|Judgments - Arthur J.S Hall and Co. v. Simons (A.P.)|
Barratt v. Ansell and Others (Trading As Woolf Seddon (A Firm))
Harris v. Scholfield Roberts and Hill (Conjoined Appeals)
12. Vexatious claims in general
Before returning to Mr. Sumption's divided loyalty argument, I should say that in my opinion one should not exaggerate the bogey of vexatious claims. As I have said, every other profession has to put up with them. A practitioner who is properly insured can usually expect such claims to be handled by solicitors instructed by the underwriters. And there have been recent developments in the civil justice system designed to reduce the incidence of vexatious claims.
(a) Summary dismissal
The first is the new Civil Procedure Rules. Under the old rules, a defendant faced with what appeared to be a bad claim had a very heavy burden to satisfy the court that it was "frivolous and vexatious" and ought to be struck out. Now rule 24.2 provides that the court may give summary judgment in favour of a defendant if it considers that "the claimant has no real prospect of succeeding on the claim." The defendant may file written evidence in support of his application. In Swain v. Hillman The Times, 4 November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999 Lord Woolf M.R. encouraged judges to make use of this:
Of course the summary power has its limits. The court should not "conduct a mini-trial" when there are issues which should be considered at a full one. But it should enable the courts to deal summarily with truly vexatious proceedings. It should also be remembered that a lawyer defendant has the advantage that the power of summary dismissal is in the hands of lawyers. I do not suggest that they would be inclined to favour their own profession. The opposite is more likely to be the case. But they would understand what the case was about. They would be operating in their own field of expertise, not faced with the allegations of professional negligence in another discipline which they did not have the knowledge or experience to recognise as groundless. So in this respect lawyers faced with vexatious claims are in an advantageous position.
(b) Funding of litigation
The second important change has been made by the Access to Justice Act 1999, which came into force on 1 April 2000. Civil legal aid has been abolished and replaced by legal services funded by the Legal Services Commission as part of the Community Legal Service. The Act altogether excludes legal help in relation to "allegations of negligently caused injury, death or damage to property...:" see paragraph 1(a) of Schedule 2. Although an action for damages for loss caused by negligent advocacy or related services may not strictly fall within these categories, it is clear that it will not be easy to obtain legal representation for such actions. The Lord Chancellor has approved a Funding Code prepared by the Commission under section 8 of the Act which indicates that they would not come very high on the Community Legal Service's scale of priorities. Paragraph 5.7.1 of the code provides that if "the nature of the case is suitable for a [conditional fee agreement], and the client is likely to be able to avail himself or herself of a [conditional fee agreement], full representation will be refused." Actions for damages for the negligent conduct of litigation would seem, by analogy with paragraph 1(a) of Schedule 2, to be suitable for conditional fee agreements. Furthermore, under paragraph 5.7.3, full representation in a claim for damages will be refused unless certain cost benefit criteria are satisfied. For example, if the chances of success are good (60% - 80%), the likely damages must exceed the likely costs by a ratio of 2:1. If the prospects are less than 50%, representation will be refused.
It will therefore be much more difficult than it has been in the past to obtain legal help for negligence actions which have little prospect of success. The public funding of cases like Rondel v. Worsley  1 A.C. 191, the very paradigm of a hopeless claim by a disgruntled criminal defendant, is unlikely to be repeated. The alternative will be a conditional fee agreement, which would require satisfying another lawyer that the claim had sufficient prospects to make it worth his while to take it on at his own risk as to costs. Once again, as a lawyer, he will be able to recognise a vexatious claim when he sees one.
13. Back to the divided loyalty argument
After this digression, I return to Mr. Sumption's divided loyalty argument. I have no doubt that the advocate's duty to the court is extremely important in the English system of justice. The reasons are eloquently stated by their Lordships in Rondel v. Worsley  1 A.C. 191 and I do not think that the passage of more than 30 years has diminished their force. The substantial orality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced. The question is whether removing the immunity would have a significant adverse effect upon this state of affairs.
To assess the likelihood, I think that one should start by considering the incentives which advocates presently have to comply with their duty and those which might tempt them to ignore it. The first consideration is that most advocates are honest conscientious people who need no other incentive to comply with the ethics of their profession. Then there is the wish to enjoy a good reputation among one's peers and the judiciary. There can be few professions which operate in so bright a glare of publicity as that of the advocate. Everything is done in public before a discerning audience. Serious lapses seldom pass unnoticed. And in the background lie the disciplinary powers of the judges and the professional bodies. Whereas in 1967 it might have been said that the concept of the duty to the court was somewhat undefined and that much was left to the discretion of the advocate, who might interpret his obligations in the way which suited him best, today both branches of the profession are governed by detailed codes of conduct.
