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)

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    Of course this is true. But, in principle, evidential difficulties have never been regarded as a reason for declining jurisdiction. The plaintiff has to prove that the lawyer's negligence caused him loss. The burden of proof is upon him. His case may have become so weak with the passage of time that it has to be struck out. But that is no reason for giving lawyers immunity from suit even in cases in which there is no difficulty about proving that their negligence caused loss to the plaintiff. This has to be done in cases which fall outside the immunity. For example, in Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563 a firm of solicitors were negligent in failing to issue a writ before the limitation period expired. Lloyd-Jacob J. had to decide in 1957 what would have been the plaintiff's chances of success in an action which should have been brought before 1946 to establish that her husband's death by electrocution in 1945 had been caused by the negligence of the West Kent Electricity Co. when it installed a control box in 1940. The Court of Appeal upheld his estimate of the value of her claim.

(b) Invidious judgments

    Then it is said that while it is difficult enough to decide what would have happened at a trial which did not in fact take place (as in Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563), it may become positively invidious to decide how a judge who actually heard the case would have reacted if the advocate had advanced a different argument or called different evidence. Some judges are more receptive to certain kinds of points than others. I think that this is an imaginary problem. Whatever may have been the foibles of the judge who heard the case, it cannot be assumed that he would have behaved irrationally. If he did, it would have been corrected on appeal. Obviously one has to take into account the findings that the judge made on the case as it was actually presented. For example, if he did not believe anything which the plaintiff said, it may be difficult to show that a different line of argument would have persuaded him to find in his favour. But I do not see how it is relevant for the purposes of the hypothetical exercise to have regard to the judge's idiosyncrasies. It must be assumed that he would have behaved judicially.

(c) Conflicting judgments

    The most substantial argument is that it may be contrary to the public interest for a court to retry a case which has been decided by another court. In Rondel v. Worsley [1969] 1 A.C. 191, 251 Lord Morris of Borth-y-Gest said that it would be:

    "undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation."

    In Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 222-223, Lord Diplock developed this point in a passage which should be quoted at length:

    "Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but upon principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial upon a contested issue by re-trial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction. Yet a re-trial of any issue decided against a barrister's client in favour of an adverse party in the action in respect of which allegations of negligent conduct by the barrister are made would be an indirect consequence of entertaining such an action.

    "The re-trial of the issue in the previous action, if it depended on oral evidence, would have to be undertaken de novo. This would involve calling anew after a lapse of time witnesses who had been called at the previous trial and eliciting their evidence before a different judge by questions in examination and cross-examination that were not the same as those that had been put to them at the previous trial. The circumstances in which the barrister had made decisions as to the way in which he would conduct the previous trial, and the material on which those decisions were based, could not be reproduced in the re-trial; and the initial question in the action for negligence: whether it has been established that the decision adverse to the client reached by the court in the previous trial was wrong, would become hopelessly entangled with the second question: whether it has been established that notwithstanding the differences in the circumstances in which the previous trial was conducted, it was the negligent act or omission of the barrister in the conduct of his client's case that caused the wrong decision by the court and not any other of those differences.

    "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."

    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 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.

20. Re-litigation in general.

    The law discourages relitigation of the same issues except by means of an appeal. The Latin maxims often quoted are nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. They are usually mentioned in tandem but it is important to notice that the policies they state are not quite the same. The first is concerned with the interests of the defendant: a person should not be troubled twice for the same reason. This policy has generated the rules which prevent relitigation when the parties are the same: autrefois acquit, res judicata and issue estoppel. The second policy is wider: it is concerned with the interests of the state. There is a general public interest in the same issue not being litigated over again. The second policy can be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the case within the spirit of the rules. I shall give two examples. In Reichel v. Magrath (1889) 14 App. Cas. 665 Mr. Reichel, the vicar of Sparsholt, resigned. The bishop of Oxford accepted his resignation. Then the vicar changed his mind. He brought an action against the Bishop and the Queen's College, Oxford, which had the right of presentation, for a declaration that his resignation had been void. The judge held that it had been valid and that the living was vacant. His decision was affirmed on appeal. The college appointed its Provost, Dr. Magrath, as the new vicar. Mr. Reichel refused to move out of the vicarage. Dr. Magrath brought an action for possession. Mr. Reichel pleaded in defence that his resignation had been void and he was still the vicar. The court struck out the defence as an "abuse of the process of the court." Although the parties were different, the case was within the spirit of the issue estoppel rule. Dr. Magrath was claiming through the college, which had been a party to the earlier litigation.

