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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    This brings me to the two remaining arguments. In Giannarelli v. Wraith, at p. 555 Mason C.J. 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 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 [1982] A.C. 529 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 N.H.S. Trust v. Lord Advocate, 1996 S.C. 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 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.

    As Salmon L.J. explained in Rondel v. Worsley [1967] 1 Q.B. 443, 517-518:

    "The Bar has traditionally carried out these duties, and the confidence which the Bench is able to repose in the Bar fearlessly to do so is vital to the efficient and speedy administration of justice. Otherwise the high standard of our courts would be jeopardised. This is the real reason why public policy demands that there should be no risk of counsel being deflected from their duty by the fear of being harassed in the courts by every litigant or, criminal who has lost his case or been convicted."

This point was made with equal force by Lord Morris of Borth-y-Gest in the House of Lords in the same case: [1969] 1 A.C. 191, 251:

    "The quality of an advocate's work would suffer if, when deciding as a matter of discretion how best to conduct a case, he was made to feel that divergence from any expressed wish of the client might become the basis for a future suggestion that the success of the cause had thereby been frustrated. It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to the client. While, of course, any refusal to depart at the behest of the client from accepted standards of propriety and honest advocacy would not be held to be negligence, yet if non-success in an action might be blamed upon the advocate he would often be induced, as a matter of caution, to embark on a line of questions or to call a witness or witnesses, though his own personal unfettered judgment would have led him to consider such a course to be unwise."

He went on to say, at p. 251, that in his view in respect of criminal cases the public advantages of the immunity outweighed the disadvantages overwhelmingly. Lord Upjohn said, at p. 284A, that if the threat of an action was there counsel would be quite unable to give his whole impartial, unfettered and, above all, uninhibited consideration to the case, and that without that the administration of justice would be gravely hampered. Mason C.J. enlarged upon the same point in this passage of his judgment in Giannarelli v. Wraith 165 C.L.R. 543, 556:

    ". . . a barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case."

In Boland v. Yates Property Corporation Pty. Ltd. 74 A.L.J.R. 209, 241, para. 148, Kirby J. observed that it might be more appropriate to recognise further restrictions on the availability of proceedings against a practitioner in respect of the conduct of criminal rather than civil proceedings.

    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 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.

 

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 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 or omission on their part: Court and Legal Services Act 1990, sections 4, 111 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 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 conduct in the course of it. It is quite another to penalise him in this way for 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.

    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.

    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 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.

    Some guidance can also be obtained from the experience of the criminal appeal courts in both England and Scotland following the decisions in Reg. v. Clinton [1993] 1 W.L.R. 1181 and Anderson v. H.M. Advocate, 1996 S.C. 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. H.M. 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 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 Anderson 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 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 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 a fair trial. Compensation for miscarriages of justice is available out of public funds in the circumstances provided for by section 133 of the Criminal Justice Act 1988, and in other cases ex gratia payments may be made. The advocate is also subject to the disciplinary procedures of his professional body should his conduct in court give rise to legitimate grounds for complaint by his client or at the instance of the trial judge. Your Lordships have not been shown any evidence that might suggest that those who rely on the services of advocates in criminal cases are placed at a significant disadvantage by the existence of the core immunity. On the contrary the removal of the core immunity from advocates in criminal cases would expose them to a significant risk of being harassed by the threat of litigation at the instance of clients who may well be devious, vindictive and unscrupulous but for whom they have felt bound to act in order that they may receive a fair trial.

    For these reasons I do not think that the existence of the core immunity in the field of criminal justice is disproportionate to the aims that are sought to be achieved by it.

    The present cases demonstrate that there are grounds for concern that the boundaries of the core immunity are at risk of being enlarged, in civil cases, beyond the limits that require to be set to it in the public interest. But, having examined the careful summary of the decided cases since Rondel v. Worsley [1969] 1 A.C. 191 which is set out in paragraphs 29-31 of the Court of Appeal's judgment [1999] 3 W.L.R. 873, 892B- 897G, I have concluded that there is no evidence that the core immunity is exposed to the same risk in criminal cases. Furthermore the Court of Appeal were careful to say in paragraph 41 of their judgment, at p. 901E, that it was not open to them to question the existence of the core forensic immunity upheld in Rondel v. Worsley [1969] 1 A.C. 191, nor to doubt the limited extension recognised in the Saif Ali case [1980] A.C. 198. They recognised that it was plain from the tenor of the majority speeches in the Saif Ali case that any extension beyond the core immunity must be rigorously scrutinised and clearly justified by considerations of public policy; see also paragraph 48(6) at p. 904C-D where the same point is made. But there is no indication in the judgment that the core immunity itself was being called into question. While these observations can be taken to indicate that in their view there was a case for a re-examination of the immunity, I do not read them as amounting to an invitation to your Lordships to abolish entirely the core immunity. A critical re-examination need not go that far. A redefinition of the core immunity so that it is strictly confined within its proper limits may be a satisfactory alternative. Abolition should not be resorted to unless it is plain that it is clearly the only practicable alternative.

    It is also worth noting that in two recent cases in Scotland involving allegations of negligence against a solicitor and an advocate following the settlement of a civil case on terms which the client regarded as unsatisfactory the opportunity to plead the immunity was not taken: Crooks v. Lawford Kidd & Co., 1999 G.W.D. 14-651; Crooks v. Haddow, 2000 G.W.D. 10-367. I have not detected any signs, other than the arguments which were advanced by the defendants in the present cases, that the core immunity in criminal cases would be likely to be pressed beyond the limits which can properly be set for it on grounds of public policy. I am not aware of any cases in Scotland where the application of the core immunity in criminal cases has given rise to concern on this ground.

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 Rondel v. Worsley [1969] 1 A.C. 191 and the Saif Ali case [1980] A.C. 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 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 U.S. 409 the 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. Ackermann (1979) 444 U.S. 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 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 A.2d 871) and Pennsylvania (Reese v. Danforth (1979) 406 A.2d 735) have not adopted such an immunity, the more recent trend in other states has been to uphold legislation granting immunity to public defenders: e.g. Nevada (Morgano v. Smith (1994) 879 P.2d 735); Delaware (Browne v. Robb (1990) 583 A.2d 949); Vermont (Bradshaw v. Joseph (1995) 666 A.2d 1175); and New Mexico (Coyazo v. State of New Mexico (1995) 897 P.2d 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 core immunity under our systems to the defence and prosecution advocate. 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 A.C. 191 in Demarco v. Ungaro (1979) 95 D.L.R. (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 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.

The Hunter principle

    The Court of Appeal said [1999] 3 W.L.R. 873, 900B-C that it seemed to them that the first question to be asked on any application to strike out or dismiss a claim for damages against lawyers based on their allegedly negligent conduct of earlier proceedings was whether the claim represented an abusive collateral challenge to an earlier decision of the court, that if it did represent such a challenge it should be dismissed or struck out and that this principle applied to claims against lawyers whether or not they were acting as advocates. But it was suggested in the argument in this case that the principle was itself a sufficient protection against unmeritorious claims and that for this reason the core immunity can now be discarded as unnecessary.

 
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