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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    I would suspect that, having regard to the power of the court to strike out actions which have no real prospect of success, the Hunter doctrine is unlikely in this context to be invoked very often. In my opinion, the first step in any application to strike out an action alleging negligence in the conduct of a previous action must be to ask whether it has a real prospect of success. Hopeless cases like Rondel v. Worsley [1969] 1 A.C. 191 are not a suitable vehicle for deciding important points of public policy.

25. Conclusion

    My Lords, I have said nothing about whether the immunity, if preserved, would be contrary to article 6 of the European Convention on Human Rights. 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 bound by Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 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 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 outside the courtroom. The essence of the case made by Mr. Simons against 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 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, as was a fourth case with which your Lordships are not now concerned. At the outset of their judgment the Court of Appeal (Lord Bingham C.J., Morritt and Waller L.JJ.) said that the following questions arose ([1999] 3 W.L.R. 873, 881D-E): 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 [1969] 1 A.C. 191 and Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198. After setting out four propositions which it derived from them, the court made these observations, at p. 882F-H:

    "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] A.C. 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 A.C. 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 . . . affords immunity to a lawyer who advises that a case be compromised, where the advice is accepted and the case is settled."

    Now that the three remaining appeals have reached this House the opportunity has been taken to undertake the more radical challenge to the authority of Rondel v. Worsley [1969] 1 A.C.191 which was not undertaken in the Saif Ali case [1980] A.C. 198. It is therefore open to your Lordships to dispose of them on grounds which were not available to the Court of Appeal.

    I wish to say, however, before turning to this wider and more general argument, that I consider that the grounds which the Court of Appeal gave for its decision in each case were entirely sound, sufficient and satisfactory and that I would have dismissed each of the appeals for the same reasons irrespective of the view that was taken about what the Court of Appeal has described as the core forensic immunity. In Mr. Simons's case this is because the acts and omissions of which he complains were done or not done, as the case may be, when the solicitors were acting otherwise than as advocates. Even if they had been acting in the relevant respects as advocates, none of the allegations against them satisfy the "intimate connection" test described by McCarthy P. in Rees v. Sinclair [1974] 1 N.Z.L.R. 180,187: see the Court of Appeal's judgment [1999] 3 W.L.R. 873, 908E-G. In Mr. Barratt's case the solicitors were not acting as advocates in relation to any alleged act of negligence, nor was their conduct said to be negligent in an area where the solicitors could say that they were acting where public policy as the rationale for immunity had any impact: p. 911F. In Mrs. Harris's case her solicitors were not acting in any way as advocates in the respects in which they were alleged to be negligent, nor is there any public policy rationale for which immunity in their case could be said to be justified: p. 920G-921A. In short, I would regard the argument in each case for extending the immunity to the solicitors when they were negotiating the terms of settlement as entirely without merit on the existing state of the authorities. On this view it is unnecessary to examine the fundamental question whether the core forensic immunity can now - or, to put the question more accurately if it is to provide a ground for our decision in these three cases, could in 1991 - still be justified on grounds of public policy. Nevertheless I agree that your Lordships should accept the opportunity for reviewing the fundamental question, for the following reasons.

    The first reason is that, as Lord Reid recognised in Rondel v. Worsley [1969] 1 A.C. 191, 227, public policy is not immutable. Lord Wilberforce was making the same point when he said in Roy v. Prior [1971] A.C. 470, 480F that immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. Doubts have once again arisen as to whether the existing rule is justified in present day conditions in this country, so it is proper to re-examine the whole matter now. The second reason is that there is now a greater appreciation of the importance which has to be attached in this context to the principles of human rights law, especially in view of the imminence of the coming into force of the Human Rights Act 1998. The period which has to elapse before that Act comes into force in October 2000 is now very short. I think that it is appropriate in this case to anticipate that event by taking account of the relevant provisions of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") and the jurisprudence of the European Court of Human Rights in our determination of the question whether, and if so to what extent, the core forensic immunity can still be justified. The third reason is that, while I would not regard it as necessary in order to dispose of these appeals for your Lordships to say that any change as regards the immunity rule should operate retrospectively, I consider it to be a legitimate exercise of your Lordships' judicial function to declare prospectively whether or not the immunity - which is a judge-made rule - is to be available in the future and, if so, in what circumstances.

    I believe that none of your Lordships would wish to go so far as to hold that Rondel v. Worsley [1969] 1 A.C. 191 was wrongly decided and that it should be overruled. The issue is whether the decision which was reached in that case can now be justified. It seems to me to be preferable that we should address this issue by examining the circumstances relevant to this issue as we find them today, and that we should express our decision so that it applies only to the future - not to a period in the past as well, the commencement of which would be very difficult at this stage to identify.

The basic principle

    Any immunity from suit is a derogation from a person's fundamental right of access to the court which has to be justified. This principle is found both in the common law and in the jurisprudence of the European Court of Human Rights. For the common law position it is sufficient to note the following observations. In Rondel v. Worsley [1969] 1 A.C. 191, 228 Lord Reid said:

    "Like so many questions which raise the public interest, a decision one way will cause hardships to individuals while a decision the other way will involve disadvantage to the public interest. On the one hand, if the existing rule of immunity continues there will be cases, rare though they may be, where a client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So 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." (Emphasis added)

     In Rees v. Sinclair [1974] 1 N.Z.L.R. 180, 187 McCarthy P. said that the protection of the immunity should not be given any wider application than is absolutely necessary in the interests of the administration of justice. In the Saif Ali case [1980] A.C. 198, 214H Lord Wilberforce said that in fixing the boundary of immunity from an action, which depends on public policy, account must be taken of the principle that a wrong should not be without a remedy. As Kirby J. said in Boland v. Yates Property Corporation Pty. Ltd. (1999) 74 A.L.J.R. 209, 236, 238, 239, paras.129, 137 and 140, an immunity from liability at law is a derogation from the normal accountability for wrong-doing which is an ordinary feature of the rule of law and fundamental civil rights.