    In Ashmore v. British Coal Corporation [1990] 2 Q.B. 338 Ms Ashmore worked in the canteen of a coal mine in Nottingham. She complained to an industrial tribunal that she was paid less than men were being paid for similar work, contrary to the Equal Pay Act 1970. Over 1500 other women employees of the corporation made similar complaints. The industrial tribunal decided to hear 14 sample cases, 6 selected by the employees and 8 by the employers, to lay down general principles according to which the others could be decided. Ms Ashmore was aware of these arrangements. The tribunal decided all the cases adversely to the applicants on grounds which were equally applicable to Ms Ashmore's application. She then asked for a separate hearing of her case. The Court of Appeal decided that it should be struck out as an abuse of the process of the court. Ms Ashworth had not been a party to the sample proceedings but the sensible procedure there adopted would be undermined if all other members of the group were entitled to demand a separate hearing.

    The leading case on the application of the power to dismiss proceedings on this ground as an abuse of the process of the court is Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529. It concerned the trial of the six men convicted of an I.R.A. bombing in Birmingham in 1974. The defendants claimed that the police had beaten them to extract confessions. The trial judge held a voir dire and decided that the prosecution had proved beyond reasonable doubt that they had not been beaten. They were convicted. They applied for leave to appeal, but not on the ground that the confessions had been wrongly admitted. Leave to appeal was refused. In prison, the accused commenced proceedings against the policemen for assault, alleging the same beatings as had been alleged at the criminal trial. The House of Lords decided that it was an abuse of the process of the court to attempt to relitigate the same issue and that the actions should be struck out.

    Criminal proceedings are in my opinion in a special category because although they are technically litigation between the Crown and the defendant, the Crown prosecutes on behalf of society as a whole. In the United States, the prosecutor is designated "The People." So a conviction has some of the quality of a judgment in rem, which should be binding in favour of everyone. As Lord Diplock pointed out in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 223, this policy is reflected in section 13 of the Civil Evidence Act 1968, which provides that in an action for libel or slander, proof of the plaintiff's conviction is conclusive evidence that he committed the offence of which he was convicted.

    But one should not exaggerate this argument. The policy reasons which justify making the conviction conclusive evidence in a defamation action do not necessarily apply to other actions. I said that a conviction has some of the quality of a judgment in rem but, as a matter of law, it remains a judgment between the Crown and the accused and that is often the right way to consider it. The Court of Appeal is generally thought to have taken the technicalities of the matter much too far when it decided in Hollington v. F. Hewthorn & Co. Ltd. [1943] 1 K.B. 587 that in civil proceedings a conviction was res inter alios acta and no evidence whatever that the accused had committed the offence. But when Parliament reversed this rule in section 11(1) of the Civil Evidence Act 1968, it did not say that the conviction should be conclusive evidence, so that the issue could not be relitigated. It said only that the conviction was admissible evidence for proving that he committed the offence.

    Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529 shows that, superimposed upon the rules of issue estoppel and the Civil Evidence Act 1968, the courts have a power to strike out attempts to relitigate issues between different parties as an abuse of the process of the court. But the power is used only in cases in which justice and public policy demand it. Lord Diplock began his speech, at p. 536, by saying that the case concerned:

    "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

    I too would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute. It is true that Lord Diplock said later in his speech, at p. 541, that the abuse of process exemplified by the facts of the case was:

    "the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."

