect that it cannot be justified. But it is notorious that views as
F
to what is in the public interest may vary widely from one person to another,
and that they are heavily dependent upon each person's background, focus
of attention and experience. The judicial task is to gather the evidence from
all the sources that are available and, having done so, to assess the weight of
that evidence.
For my part, I would be inclined to attach considerable weight to that fact
C that neither the 1979 Royal Commission nor the consultation exercise which
preceded the enactment of the Courts and Legal Services Act 1990 revealed
that there is widespread dissatisfaction among members of the public with
the core immunity. I would also be inclined, even now, to attach weight to
the observations of the judges in Rondel v Worsley [1969] 1 AC 191 and the
SaifAli case [1980] AC 189 and, more recently, in Giannarelli v Wraith, 165
CLR 543 in the High Court of Australia with particular reference to the
public interest in the efficient administration of criminal justice. Another
factor to which I would attach some importance is the marked lack of
litigation directed to this issue in this country. The list which is provided in
the Court of Appeal's judgment of the decided cases in which lawyers have
been held entitled to avail themselves of the protection afforded by the
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Lord Hope of Craighead
immunity contains only one case in which the complaint related to the A
conduct of the trial: Bateman v Owen White [1996] 1 PNLR 1 (failure to
object to inadmissible evidence). The present cases, as I mentioned above,
do not involve a challenge to the core immunity. They are concerned with
the limits of its application. These factors suggest to me that the arguments
for the abolition of the immunity are more finely balanced than some
commentators have suggested, and that the case for abolition requires to be
approached with caution and with careful regard to all the relevant factors.
A the private interest. But each of these immunities needs to be justified, and
this can be done only on grounds which are relevant to the public interest in
the efficient and impartial administration of justice.
This brings me to the two remaining arguments. In Giannarelli v Wraith,
at
P 555> Mason CJ said that, of the various public policy factors, they were
the only two which warranted serious examination.
The first of these two remaining arguments is the impact on the
administration of justice of allowing court decisions to become the subject of
collateral attack by means of actions raised against advocates by their clients
for negligence. It is generally recognised that it is undesirable that collateral
attacks of this kind should be permitted. The problem is that doubt will be
cast on the soundness of the original decision, which may have been affirmed
on appeal, if the later decision is in conflict with it. This problem is
C particularly acute in the field of criminal justice, as public confidence in the
administration of justice is likely to be shaken if a judge in a civil case were to
hold that a person whose conviction has been upheld on appeal would not
have been convicted but for his advocate's negligence. He would have a
remedy in damages but no remedy against the conviction. It is undesirable
that a civil action should be treated as an avenue of appeal outside the system
which Parliament has laid down for appeals in criminal cases. It is also
undesirable that the same issue should be litigated time and again, and there
is a strong public interest in the principle of finality.
On the other hand there are other ways of preventing challenges to
convictions by collateral means and of ensuring that, if convictions are to be
challenged, this must be done by means of an appeal to a criminal appeal
court. In Hunter v Chief Constable of the West Midlands Police [1982]
£ AC 5 2.9 it was held that it was an abuse of the process of the court for a party
to seek to litigate the same issue as that which had been the subject of a
criminal trial. The power of the court to strike out a civil action on the
ground that it is an abuse of process has not yet been recognised in Scotland.
But in Law Hospital NHS Trust v Lord Advocate, 1996 SC 301 it was held
that the Court of Session could not sit as a court of review over decisions of
the High Court of Justiciary as these two courts had exclusive jurisdiction in
regard to all matters falling within their own spheres. On this ground a civil
case which was brought in Scotland to challenge a criminal conviction
would be dismissed as incompetent.
There remains the argument based on the advocate's duty to the court or,
as it has been put, the issue of divided loyalty. But in order to appreciate the
force of this argument it is necessary to appreciate the extent of that duty and
C the extent to which the efficiency of our systems of criminal justice depends
on it. The advocate's duty to the court is not just that he must not mislead
the court, that he must ensure that the facts are presented fairly and that he
must draw the attention of the court to the relevant authorities even if they
are against him. It extends to the whole way in which the client's case is
presented, so that time is not wasted and the court is able to focus on the
issues as efficiently and economically as possible. He must refuse to put
questions demanded by his client which he considers unnecessary or
irrelevant, and he must refuse to take false points however much his client
may insist that he should do so. For him to do these things contrary to his
own independent judgement would be likely to impede and delay the
administration of justice.
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Lord Hope of Craighead
A I consider that the risk is as real today as it was in 1967 in this country and
it was in 1988 in Australia that, if advocates in criminal cases were to be
exposed to the risk of being held liable in negligence, the existence of that
risk would influence the exercise by them of their independent judgment in
order to avoid the possibility of being sued. The temptation, in order to
avoid that possibility, would be to pursue every conceivable point, good or
bad, in examination, cross-examination and in argument in meticulous
detail to ensure that no argument was left untouched and no stone was left
uncovered. The exercise of independent judgment would be subordinated to
the instincts of the litigant in person who insists on pursing every point and
putting every question without any regard to the interests of the court and to
the interests of the administration of justice generally. As for the objection
that to accord advocates an immunity on this ground which is not available
C to other professionals, the answer to it is as true today as it always was. The
exercise by other professionals of their duty to their clients or to their
patients may require them to face up to difficult decisions of a moral or
ethical nature. But they do not have to perform these duties in the
courtroom, where the exercise of an independent judgment by the advocate
as to what to do and what not to do is essential to the public interest in the
efficient administration of justice.
D
The impact on the administration of criminal justice
It may be said that recent reforms to the system of civil justice in England
and Wales have greatly reduced the risk of disruption to the administration
of justice by the taking of unnecessary points and the development of
unhelpful and time-wasting arguments by advocates. As my noble and
E learned friend, Lord Hoffmann, has pointed out, the new Civil Procedure
Rules have given the judges a battery of powers to keep the resources which
the court expends on a case proportionate to its value and importance. The
jurisdiction of the courts in England and Wales to make wasted costs orders
has been extended to barristers in both civil and criminal cases where costs
have been wasted by reason of any improper, unreasonable or negligent act
F or omission on their part: Courts and Legal Services Act 1990, sections 4,
i n and 112.
But the opportunities for judicial intervention in the management of cases
are significantly greater in civil cases than they are in criminal cases, where
the liberty of the subject is at issue and everything depends on the accused
having a fair trial. The system of pre-trial written pleading in civil cases in
which both sides are required by the rules to participate assists the process of
C preliminary case management. In a criminal case written pleadings are
largely absent. As the burden of proof throughout is on the prosecutor, very
little is required of the accused by way of notice of the case which he wishes
to present in his defence. It is much more difficult for the judge to determine
when the boundary is reached between that which is necessary for a fair
presentation of the defence and unnecessary questioning or time wasting.
The power of the judge to make a wasted costs order in a criminal case in
regard to the conduct of the case in court by the advocate will need to be
exercised with great care once the Human Rights Act 1998 comes into force.
It is one thing to penalise the advocate for wasting costs by failing to appear
for the trial or for negligent conduct which leads to days being wasted or to
the trial being aborted because he is dismissed by his client because of his
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Lord Hope of Craighead
conduct in the course of it. It is quite another to penalise him in this way for A
putting what the judge may regard as unnecessary questions or advancing
what he may regard as unnecessary arguments. It would be unwise to make
any assumptions at this stage as to its effectiveness as a means of reducing the
risk of time-wasting by advocates in criminal trials as a result of the loss of
immunity.
It is worth stressing in this connection the relevance to this issue of
the coming into force of the Human Rights Act 1998. Article 6 of the
Convention requires that the accused must receive a fair trial by an
independent and impartial tribunal. It also requires that he is entitled to
a fair and public hearing within a reasonable time. Both courts and
prosecutors will require to observe these requirements. The efficiency of the
criminal justice system will be severely tested, and the knock-on effects of
delays as one trial follows on another should not be underestimated. C
If one wishes to find some empirical evidence about the effects which the
coming into force of the Act will have on the conduct of criminal trials in
England and Wales it is to be found in Scotland, where compatibility with
the Convention rights has been required of all acts of the Scottish Executive,
including those of all those prosecuting under the authority of the Lord
Advocate since 10 May 1999: Scotland Act 1998, section 57(2.). It is no
exaggeration to say that the whole climate within which the criminal process
is being conducted has been transformed by the requirement of
compatibility, especially with regard to the provisions of article 6 of the
Convention. Any alleged incompatibility may be raised in any court or
tribunal as a devolution issue. Almost without exception the many
devolution issues which have been raised since the Scotland Act 1998 came
into force relate to the conduct of criminal proceedings. Many of them have £
been raised by way of preliminary objections, with the inevitable result that
delays have occurred in the conduct of criminal trials and substantial
additional burdens have been placed on the appeal court. It is likely that
similar consequences will be felt in England and Wales when the Act comes
into force here. It would be unwise to do anything that might increase this
burden unless this was clearly necessary in the public interest.
F
I would hold therefore that the core immunity pursues a legitimate aim in
the field of criminal justice, which is to secure the efficient administration of
justice in the criminal courts.
Assessment of risk
I have already described the risks to the administration of justice. As
against that there is the principle that wherever there is a wrong there should C
be a remedy. How significant is the risk that accused are being deprived of a
remedy by the existence of the immunity? Is the effect of the core immunity
proportionate to the aim sought to be achieved by it?
The courts have been careful to point out that advocacy is a difficult art
and that no advocate is to be regarded as having been negligent just because
he has made an error of judgment during the conduct of the case in court. It
may be said that the risk of their being subjected to findings of professional
negligence is small and that they are adequately protected by the fact that the
judges will not hesitate to strike out vexatious actions. But it seems to me
that the relevant conclusion to be drawn from these considerations is that
the quantity of unsatisfied claims is unlikely to be large.
719
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Lord Hope of Craighead
,4 Some guidance can also be obtained from the experience of the criminal
appeal courts in both England and Scotland following the decisions in
R v Clinton [1993] 1 WLR 1181 and Anderson v HM Advocate 1996
SC 29 which established the carefully defined circumstances in which these
courts will uphold an appeal based on allegations of negligence in the
conduct of the trial by the appellant's advocate. The point that the advocate
has been negligent is not infrequently taken but is rarely successful. It is also
worth noting, as I said when delivering the opinion of the court in
Anderson v HM Advocate, at p 45A, that difficult questions of professional
practice may arise where allegations of this kind are made against counsel or
a solicitor. My noble and learned friend, Lord Hobhouse of Woodborough,
has drawn attention to the way in which this problem is currently dealt with
in the Court of Appeal in England, and to the fact that to introduce into this
C scheme of criminal justice a principle that the defendant should be free to sue
his advocate in negligence will significantly alter the relationships involved
and make the achievement of justice more difficult. Experience in Scotland
since the decision in the Anderson case has been that the allegation that the
advocate has been negligent has been introduced in a considerable number
of cases, sometimes as a last resort after an attempt has been made to
introduce fresh evidence. The introduction of this ground causes delay in the
disposal of the appeal, as the conflict of interest to which it gives rise renders
a change in representation inevitable and the comments of those originally
instructed must be obtained. This is because it was held in the Anderson case
that, while it is essential that those against whom the allegations are made
should be given a fair opportunity to respond to them, fairness also dictates
that they should be under no obligation to do so at the stage when the matter
E is before the criminal appeal court. Exposure of the advocate to a liability in
damages as well as to the existing procedures for professional discipline
would be likely to increase the difficulty which the court has already
experienced in the conduct of this procedure, which tends to prolong appeals
to no good purpose and deprives it of the direct assistance of those originally
instructed in the case.
How is one to balance the possibility that a small number of defendants in
criminal trials are being denied a remedy against the benefits of maintaining
the immunity in the public interest? This involves an assessment of the risks
to which all those involved in criminal proceedings would be subjected if
advocates were to feel bound to protect themselves in the way I have
suggested. The time taken up by this activity would be likely to prolong
trials to the inconvenience of members of the public such as jurors and
C witnesses. The ordeal to which vulnerable witnesses, especially those in rape
and sexual abuse cases, are exposed could be extended. Judges in criminal
cases are well aware of the difficulty of controlling a line of questioning as
they are conscious of the fact that to intervene too frequently or too firmly
may provide a ground of appeal in the event of a conviction. The
combination of advocates in criminal trials erring on the side of caution in
their own interest and of judges erring on the side of caution in the interests
of a fair trial would be likely to impede rather than enhance the efficient
administration of criminal justice.
On the other side of the balance there are the various mechanisms that are
available in the field of criminal justice to prevent a miscarriage of justice if
the effect of the advocate's negligence was to deprive the client of his right to
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Lord Hope of Craighead
Comparative jurisprudence
I have already mentioned the cases from Australia and New Zealand in
which on grounds of public policy in those countries the decisions in
B Rondel v Worsley [1969] 1 AC 191 and the SaifAli case [1980] AC 198 have
been followed and applied. The question is whether any useful guidance can
be gained from the position in other jurisdictions, notably the United States,
other countries within Europe and Canada. My immediate response to it is
to note Lord Reid's observation in Rondel v Worsley, at p 228E, that he did
not know enough about conditions in any other country apart from England
and Scotland to express any opinion as to what public policy there may
C require.
In regard to the United States it is necessary to distinguish between
prosecuting and defence attorneys and between the position in federal law
and that in each state. It has long been recognised that judges and
prosecuting attorneys should be protected by immunity in relation to their
conduct of legal proceedings. In Imbler v Pachtman (1976) 424 US 409 the
D Supreme Court held that a state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosecution, including the presentation
of the state's case at a trial. On the other hand, in Ferri v Ackerman 444
US 193, the court held that the federal law of judicial immunity which
protected prosecutors and grand jurors did not extend to the defence
attorney, since he owed nothing more than a general duty to the public and
was required to serve the undivided interests of his client. But the court also
E held in that case that each state had the right to determine for itself the extent
and scope of any immunity acting on the basis of empirical data available to
the state. Counsel for the Bar Council have drawn your Lordships' attention
to the fact that some states have fashioned rules of immunity for the benefit
of public defenders in criminal cases in view of the disruption and costs
which would flow from the burden of defending civil claims, from which an
analogy may be drawn as to the considerations of public policy which favour
of immunity for advocates who provide services in this country under
criminal legal aid—bearing in mind the existence of the cab rank rule and the
constraints on legal aid fees in criminal cases. While Connecticut (Spring v
Constantino (1975) 362 A2d 871) and Pennsylvania (Reese v Danfortb
(1979) 406 A2(i 735) have not adopted such an immunity, the more recent
trend in other states has been to uphold legislation granting immunity to
C public defenders: eg Nevada (Morgano v Smith (1994) 879 P2d 735);
Delaware (Browne v Robb (1990) 583 A2d 949); Vermont (Bradshaw v
Joseph (1995) 666 kzd 1175); and New Mexico (Coyazo v State of New
Mexico (1995) 897 P2d 234).
The position in continental Europe is that advocates who undertake
criminal cases in those countries do not have the benefit of immunity. But
the role and duties of the advocate in those countries differ in significant
respects from those of advocates under our systems of criminal justice.
Many of the functions of the advocate under our systems of identifying and
investigating the facts are performed by the judge in those countries, who
does have immunity so long as he is exercising judicial functions in good
faith. In that respect there is no inconsistency with the availability of the
722
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Lord Hope of Craighead
core immunity under our systems to the defence and prosecution advocate. A
Beyond that, the much wider scope which is accorded to the judicial function
under the continental systems makes it very difficult to draw any useful
comparisons.
The position in Canada is quite different. There never was a rule of
immunity at common law in that country, and when the matter came up for
review in the light of Rondel v Worsley [1969] 1 AC 191 in Demarco v
Ungaro 95 DLR (3d) 385 the court declined to introduce such a rule. There
is no evidence that its absence has given rise to difficulty, perhaps because it
was made clear that the court would be slow to conclude that a decision
made by a lawyer in the conduct of the case was negligence rather than a
mere error of judgment.
My noble and learned friend, Lord Steyn, has said that he would regard
the Canadian experience as the most relevant but I do not see, with great c
respect, why that should be so. I should have thought that the Australian
and New Zealand experience was the more relevant, as their jurisprudence is
more closely modelled on that of our own jurisdictions and the way in which
law is practised there is closer to the way law is practised here than it is in
Canada. I also think that the distinction which has been drawn in the United
States by the Supreme Court between the position of the prosecutor and that
of the defence attorney is worth noting in our own jurisdiction. Whatever
may be said about the position of defence advocates, it is plainly essential to
the administration of justice that prosecuting advocates should continue to
be protected by the absolute immunity from action in respect of their
conduct of the prosecution case.
The conclusion which I would draw from the comparative material is
that, taken as a whole, it does not suggest that we would be falling into a £
serious error if we were to hold on grounds of public policy that the core
immunity against claims by their clients for negligence should continue to be
available to advocates in criminal cases.
arguments for and against the recognition of a duty of care owed by the A
Crown Prosecution Service to those it prosecutes in Elguzouli-Dafv Comr of
Police of the Metropolis [1995] QB 335. He said, at p 349:
"In my view, such a duty of care would tend to have an inhibiting effect
on the discharge by the CPS of its central function of prosecuting crime. It
would in some cases lead to a defensive approach by prosecutors to their
multifarious duties. It would introduce a risk that prosecutors would act B
so as to protect themselves from claims of negligence."
Of course, these observations were made in a quite different context, but the
fundamental point is the same. It is the risk that the removal of the
immunity would in some cases lead to a defensive approach by advocates
that I too take as my starting point. And it is the effect of this on our criminal
justice system both at first instance and in the appeal courts, which in its c
various respects I have tried to identify, that causes me such concern. I am
unable to agree that it would be in the public interest that the immunity
should be removed.
Civil cases
As I have already indicated in my discussion of the position as it affects ,-,
the system of criminal justice, the public policy considerations are
significantly different in civil cases. I do not think that this is to be attributed
simply to the changes which have taken place as a result of the introduction
of the Civil Procedure Rules. The whole atmosphere in a civil case is
different, as so many of the decisions as to what is to be done in the
courtroom are taken out of court when the pressures and constraints which
affect proceedings in court are absent and there is time to think and to assess E
the implications of what is being done or not done. It is also much easier for
the judge in a civil case to exercise control over the proceedings than it is for
a judge in a criminal trial. The risks to the administration of justice which
would flow from the removal of the immunity of the advocate against claims
by his client for negligence are far less obvious, and the continuation of the
immunity is for this reason that much more difficulty to justify. _.
A further reason for regarding the core immunity in the civil field as no
longer justifiable is the difficulty of finding a satisfactory way of defining the
limits of that immunity. The test which was identified by McCarthy P in
Rees v Sinclair [1974] 1 NZLR 180 is whether the particular work on which
the advocate was engaged was so intimately connected with the conduct of
the case in court that it can fairly be said to be a preliminary decision
affecting the way the case was to be conducted when it came to a hearing. C
But experience has shown that it is not an easy test to apply in regard to civil
proceedings, especially in regard to allegations made about negligence in
agreeing the terms of settlement: see, eg, Kelley v Corston [1998] QB 686. It
has not proved possible to devise a satisfactory alternative test for use in the
field of civil justice, bearing in mind the overriding need to ensure that the
protection given must not be any wider than is absolutely necessary.
I have come to the conclusion therefore that, while the core immunity
may still be said to have a legitimate aim in civil cases, its application in this
field is now vulnerable to attack on the ground that it is disproportionate. It
is a derogation from the right of access to the court which is no longer clearly
justifiable on the grounds of public interest. But here again I would stress the
725
[2002] 1 AC ArthurJ S Hall & Co v Simons (HL(E))
Lord Hope of Craighead
A point which I have already mentioned several times, that the immunity to
which I refer is the advocate's immunity against claims by his client for
negligence. I would retain the immunity of the advocate against claims for
negligence by third parties. For example, it is desirable that it should be
retained where the position of the advocate in a civil case is analogous to that
of the prosecutor—as where he is representing a professional body in
disciplinary proceedings which have been brought against one of its
members. The tort of malicious prosecution is a sufficient protection for the
individual if the proceedings have been brought against him without
reasonable and probable cause: see Martin v Watson [1996] AC 74; Taylor v
Director of the Serious Fraud Office [1999] 2. AC 177.
his advocate in the sheriff court for damages for loss and damage which he A
claimed to have sustained due to what he averred was their negligent
conduct of the proceedings on his behalf in a civil action and their disregard
of his instructions. His action was dismissed in the sheriff court on the
ground that his averments were irrelevant. He then appealed to the Court of
Session, where he appeared on his own behalf. It is plain from the judgment
that the court was satisfied that there was no substance in the allegations of
negligence. The real issue in the case was whether counsel was obliged to
obey every instruction of his client or whether, as the court held, the conduct
of the case was in the hands of counsel who was entitled to decide what was
to be done for the benefit and advantage of his client in the exercise of his
own judgment.
For present purposes it is unnecessary to dwell on those sentences in
which the Lord President was explaining the basis of the cab rank rule. As c
for the proposition in the opening sentence that an advocate on undertaking
the conduct of a civil case takes on himself an office, this terminology is no
longer in keeping with the modern view of his position, which—especially in
the light of the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465—places a greater emphasis on the duty owed by the advocate
to the client.
But it remains the case that duty which the advocate undertakes to his
client when he accepts the client's instructions is one in which both the court
and the public have an interest. While the advocate owes a duty to his client,
he is also under a duty to assist the administration of justice. The measure of
his duty to his client is that which applies in every case where a departure
from ordinary professional practice is alleged. His duty in the conduct of his
professional duties is to do that which an advocate of ordinary skill would £
have done if he had been acting with ordinary care. On the other hand his
duty to the court and to the public requires that he must be free, in the
conduct of his client's case at all times, to exercise his independent judgment
as to what is required to serve the interests of justice. He is not bound by the
wishes of his client in that respect, and the mere fact that he has declined to
do what his client wishes will not expose him to any kind of liability. In the
F
exercise of that judgment it is no longer enough for him to say that he has
acted in good faith. That rule is derived from the civil law relating to the
obligations arising from a contract of mandate which is gratuitous: see Stair,
Institutions of the Law of Scotland, 1.12.10 He must also exercise that
judgment with the care which an advocate of ordinary skill would take in the
circumstances. It cannot be stressed too strongly that a mere error of
judgment on his part will not expose him to liability for negligence. c
Concluding summary
I would hold that it is in the public interest that the core immunity of the
advocate against claims by his client for negligence should be retained in
criminal cases. I would however hold that it can no longer be justified in civil
cases. But I consider that this is a change in the law which should take effect
only from the date when your Lordships deliver the judgment in this case.
I also would dismiss these appeals. But I would do so for the same reasons as
those given by the Court of Appeal, and not on the ground that by 1991 it
was already clear that the core immunity did not extend to work done by
advocates in civil cases.
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LordHutton
A LORD HUTTON My Lords, two principal issues have been debated in the
three appeals before the House. One issue is whether immunity should
continue to be granted to an advocate against an action for negligence in
respect of his conduct of a case in the course of a trial and in respect of pre-
trial work intimately connected with the conduct of the case in court as held
in Rondel v Worsley [1969] 1 AC 191 and further considered in Saif Ali v
_ Sydney Mitchell & Co [1980] AC 198. The second issue is the scope of the
principle barring a collateral attack on an earlier judgment and the extent of
the doctrine stated in Hunter v Chief Constable of the West Midlands Police
[1982] AC 529. I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Hoffmann, and on the second issue,
viewed as a matter separate and distinct from the immunity given to an
advocate, I am in agreement with the views expressed by him, and I propose
C to confine my observations to the issue of the advocate's immunity.
The immunity recognised by the judgments of their Lordships in Rondel v
Worsley was grounded upon considerations of public policy. But the
primary requirement of public policy, as has been observed in many
authorities, is that a person who has sustained loss by the negligence of
another who owes him a duty of care should recover damages against the
D latter. This primary requirement was stated as follows by Lord Simon of
Glaisdale in Arenson v Arenson [1977] AC 405,419:
"There is a primary and anterior consideration of public policy, which
should be the starting point. This is that, where there is a duty to act with
care with regard to another person and there is a breach of such duty
causing damage to the other person, public policy in general demands
£ that such damage should be made good to the party to whom the duty is
owed by the person owing the duty. There may be a supervening and
secondary public policy which demands, nevertheless, immunity from
suit in the particular circumstances (see Lord Morris of Borth-y-Gest in
Sutcliffe v Thackrah [1974] AC 727, 752). But that the former public
policy is primary can be seen from the jealousy with which the law allows
any derogation from it."
When this House in Rondel v Worsley [1969] 1 AC 191 considered the
long established immunity of advocates after the rule could no longer be
supported on the ground that the advocate could not be sued because he had
no contract with his client, Lord Reid observed, at p 228c: "the issue appears
to me to be whether the abolition of the rule would probably be attended by
such disadvantage to the public interest as to make its retention clearly
justifiable." The House held that the public interest required the existing rule
of immunity to be retained. A number of reasons were given for this decision
which have been fully set out in the judgment of my noble and learned
friend, Lord Hoffmann, but I consider that the essential grounds for the
decision were those stated by Lord Wilberforce in Saif Ali v Sydney Mitchell
& Co [1980] AC 198, 212:
11
"mainly upon the ground that a barrister owes a duty to the court as
well as to his client and should not be inhibited, through fear of an action
by his client, from performing it; partly upon the undesirability of
relitigation as between barrister and client of what was litigated between
the client and his opponent."
728
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hutton
A impeded, and we would have moved away from the desired objective of
stricter and fairer law enforcement.' (Pearson v Reed (1935) 6 Cal App zd
277,187.)"
In the United States the federal law of immunity has not been extended to
defence counsel, although the laws of some states do grant immunity to
public defenders.
B I respectfully differ from the view of my noble and learned friend, Lord
Hoffmann, that the second strand of the argument that counsel, like a judge,
should be protected from vexatious actions is derived from the concept of
"divided loyalty" or from the concept that the conduct of litigation is "a
difficult art" In my opinion the argument flows from the recognition by the
law that those discharging important public duties in the administration of
,- justice should be protected from harassment by disgruntled persons who
have been tried before a criminal court. A judge is given protection against
an action for negligence although he has no divided loyalty, and he is not
given immunity because judging is a difficult art A judge is given immunity
because the law considers that it is in the public interest that he should not be
harassed by vexatious litigation. The law does not give immunity to a
surgeon who performs very difficult and important work for the benefit of
D
the public. But the reason for this difference is that the administration of
criminal justice gives rise to problems and difficulties of the nature described
by Lord Pearce in Rondel v Worsley [1969] 1 AC 191, 275 which differ from
those which arise in the practice of surgery. In my opinion counsel, like a
judge, is also entitled to protection in the performance of his public duty to
defend persons charged with criminal offences.
£ There is, of course, an obvious distinction between a judge and defence
counsel in that the judge owes a duty to the community to ensure that justice
is done in a trial which he conducts and he does not owe a special duty of
care to the defendant of the same nature as that of defence counsel who is
instructed to appear on behalf of the defendant to represent his interests.
There is also a similarity between defence counsel and a surgeon in that each
owes a duty of care to his particular client or patient. But in my opinion
F
these considerations are outweighed by the consideration that in
representing his client counsel is performing an important public duty which
is essential for the proper administration of justice.
It is now the position under the new Civil Procedure Rules that an action
which has no real prospect of success can be summarily dismissed more
easily than in the past. But this procedure does not give as effective
C protection against the harassment and vexation of blameless counsel as does
immunity; it does not enable the action against counsel to be stopped at
once, which is what Sir Baliol Brett MR thought requisite in Munster v
L a w f c u Q B D 588,605.
Therefore in my opinion the arguments against retaining immunity to
protect counsel in criminal proceedings against vexatious actions are
markedly weaker than those advanced against retaining immunity for the
conduct of civil proceedings. The matter can only be viewed as one of
perception, but my own perception would be that counsel who defend in
criminal proceedings are at greater risk of harassment from vexatious
actions than counsel who appear in civil proceedings because the
unpleasant, unreasonable and disreputable persons, to whom Lord Pearce
734
Arthur J S Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hutton
refers, are more likely to be defendants in criminal cases than parties in civil A
cases. Moreover, for this reason, I think that public perception would be
more disposed to accept that it is reasonable and not a ground for criticism
to protect counsel from actions by a person who has been charged with a
criminal offence as opposed to a person who is a party to a civil dispute. For
example, I think that few members of the public would have been critical of
Mr Worsley being granted immunity in order to protect him from being
vexed by the action alleging that he had been guilty of negligence for failing
to cross-examine to establish that the victim's injuries had been caused by
biting or by the use of the accused's hands and not with a knife. There will,
no doubt, be some cases in which there has been serious negligence by
counsel representing an accused person and where members of the public
would feel strongly that the accused person should be able to recover
damages, but for the reasons which I have given I consider that it is less C
harmful to the public interest that such a person should not recover than that
in other cases (which I think would be larger in number) blameless counsel
should be harassed by vexatious actions.
I consider that the continuation of the immunity of defence counsel
appearing in criminal cases would not constitute a breach of article 6(i) of
the European Convention for the Protection of Human Rights and
Fundamental Freedoms In Fayed v United Kingdom 18 EHRR 393, 429,
para 65, the European Court of Human Rights, quoting from Lithgow v
United Kingdom (1986) 8 EHRR 329, 393, para 194, stated the relevant
principles as follows:
"'(a) The right of access to the courts secured by article 6(1) is not
absolute but may be subject to limitations; these are permitted by
implication since the right of access "by its very nature calls for regulation
by the state, regulation which may vary in time and in place according to
the needs and resources of the community and of individuals." (Belgian
Linguistic Case (No 2) (1968) 1 EHRR 252, 281, para 5.) (b) In laying
down such regulation, the contracting states enjoy a certain margin of
appreciation, but the final decision as to observance of the Convention's
requirements rests with the court. It must be satisfied that the limitations F
applied do not restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right is impaired.
(c) Furthermore, a limitation will not be compatible with article 6(1) if it
does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the aim
sought to be achieved.' These principles reflect the process, inherent in the
court's task under the Convention, of striking a fair balance between the
demands of the general interest of the community and the requirements of
the protection of the individual's fundamental rights."
In my opinion the granting of immunity to defence counsel in criminal
proceedings is in conformity with these principles. The immunity is in
pursuit of the legitimate aim of advancing the administration of justice and
of protecting from vexation and harassment those who perform the public
duty of defending accused persons so that a criminal court will come to a just
decision. The immunity is also proportionate to that aim as it is no wider
than is strictly necessary to facilitate the proper administration of justice.
Article 6 would clearly not prohibit the domestic law from granting absolute
735
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Lord Hutton
A immunity to judges and, for the reasons which I have sought to state, defence
counsel is entitled to the same protection.
Therefore I am of opinion that the public interest requires that the
immunity of an advocate in respect of his conduct of a criminal case in court
and in respect of pre-trial work intimately connected with the conduct of the
case in court should continue, notwithstanding the difficulty of drawing a
fi clear line in respect of pre-trial work.
As the present appeals relate to claims for immunity in civil proceedings
I consider for the reasons which I have given that they should be dismissed.
Rondel v Worsley
11
Conflict of duty
The argument based upon owing a paramount duty to the court
(reinforced by section 42 of the 1999 Act) is of only limited impact and needs
further analysis. The relevant argument has to be based upon a conflict of
duty. If the duty owed by the advocate to the court is no more than a
duplication of his duty to his client, the existence of the duty presents no
problem for the advocate: he must simply do his duty. (I will have to come
739
[2002] 1 AC Arthur J S Hall & Co v Simons (HL(E))
Lord Hobhouse of Woodborough
A court regardless of the interests of the party who has called him or who is
asking him questions. This same scheme is spelled out in the new Civil
Procedure Rules regarding expert witnesses. An expert witness is in a special
position similar to that of the advocate. He is selected and paid by the party
instructing him. Part of his duties include advising the party instructing him.
If that advice is negligently given the expert, like the lawyer, is liable. But
once the expert becomes engaged on providing expert evidence for use in
court (CPR r 3 5.z; Stanton v Callaghan [2000] QB 75) his relationship to the
court becomes paramount as set out in the Civil Procedure Rules and he
enjoys the civil immunity attributable to that function.
If the advocate is to be treated differently, he alone of these participants in
the trial will be being held civilly liable for what he does and does not say in
court. This anomaly will require justification. The anomaly is not without
C further significance in that, if the advocate is to be held civilly liable for some
adverse outcome of the trial, he will have to bear the whole loss even though
other participants may have been equally, or more seriously, at fault. From
the point of view of the aggrieved party, if some fault can be found with the
performance of the advocate, he recovers in full from the lawyer; but, if only
other participants were at fault, he recovers nothing at all. It is necessary to
be very cautious before correcting one perceived anomaly by creating
another.
A further feature of the trial process is its finality (subject to appeal).
Some judgments establish a status in private or public law, others do no
more than establish a liability, or non-liability between one individual and
another. There are developed rules governing those who are bound by
judgments and under what circumstances they can be challenged. A civil
£ judgment itself creates rights which are distinct from, and in which may
merge, rights which existed before. It is thus important to consider the
relationship between the original trial which has given rise to the client's
complaint and the subsequent litigation between the client and his advocate.
Does the subsequent litigation challenge or affirm the outcome of the
previous trial? If it affirms it, no problem arises. If on the other hand, the
substance of the later litigation is to challenge the outcome of the previous
trial, then a question of finality can arise. It may be a challenge to the status
of the previous decision. This is a point to which I will have to return and is
a cardinal point of distinction between the criminal and civil process.
This in turn ties in with the consideration of the interest of the client
which the law of tort, if available, would serve to protect. The law of
negligence exists to provide monetary compensation for losses capable of
C being valued in monetary terms. Where the loss suffered by the client is
financial, the remedy is appropriate and effective. Where the complaint has
a different character, as for example that the client has been convicted of a
crime which he says he did not commit, an action in tort does not remedy
that grievance and can at most provide a solatium or some means of visiting
punishment upon the advocate alleged to have failed to secure an acquittal.
Such a complaint also has the necessary character of challenging the
conviction; it involves saying that an innocent man has been wrongly
convicted.
To permit actions which involve a re-examination of a trial that has
already occurred and a judgment already given inevitably must trespass on
the finality of that trial and judgment and the appeal procedure and involve
742
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord Hobhouse of Woodborough
A been in dispute at the criminal trial and had been decided against them
beyond reasonable doubt. It was a case of a collateral attack both on the
trial judge's finding and upon the verdict of the jury. The courts and your
Lordships' House held that the civil action was an abuse of process and
should be struck out. It was not however an action against their lawyers. If
they had had a bona fide complaint against their lawyers and had sued them,
e there would have been no reason why, subject to the immunity point and
presenting a reasonable case on breach of duty, their action should not have
gone ahead. The immunity point and the abuse of process point are distinct
and separate. They do not serve the same purpose.
The "collateral attack" point is a species (or "sub-set") of abuse of
process. There is no general rule preventing a party inviting a court to arrive
at a decision inconsistent with that arrived at in another case. The law of
estoppel per rem judicatem (and issue estoppel) define when a party is
entitled to do this. Generally there must be an identification of the parties in
the instant case with those in the previous case and there are exceptions. So
far as questions of law are concerned, absent a decision specifically binding
upon the relevant litigant, the doctrine of precedent governs when an earlier
legal decision may be challenged in a later case.
D A party is not in general bound by a previous decision unless he has been
a party or privy to it or has been expressly or implicitly covered by some
order for the marshalling of litigation (Ashmore v British Coal Corpn
[1990] 2. QB 338). This overlaps with the concept of vexation where the
same person is faced with successive actions making the same allegations
which have already been fully investigated in a previous case in which the
£ later claimant had an opportunity to take part. This reasoning does not
apply to an action against a lawyer alleging that he has mishandled a
previous case.
The case of Hunter is not apt or adequate to deal with cases brought by
aggrieved clients against advocates alleged to have been negligent.
Summary
My Lords, it is convenient to summarise the position thus far. (1) The
immunity of the advocate, if it is to be upheld, must be justified as necessary
in the public interest. (2) Rondel v Worsley [1969] 1 AC 191 represented the
assessment of where the public interest lay at the time it was decided in
1967. (3) Parliament has not sought to abolish the immunity and has
implicitly left it to the courts to consider whether the immunity should
survive. (4) Statutes have however not been silent upon relevant aspects of
the public interest and such guidance must be respected and followed.
(5) There is a balance to be struck. There are factors to be placed on either
side of the scales. (6) The most important factors are the assessment of the
role of the advocate in the court process and whether the interest of the client
would be appropriately protected by the tort remedy. (7) To substitute one
H
anomaly for another is not the right answer. (8) The abuse of process tool is
no more than a relevant part of the existing law and does not address the
same question as the immunity and does not provide a substitute for it.
(9) I consider that the balance of the public interest needs to be examined
separately for the civil and the criminal process.
744
ArthurJS Hall & Co v Simons (HL(E)) [2002] 1 AC
Lord HobhouseofWoodborough
A of his lawyer to provide the stipulated service. This not different in kind to a
client saying that the adverse tax treatment of a transaction was caused by
the negligent advice or drafting of the lawyer he employed. It will not be
cured by an appeal in the litigation.