    In the field of human rights law the individual's right of access to the court for the determination of his civil rights is to be found in article 6 (1) of the Convention. In Golder v. United Kingdom (1975) 1 E.H.R.R. 524, 535-536 paragraph 35 the European Court of Human Rights said:

    "The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6(1) must be read in the light of these principles."

In Fayed v. United Kingdom (1994) 18 E.H.R.R. 393, 429-430, para. 65, in a passage which was approved in Tinnelly Sons Ltd. v. United Kingdom (1998) 27 E.H.R.R. 249, 271, para. 74, the court said:

    "'(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 need and resources of the community and individuals." [Belgian Linguistic Case (No. 2) (1968) 1 E.H.R.R. 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 the observance of the Convention's requirements rests with the court. It must be satisfied that, the limitations 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.' [Lithgow v. United Kingdom (1986) 8 E.H.R.R. 329, 393 para. 194]

    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."

    It is clear from the passage which I have quoted from Lord Reid's speech in Rondel v. Worsley [1969] 1 A.C. 191, 228 that under the common law the presumption is strongly in favour of the right of the individual to a remedy. Any immunity from suit must therefore be clearly justifiable. In terms of human rights law it will only be justifiable if it is designed to pursue a legitimate aim and then only if it satisfies the test of proportionality. If the restriction which the immunity imposes on the right of the individual is disproportionate to the aim sought to be achieved on grounds of public policy it will be incompatible with the right secured to the individual by article 6(1) of the Convention. Although the common law and the human rights law tests are expressed in different language, they are both directed to the same essential point of principle that an immunity from suit is a derogation from a fundamental right which requires to be justified.

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 may need to be defined more carefully in due course.

a. The sole basis for 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] A.C. 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

    If, as I believe, your Lordships do not wish to go so far as to say that Rondel v. Worsley [1969] 1 A.C. 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 Saif Ali case [1980] A.C. 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.

    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. 24.7):

    "It happens that we first considered this topic before the most recent decision of the House of Lords [Saif Ali] was made known. 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 Ali 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 (S.I. 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 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 62:

    "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 (H.L. Debates), 5 February 1990, cols 570-578); (H.C. Debates, Standing Committee D), 7 June 1990, cols. 325-340), but proposed amendments to that effect were withdrawn after debate. The Lord 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 (H.L. Debates), 5 February 1990, col. 576). In the result what is now section 62 of the Act of 1990, 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 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 Q.C. and David Pannick Q.C. have expressed views to the effect that it cannot be justified. But it is notorious that views as 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 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 A.C. 191 and the Saif Ali case [1980] A.C. 189 and, more recently, in Giannarelli v. Wraith (1988) 165 C.L.R. 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 immunity contains only one case in which the complaint related to the conduct of the trial: Bateman v. Owen White [1996] 1 P.N.L.R. 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.

The basis for the core immunity

    My noble and learned friends Lord Steyn and Lord Hoffmann have analysed the arguments for the immunity under four headings: (1) the cab rank rule, (2) the analogy of the immunity of others who participate in court proceedings, (3) re-litigation or collateral challenge and (4) divided loyalty or the duty of the advocate to the court. I am content to accept this analysis of the various reasons which have been advanced to support the immunity on grounds of public policy. But I would approach each of them in a different way, by asking myself in each case what bearing each of these arguments has on the administration of our systems of criminal justice. I think that it is also worth bearing in mind that these arguments are not of equal weight. As my noble and learned friend Lord Steyn has said, the critical factor is the duty of the advocate to the court. He has used the word "barrister," but I think that we are all agreed that the position of advocates in Scotland and of solicitor advocates in all three jurisdictions is the same in this respect as that of barristers and I shall use the word "advocate" to embrace all of them.

    I do not wish to say much about the cab rank rule. Its value as a rule of professional conduct should not be underestimated, but its significance in daily practice is not great and the extending of the rights of audience of solicitor advocates who are not bound by the same rule has reduced such importance as it may once have had in the context of discussions about advocates' immunity. I do not think that there is any sound basis for thinking that removal of the immunity would have the effect of depriving those who were in need of the services of advocates in criminal cases of the prospect of obtaining their services. The independent bars have a long and honourable tradition in the field of criminal justice that no accused person who wishes the services of an advocate will be left without representation. This is a public duty which advocates perform without regard to such private considerations as personal gain or personal inconvenience.

    I think that there is a little more, but not much, to be said for the analogy with the immunity of others who participate in the proceedings which take place in court. At best it is only an analogy. It is a make-weight argument. Its significance lies in the fact that the other immunities exist because they also can be justified on grounds of public policy. They are illustrations of the fundamental point that it is in the public interest that those who are called upon to give evidence in court or who have to perform duties there should be enabled to do so without the risk of being sued for defamation or for negligence. As Mason C.J. said in Giannarelli v. Wraith, 165 C.L.R. 543, 557 the exception in favour of counsel is in conformity with the privilege which the law has always conferred on those engaged in the adminstration of justice, whether as judge, juror, witness, party, counsel or solicitor in respect of what they say in court. In an appropriate case the public interest will prevail over 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.

 
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