    But I do not think that he meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored. As I shall explain, I think it is possible to make some generalisations about criminal proceedings. But each case depends upon an application of the fundamental principles. I think that Ralph Gibson L.J. was right when, after quoting this passage, he said in Walpole v. Partridge & Wilson [1994] Q.B. 106, 116 that Hunter's case decides "not that the initiation of such proceedings is necessarily an abuse of process but that it may be."

21. The immunity and abuse of process by relitigation

    My Lords, the discussion in the last sections shows, first, that not all relitigation of the same issue will be manifestly unfair to a party or bring the administration of justice in to disrepute, and secondly, that when relitigation is for one or other of these reasons an abuse, the court has power to strike it out. This makes it very difficult to use the possibility of relitigation as a reason for giving lawyers immunity against all actions for negligence in the conduct of litigation, whether such proceedings would be an abuse of process or not. It is burning down the house to roast the pig; using a broad-spectrum remedy when a more specific remedy without side effects can handle the problem equally well.

    Cases in which actions for negligence have been brought against solicitors without immunity illustrate this point. Walpole v. Partridge & Wilson [1994] Q.B. 106 is one. The plaintiff was convicted before the magistrates of a statutory offence by preventing a veterinary officer from inspecting his pigs. His appeal to the Crown Court was dismissed. He issued proceedings against his solicitors for negligence, claiming that he had wanted to appeal by way of case stated and had arguable grounds for success on a point of law, but that they had negligently failed to lodge an appeal. The solicitors applied for the action to be struck out as an abuse of process on the ground that it would involve trying the question of whether the Crown Court had been wrong in law. In a closely reasoned and admirable judgment, Ralph Gibson L.J. decided that the claim would not be manifestly unfair to the solicitors or bring the administration of justice into disrepute. On the contrary, the denial of a remedy was more likely to do so.

    It is easy to imagine a similar case in which the alleged negligence would have been within the immunity: failure on the part of counsel, for example, to take an obvious point of law in the Crown Court. (Compare Atwell v. Michael Perry & Co [1998] 4 All E.R. 65.) In such a case the consequence of the immunity would be to deny a remedy for negligence although the collateral challenge argument had no application.

22. Summing up the arguments

    My Lords, I have now considered all the arguments relied upon in Rondel v. Worsley [1969] 1 A.C. 191. In the conditions of today, they no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity. The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way. I do not say that Rondel v. Worsley [1969] 1 A.C. 191 was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable and your Lordships must consider the arguments afresh.

23. Leave it to Parliament?

    Mr. Sumption and Mr. Scott said that even if your Lordships thought that the immunity could no longer be justified, you should not, in your judicial capacity, alter the law. It was something which Parliament had considered fairly recently, during the passage of the Courts and Legal Services Act 1990. A legislative decision had been taken not to abolish the immunity. For the judges now to do so would be to trespass upon a competence which had been assumed by the sovereign legislature.

    My Lords, I acknowledge the need for sensitivity on the part of the judges in entering into areas of law which are properly matters for democratic decision. Recently in Southwark London Borough Council v. Mills [1999] 3 W.L.R. 939, 944, I said:

    "in a field such as housing law, which is very much a matter for the allocation of resources in accordance with democratically determined priorities, the development of the common law should not get out of step with legislative policy."

    But, my Lords, there has been no statement of legislative policy on the immunity for lawyers. Section 62(1) of the Courts and Legal Services Act 1990, which I have already quoted, was careful not to endorse the immunity. It merely said that whatever immunity barristers had should also extend to solicitors. It is true that during the debate in committee in the House of Lords Lord Allen of Abbeydale moved an amendment to abolish the immunity which he afterwards withdrew (Hansard (H.L. Debates), 5 February1990, cols. 570-578). A similar amendment was moved but not voted on in Standing Committee D in the House of Commons (Hansard (H.C. Debates), 7 June 1990, cols. 325-340). It seems to me, however, that the government merely accepted what the judges had said in Rondel v. Worsley [1969] 1 A.C. 191 at face value. It may be that even as recently as10 years ago they were right to do so. A number of the changes to which I have referred earlier in this speech were a result of the Act of 1990 itself (such as wasted costs orders) and later developments in civil procedure and the public funding of litigation. So I do not think that your Lordships would be intervening in matters which should be left to Parliament. The judges created the immunity and the judges should say that the grounds for maintaining it no longer exist. Cessante ratione legis, cessat lex ipsa.