Looking at the other side of the coin, what pressures might induce the advocate to disregard his duty to the court in favour of pleasing the client? Perhaps the wish not to cause dissatisfaction which might make the client reluctant to pay. Or the wish to obtain more instructions from the same client. But among these pressures, I would not put high on the list the prospect of an action for negligence. It cannot possibly be negligent to act in 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, 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.
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.
14. Wasted costs orders
The judgment of the Court of Appeal in Ridehalgh v. Horsefield  Ch. 205, 226-231 contains a history of the wasted costs jurisdiction. Briefly stated, the court had jurisdiction before 1990 to order solicitors to pay costs wasted by their clients or other parties by reason of their misconduct, default or serious negligence. The jurisdiction did not apply to barristers. But section 4 of the Courts and Legal Services Act 1990 conferred power to make rules under which the court could order any legal representative to pay costs wasted by any party as a result of "any improper, unreasonable or negligent act or omission" on their part. Rules to this effect came into force on 1 October 1991: R.S.C., Ord. 62, r. 11. Sections 111 and 112 of the Act conferred similar powers on judges and magistrates in criminal proceedings.
For present purposes, the significance of this development is that it made advocates, both barristers and solicitors, liable for negligence in the conduct of litigation. It is true that it was a limited form of liability because it was restricted to the payment of wasted costs. It did not extend to any other loss which their negligence might have caused to their clients or other parties. But the costs of modern litigation can amount to a good deal of money. Furthermore, the possibility that the negligent conduct of litigation may lead to a wasted costs order being visited upon the advocate by summary process, 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  Ch. 205. 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:
The two professional bodies argued that any liability for wasted costs 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 Q.C. 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 Q.C., for the Bar Council, advanced, at pp. 217-218, the Rondel v. Worsley  1 A.C. 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 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 S.A. v. Effjohn 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 L.J. ended his judgment by saying:
15. Overseas experience
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  1 A.C. 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  1 A.C. 191. Then, in Demarco v. Ungaro (1979) 95 D.L.R. (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 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  1 A.C. 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.  A.C. 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 encourage lawyers to perform their duties to the court. He said, at p. 406:
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.
16. Divided loyalty and criminal proceedings
My noble and learned friend Lord Hope of Craighead considers that although in civil proceedings the possibility that the removal of the immunity may have an adverse effect upon the conduct of advocates is not strong enough to justify its retention, there is a sufficiently strong likelihood that it will have this effect in criminal cases. Counsel will be tempted "to pursue every conceivable point, good or bad . . . ." This must be an intuitive prediction, because there is in the nature of things no way of proving it now. I would not regard the current efflorescence of human rights points in Scottish criminal proceedings, notwithstanding the existence of the immunity, as any indication as to whether removal of the immunity would aggravate matters. This is an area in which cause and effect is not easy to establish. And of course, I acknowledge that my noble and learned friend's experience is far greater than mine. Indeed, it could hardly be less. But I am comforted by the fact that others with considerable experience of criminal proceedings do not have the same forebodings. In the end, I do not think that such intuitions are a sound basis upon which to proceed.
The argument for immunity in criminal proceedings depends heavily upon the image of litigants like Mr. Rondel, occupying their prison time with devising vexatious proceedings against their counsel which are then launched at public expense. But it must be remembered, first, that the abuse of process doctrine, which I shall discuss later, is likely to eliminate almost all such plaintiffs who have not succeeded in having their convictions set aside; and secondly, for the reasons which I have explained, that vexatious actions are less likely to be publicly funded and more likely to be struck out than they were in 1967. My noble and learned friend Lord Hutton chooses his example carefully when he says that "few members of the public would have been critical of Mr. Worsley being granted immunity." I quite agree that the case against him should have been struck out. But that is because it was hopeless. It would be easy to imagine other facts in which the public would react very badly to a grant of immunity.