In the preceding paragraphs I have simply referred to the client's lawyer
because what I have said is equally true of both the in-court advocate and
out-of-court litigator. It assists the doing of justice between plaintiff and
defendant in civil litigation that the client's rights against his lawyers of any
kind be preserved in full and the economic remedy is the right remedy. The
appeal process is not apt to provide the remedy.
One of the problems of any immunity is determining its boundaries. In
civil litigation, defining the boundaries of what constitutes advocacy and
would therefore qualify for the advocacy immunity is a serious problem not
C capable of satisfactory solution. The position has been made more difficult
by the Civil Procedure Rules. There is not a single moment of confrontation.
The exercise of advocacy extends over a series of processes of which the trial
is only one and the advocacy may be conducted as much in writing as orally.
Counsel for the appellants signally failed to provide a satisfactory definition
or categorisation of the functions to which, in civil procedure, the immunity
would attach. This is a telling argument against the recognition of an
immunity for advocates for civil procedure and has assisted to convince me
that the immunity is not necessary or appropriate. In civil litigation the
immunity is anomalous and the arguments in its favour, although they exist,
do not suffice to justify its continued existence.
A Criminal Appeal Act 1995, section 9. The duty of the advocates appearing
before the Court of Appeal are the same as at the trial, the achievement of a
just outcome. Their role is adversarial but their duty is not partisan.
The prosecuting advocate is not in practice subjected to any consideration
of personal liability for his conduct of the case. (Indeed, a general non-
liability in negligence of the Crown Prosecution Service has been upheld by
the Court of Appeal on policy grounds: Elguzouli-Daf v Comr of Police of
the Metropolis [1995] QB 3 3 5.) If he has to revisit what occurred at the trial,
it will be solely to provide further assistance to an appellate court or other
similarly placed body. The defending advocate will normally conduct any
appeal from a conviction (or sentence). He will do so in the same interest as
before, the interests of justice. If some question arises about his conduct of
the trial, this will probably make it inappropriate that he represent, or
C continue to represent, the defendant on the appeal. But he will remain under
a duty to assist the Court of Appeal. Normally the defendant will waive his
privilege and a full and frank written account of what occurred and the
reasons for it will be given by the advocate to the Court of Appeal. It will
readily be appreciated that to introduce into this scheme of criminal justice a
principle that the defendant should be free to sue his advocate for damages in
negligence will significantly alter the relationships involved and make more,
not less, difficult the achievement of justice within the criminal justice system
which is its purpose and is also the public interest.
My Lords, I make no apology for emphasising the position on criminal
appeals: the reason why the question of immunity arises is because of the
argument that a defendant who has been the victim of a miscarriage of
justice should have a remedy. On any view the primary remedy must be the
E criminal appeal. Therefore the primary inquiry must be how the abrogation
of the immunity would affect the effectiveness of the Court of Appeal in
rectifying such miscarriages. If its existence facilitates such rectification,
that is a very strong argument indeed in justification of the immunity.
(Contrast the position in the civil justice system where the position is the
reverse.) To displace this justification needs some significant counter-
argument. However, the evaluation of the other available arguments
support rather than undermine the justification for the immunity.
The legitimate interest of the citizen charged with a criminal offence is
that he should have a fair trial and only be convicted if his guilt has been
proved. It is not an economic interest. His interest like his potential liability
under the criminal law stems from his membership of the society to which he
belongs—his citizenship. If the charge against him has not been proved, he
C should be acquitted. If he has been wrongly convicted, his appeal against
conviction should be allowed. If he has been wrongly or excessively
sentenced, his punishment should be remitted or reduced. His only remedy
lies within the criminal justice system. This is appropriate. The civil courts
do not have any part to play in such matters. The relevance of what the
advocate does during the criminal trial is to the issues at that trial, not the
remoter economic consequences of the outcome of that trial.
Any involvement of the citizen in the criminal justice system may have
adverse consequences. There are adverse consequences for witnesses which
they in the public interest have to accept. There are certainly adverse
consequences for those suspected of or charged with criminal offences. They
may be held in custody. They normally have to attend their trial. They may
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Lord Hobhouse of Woodborough
A and the severity of the punishment resulting from the conviction; (b) the
conduct of the investigation and prosecution of the offence; and (c) any
other convictions of the person and any punishment resulting from them.
"(5) In this section 'reversed' shall be construed as referring to a
conviction having been quashed—(a) on an appeal out of time; or (b) on a
reference—(i) under the Criminal Appeal Act 1995 . . .
"(6) For the purposes of this section a person suffers punishment as a
result of a conviction when sentence is passed on him for the offence of
which he was convicted."
The statute distinguishes between those factors which come to light in
time to be considered on a normal first appeal to the Court of Appeal (no
compensation) and those which only come to light later (potential
compensation). Similarly it distinguishes between new (or newly
discovered) facts and errors of law or other non-factual matters. There is a
statutory policy, reflected also in the way in which the Home Secretary
exercises his discretion, which strikes a balance between those encounters
with the criminal justice system which the state should compensate and
those which it should not. The discretionary element is similar to that
contained in the criminal injuries compensation scheme. Those who have
O encounters with criminal activity are not all equally meritorious. The policy
of the legislature (and executive) is not to provide indiscriminate
compensation for erroneous convictions. To do so would be unacceptable in
a liberal democratic society. My Lords, we should respect that assessment of
the public interest and the needs of our society.
To provide a tort based liability to pay compensation in respect of the role
of only one of the participants in the criminal justice system would not only
destroy this balance but also produce a capricious distribution of
compensation between ultimately acquitted defendants. If a defendant
could say that a (I stress, a) cause of his conviction was the fault of his
advocate, he would recover full civil damages; if it was the fault of anyone
else involved in the trial, he could not recover anything unless he came
within the scope of section 133. From the defendant's point of view, it
F would be an arbitrary lottery and produce anomalies between one defendant
and another. As a matter of statutory policy, it would provide a route by
which the statutory limitations and safeguards built into section 133 could
be avoided. From the point of view of the administration of justice it would
expose the professional advocate to a risk of litigation which would
handicap him in performing his duty under the criminal justice system and
Q disinterestedly assisting, particularly at the appellate level, in the correction
of errors and remedying miscarriages of justice. To argue for a higher need
for a supposed redistributive justice to enable the defendant to recover civil
damages from his advocate, begs the question where the greater justice lies in
relation to criminal litigation as well as the question whether such a need is
indeed higher than the need to facilitate as far as possible the rectification of
miscarriages of justice within the criminal justice system.
H
Conclusion
In summary, there are essential differences between the civil and criminal
justice systems. In the civil justice system, the nature of the advocate's role in
the whole process, the nature of the subject matter, the legitimate interest of
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Lord Hobhouse of Woodborough
the client, the appropriateness of the tort remedy and the absence of clear or A
sufficient justification all militate against the recognition of an advocate
immunity. It is not necessary: in certain respects it is counterproductive.
In the criminal justice system, the position is the reverse of this. The
advocate's role, the purpose of the criminal process, the legitimate interest of
the client, the inappropriateness of the tort remedy, the fact that it would
handicap the achievement of justice, the fact that it would create anomalies
and conflict with the statutory policy for the payment of compensation for
miscarriages of justice, all demonstrate the justification for the immunity in
the public interest and, indeed, the interests of defendants as a class.
To put it at its lowest, strong arguments exist for making a distinction
between the civil and criminal justice systems and the respective need for
advocate immunity within them. Because these appeals did not raise this
question it was not specifically examined either orally or in written c
submissions before your Lordships or before any lower court. In my
judgment there would be significant consequences of what would be a
radically new approach to the administration of criminal justice and
(without prejudging the outcome) these potential consequences call for a
focused evaluation with the assistance of judgments of lower courts.
One of the consequences of the limited issues raised by these appeals has
been that your Lordships have not heard argument upon the definition of
what would be the scope of some limited immunity applying to criminal
advocacy only. The questions of definition are certainly not of the same
order as the problems which would exist for the civil advocacy immunity. It
is clear that the same difficulties of delimitation do not exist in the criminal
justice system as in the civil justice system. The distinction between civil and
criminal proceedings is already well established and used but a view would f
have to be taken about judicial review proceedings relating to the criminal
courts. As regards what comes under the heading of advocacy, there is a
clear point of focus being the trial at which the guilt of the defendant is
sought to be established. There are existing authorities (e g, Somasundaram v
M Julius Melchior & Co [1988] 1 WLR 1394 and Acton v Graham Pearce
& Co [1997] 3 All ER 909) which consider the scope of the immunity in
the criminal justice system. Unlike in the civil system, the questions of ^
delimitation are not such as to provide a reason for rejecting the immunity in
the criminal system. But it is right that any necessary refinement and
redefinition, whether by your Lordships or the Court of Appeal, should only
result from a properly informed and considered argument directed to those
points. The hearing of the present appeals has not been such an occasion.
C
The Hunter "solution"
Finally, I should refer to the suggestion that the Hunter principle [1982]
AC 529 (sic) provides an adequate answer to any problem arising from the
absence of an immunity in relation to criminal advocacy and therefore
renders the immunity unnecessary and disproportionate. As I have
explained already the Hunter argument does not address the relevant
question or relate to the justification for the immunity in the criminal justice
system. It is simply irrelevant and fails to understand the justification for the
immunity. The immunity exists and should be maintained because it serves
the public interest by making a significant contribution to the working of the
criminal justice system and not because it provides protection to lawyers.
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A The suggestion has been developed into the formulation of a rule that
would be a novel rule of public policy: that no civil action in negligence for
breach of professional duty can be brought against an advocate in respect of
the conviction of his client unless the conviction had first been set aside by an
appellate court. That this would be a novel rule cannot be disputed. It
would create an anomalous judge-made bar to a negligence action which
e does not at present exist. The relevant concepts for the law of negligence are
causation foreseeability and mitigation. It would need to be assimilated
with the statutory law governing the limitation of actions in a way that it is
probable that only Parliament should carry out (with or without the
assistance of the Law Commission).
Hunter v Chief Constable of the West Midlands Police was a wholly
exceptional case which had nothing to do with advocate liability. In the
c
Hunter case there was an abuse of the civil process by using it for the
improper purpose of mounting a collateral attack on an adverse criminal
decision. But a client suing his lawyer would argue that it was proper for
him to use the civil process for the purpose of recovering compensation from
his lawyer for breach of duty; indeed that is the only way in which he could
enforce the civil obligation to pay such compensation under the law of tort.
D Provided that the action was not wholly without merit and was bona fide
brought for the stated purpose and there was no immunity upon which the
lawyer was entitled to rely, the lawyer would have difficulty in sustaining an
argument that the action was an abuse of process. To challenge in later
litigation an earlier non-binding decision between different parties is not in
itself abusive, provided there are grounds for doing so. So far as questions of
law are concerned, the doctrine of precedent contemplates this. So far as
questions of fact are concerned, each court has to try and decide questions of
fact upon the evidence adduced before it. Judicial comity and common sense
take care of most of these situations in practice but the law does tolerate the
possibility of apparently inconsistent decisions. The element of vexation is
an aspect of abuse, the use of litigation for an improper purpose, trying to
have repeated bites at the same cherry. The objectionable element is not the
F risk of inconsistency.
The suggested new rule would give a status in the civil law to a criminal
conviction which at present it does not have. Under the rule in Hollington v
F Hewthorn & Co Ltd [1943] KB 587, the decision of a criminal court was
not evidence of the truth of the facts upon which it was based. This principle
applied to any decision of another court or tribunal which did not come
Q within the principles of res judicata as between the parties to the later action.
Parliament modified this rule in relation to criminal convictions but it has
not gone to the length proposed by the suggested new rule. Under section 11
of the Civil Evidence Act 1968 the person concerned is only to "be taken to
have committed that offence [of which he was convicted] unless the contrary
is proved". In other words, the conviction is not conclusive: cf section 13
relating to defamation actions. The relevant person (or anyone else with an
interest in doing so) is at liberty to prove that he did not commit the crime of
which he was convicted. The suggested new rule would have, either
expressly or by implication, to contradict this provision. If the existing law
is to be changed in this way, it would again be a matter for Parliament and
the Law Commission.
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The Hunter "solution" is not a solution and provides no argument for not A
continuing to recognise the existing advocate immunity in the criminal
justice system.
Accordingly, my Lords, I would dismiss the appeals. The claims disclose
causes of action against the appellants. The appellants are not entitled to an
immunity in respect of the claims made against them in these actions.
Appeals dismissed.