24. The future of the Hunter doctrine

    If there is to be no immunity, there will be more cases in which it becomes necessary to examine the limits of the Hunter doctrine of abuse of process. As I have said, the basic principles were clearly stated in that case. The House of Lords made it clear that the remedy should remain flexible and I cannot imagine that Parliament, if it legislated upon the subject of the immunity, would wish to give any more precise guidance as to how the abuse of process remedy should be used. It is peculiarly a matter of judicial application to the facts of each case. For the purposes of the present appeals, I therefore need say no more than that I agree with the Court of Appeal that the doctrine does not apply to any of them. If, as must for present purposes be assumed, the allegations made by the plaintiffs are correct, there seems to me nothing manifestly unfair to the solicitors in having to answer for them. Nor do I think it would bring the administration of justice into disrepute if the plaintiffs were allowed to claim that they would have got better terms if their solicitors had advised and acted for them with reasonable care. Although the two matrimonial cases involved approval of the settlement by a judge, that approval was given on the basis of the information put before him and, even more important, upon the basis that the parties, duly advised by solicitors, had agreed to the order. The judge was entitled to give weight to the fact that the parties themselves agreed that the order would make reasonable provision for both of them. The plaintiffs claim that if the judge had been given different information and if they had not been advised to agree to the order, they would have done better. That does not seem to me to involve any attack upon the judicial process.

    I do not think, however, that I can entirely agree with the Court of Appeal's view that the question of whether a collateral challenge is an abuse of process depends upon the "weight" to be given to the judgement and that there is a scale of weighting according to the amount of judicial input, with a consent order at one end and a judgment after hearing full evidence at the other. I agree that, as a practical matter, it is very difficult to prove that a case which was lost after a full hearing would have been won if it had been conducted differently. It may be easier to prove that, with better advice, a more favourable settlement would have been achieved. But this goes to the question of whether, in the words of C.P.R., r. 24.2, the plaintiff has "a real prospect of succeeding on the claim." The Hunter question, on the other hand, is whether allowing even a successful action to be brought, would be manifestly unfair or bring the administration of justice into disrepute. In my view, there will be cases (such as conviction on a plea of guilty) in which the Hunter principle may be engaged although there has been virtually no judicial input at all. The Court of Appeal accepted this. On the other hand, I can see no objection on grounds of public interest to a claim that a civil case was lost because of the negligence of the advocate, merely because the case went to full trial. In such a case the plaintiff accepts that the decision is res judicata and binding upon him. He claims however that if the right arguments had been used or evidence called, it would have been decided differently. This may be extremely hard to prove in terms of both negligence and causation, but I see no reason why, if the plaintiff has a real prospect of 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. 2) [1948] Ch. 221. An issue estoppel created by earlier litigation is binding subject to narrow exceptions: see Arnold v. National Westminster Bank Plc. [1991] 2 A.C. 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 Reg. v. Clinton [1993] 1 W.L.R. 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] A.C. 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 Act of 1995. I say it will ordinarily be an 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. Partridge & Wilson [1994] Q.B. 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 E.R. 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 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 case of a defendant who publishes a serious defamation which he attempts unsuccessfully to justify. Should he be able to sue his lawyers and claim that if the case had been conducted differently, the allegation would have been proved to be true? It seems to me unfair to the plaintiff in the defamation action that any court should be allowed to come to such a conclusion in proceedings to which he is not a party. On the other hand, I think it is equally unfair that he should have to join as a party and rebut the allegation for a second time. A man's reputation is not only a matter between him and the other party. It represents his relationship with the world. So it may be that in such circumstances, an action for negligence would be an abuse of the process of the court.

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