My noble and learned friend Lord Hobhouse of Woodborough has a rather narrower point. He places emphasis not so much upon the way the advocate may conduct the criminal trial but upon the appellate process. He says that the advocate may be less inclined to assist the Court of Appeal with a full explanation of what went wrong at the trial if he thinks that a successful appeal would open the way to an action against him for negligence. In most appeals, no such assistance will be required. All the material will be on the record. But I accept that there are some cases in which it may be necessary to inquire of the advocate as to matters such as the instructions he received or why some witnesses were not called. Again it seems to me that the prediction of a change in the behaviour of the advocates is based upon intuition and even if the intuition is more soundly based, the class of cases involved is so narrow that it cannot justify a total immunity from actions for negligence in the conduct of all criminal cases.
17. The Cab Rank
This argument is that a barrister, who is obliged to accept any client, would be unfairly exposed to vexatious actions by clients whom any sensible lawyer with freedom of action would have refused to act for. It is, in the nature of things, intuitive, incapable of empirical verification, and I do not believe it has any real substance. The clients in question will presumably have already found solicitors to represent them without any professional compulsion. There may be many reasons why a barrister, free to choose, would prefer not to act for a client, such as the fact that he is particularly tiresome or disgusting, but I doubt whether fear of a vexatious action is a prominent consideration. In any case, for reasons which I have explained, I think that vexatious actions are an occupational hazard of professional 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 Ali v. Sydney Mitchell & Co.  A.C. 198, 221 dismissed the cab rank argument for much the same reasons.
18. The witness analogy
This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. So is the judge, counsel and the parties. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v. Vibart  1 Q.B. 528. The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say. And, as Fry L.J. explained in the passage which I have already cited from Munster v. Lamb 11 Q.B.D. 588, 607 this policy is regarded as so important that it requires not merely qualified privilege but absolute immunity.
The application of the analogy to the negligence of lawyers involves generalising the policy of the witness immunity and expressing it, as Lord Diplock did in Saif Ali v. Sydney Mitchell & Co.  A.C. 198, 222A, as a "general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice." Stated at this level of generality, it includes immunity for advocates from liability for anything that they may do. The rationale is said to be to "ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them."
My Lords, with all respect to Lord Diplock, it seems to me that to generalise the witness immunity in this way is illegitimate and dangerous. In the High Court of Australia in Mann v. O'Neill (1997) 71 A.L.J.R. 903, 912 McHugh J. spoke of the perils of extending the witness immunity by analogy. There is, he said, a temptation:
What is the rationale of the witness immunity? In Taylor v. Director of the Serious Fraud Office  2 A.C.177, 215C, I said that the policy of the immunity was "to encourage freedom of expression" and that was why it was limited to cases in which "the alleged statement constitutes the cause of action." My noble and learned friend Lord Hope of Craighead explained, at p. 219, that the immunity did not, for example, protect a witness against an action for malicious prosecution based on what he had said to the police because "it is the malicious abuse of process, not the making of the statement, which provides the cause of action." In other words, the immunity is based upon a perception that witnesses would otherwise be less inclined to come forward and tell the truth. They would behave differently in a way which was inimical to the interests of justice.
It is not sufficient, therefore, to explain any immunity relating to court proceedings by saying that the people involved should be free from "avoidable stress and tensions." That merely suggests that everyone would find litigation more agreeable if no awkward consequences could follow from anything which the participants did. It is another version of the vexation argument, which I have already rejected. It is necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. How would he otherwise behave differently in a way which was contrary to the public interest?
If one asks the question in this way, as I think one must, then it becomes apparent that Lord Diplock was inconsistent in rejecting the divided loyalty argument and the cab rank argument but accepting the witness analogy. It involves, as Lord Diplock himself would have put it, a petitio principii. The witness rule depends upon the proposition that without it, witnesses would be more reluctant to assist the court. To establish the analogy, it is necessary to point to some similar effect on the behaviour of lawyers. But Lord Diplock rejected the only two candidates put forward for likely changes in behaviour and offered no others. The proposition that absence of immunity would have an effect contrary to the public interest was assumed without argument.
Mr. Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v. Callaghan  1 Q.B. 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts' statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.
Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client.
19. Collateral attack
This argument also has a number of strands which need to be examined separately.
(a) Evidential difficulties
It may be very difficult to arrive at a conclusion about what would have happened in earlier proceedings if in some respect they had been conducted differently. In Smith v. Linskills  1 W.L.R. 763, 773 Sir Thomas Bingham M.R. spoke of: