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 am not persuaded that the principle which was applied in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529 provides the protection which is needed to serve the public interest in the field of criminal justice. I accept that all cases which can be treated as amounting to a collateral challenge to a subsisting conviction will be dismissed or struck out on this ground. But the pattern of the protection is incomplete. There are various events which may arise in the course of a criminal trial, such as things done or not done which may cause delay or continued detention in custody, which may operate to the client's disadvantage irrespective of the question whether he is in the end of the day acquitted or convicted or, if he is convicted, the conviction is set aside. Then there is the problem about what happens if the conviction is set aside on appeal. The appeal may have been taken on grounds other than that the advocate was negligent because the high standard which is needed to set aside a conviction on that ground cannot be satisfied. But once the conviction has been set aside the way will be clear for allegations which would not satisfy that standard to be made because the client's action can no longer be dismissed or struck out as an abuse of process. It should not be forgotten that the setting aside of the conviction does not of itself mean that the client no longer has a claim in damages: see Acton v. Graham Pearce & Co. [1997] 3 All E.R. 909 He may have been detained in custody, or lost his job or suffered in other ways for which he may wish to be compensated.

    A further problem about the Hunter case is that on its own facts it was directed to a different issue than that which will arise where the client seeks to recover damages from his advocate on the ground that his conduct of his defence was negligent. It was possible without much difficulty to say that the allegations which were made in that case were simply a repetition of allegations which had been made and disposed of in the course of the trial. But the position of the advocate is different. The question whether his conduct of the defence was negligent is something which arises outwith the trial process. There may be cases where it can be said that the question whether the conviction was attributable to the advocate's negligence is designed simply to cast doubt on the conviction. If so, it will fall within the category of a collateral attack. But I am not satisfied that that will be so in all cases. The Hunter principle, if it is applied too widely to deny the client a remedy in damages, seems to me to be vulnerable to attack on the ground that it is inconsistent with the client's fundamental right of access to a court for the determination of his civil rights. The justification for the core immunity rests upon factors which are directly related to the role of the advocate and his duties to the public and to the court in the interests of the administration of justice. The range of considerations which may lead to the conclusion, in the exercise of the court's discretion, that there is an abuse of process are much more loosely defined and are thus likely to be more difficult to justify if challenged on the ground that they are inconsistent with the client's rights under the Convention.

    I would therefore hold that the Hunter principle does not provide a sound basis for discarding the core immunity in criminal cases.

My Lords, the issue which divides us is whether it is in the public interest that advocates should no longer have the benefit of the core forensic immunity in criminal cases. As I see it, the answer to this question lies in an assessment of the risk of adverse consequences, which must then be compared with the benefits. The experience which I can bring to bear when assessing the risk is that which I gained when for seven years, as Lord Justice General, I was the senior judge in Scotland with duties and responsibilities in regard to the administration of the criminal justice system which extended well beyond the appeal court over which I was required to preside. I start from the proposition that the removal of the immunity would be bound to have some effect on the performance of their functions by advocates. The concern that I have in this respect was very well expressed by my noble and learned friend Lord Steyn when, as Steyn L.J, he was balancing the arguments for and against the recognition of a duty of care owed by the Crown Prosecution Service to those it prosecutes in Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] Q.B. 335. At p. 349C-D he said: "In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence." Of course, these observations were made in a quite different context, but the fundamental point is the same. It is the risk that the removal of the immunity would in some cases lead to a defensive approach by advocates that I too take as my starting point. And it is the effect of this on our criminal justice system both at first instance and in the appeal courts, which in its various respects I have tried to identify, that causes me such concern. I am unable to agree that it would be in the public interest that the immunity should be removed.

 

Civil cases

    As I have already indicated in my discussion of the position as it affects the system of criminal justice, the public policy considerations are significantly different in civil cases. I do not think that this is to be attributed simply to the changes which have taken place as a result of the introduction of the Civil Procedure Rules. The whole atmosphere in a civil case is different, as so many of the decisions as to what is to be done in the courtroom are taken out of court when the pressures and constraints which affect proceedings in court are absent and there is time to think and to assess the implications of what is being done or not done. It is also much easier for the judge in a civil case to exercise control over the proceedings than it is for a judge in a criminal trial. The risks to the administration of justice which would flow from the removal of the immunity of the advocate against claims by his client for negligence are far less obvious, and the continuation of the immunity is for this reason that much more difficulty to justify.

    A further reason for regarding the core immunity in the civil field as no longer justifiable is the difficulty of finding a satisfactory way of defining the limits of that immunity. The test which was identified by McCarthy P. in Rees v. Sinclair [1974] 1 N.Z.L.R. 180 is whether the particular work on which the advocate was engaged was so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way the case was to be conducted when it came to a hearing. But experience has shown that it is not an easy test to apply in regard to civil proceedings, especially in regard to allegations made about negligence in agreeing the terms of settlement: see, e.g., Kelley v. Corston [1998] Q.B. 686. It has not proved possible to devise a satisfactory alternative test for use in the field of civil justice, bearing in mind the overriding need to ensure that the protection given must not be any wider than is absolutely necessary.

    I have come to the conclusion therefore that, while the core immunity may still be said to have a legitimate aim in civil cases, its application in this field is now vulnerable to attack on the ground that it is disproportionate. It is a derogation from the right of access to the court which is no longer clearly justifiable on the grounds of public interest. But here again I would stress the point which I have already mentioned several times, that the immunity to which I refer is the advocate's immunity against claims by his client for negligence. I would retain the immunity of the advocate against claims for negligence by third parties. For example, it is desirable that it should be retained where the position of the advocate in a civil case is analogous to that of the prosecutor - as where he is representing a professional body in disciplinary proceedings which have been brought against one of its members. The tort of malicious prosecution is a sufficient protection for the individual if the proceedings have been brought against him without reasonable and probable cause: see Martin v. Watson [1996] 1 A.C. 74; Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177.

The advocate's duty

    I do not think that it would be appropriate to bring to an end the application of the core immunity to work done by advocates in civil cases without saying something about the duty which the advocate owes both to his client, to the public and to the court. A proper understanding of the nature and scope of these duties will help to distinguish between claims which are unmeritorious and those where the advocate may properly be held liable in damages for negligence.

    In Batchelor v. Pattison and Mackersy (1876) 3 R. 914, 918 Lord President Inglis, in a passage which was quoted by Lord Morris of Borth-y-gest in Rondel v. Worsley [1969] 1 A.C. 191, 241 and which laid down the foundations for the rules relating to the professional practice of advocates in Scotland, said:

    "An advocate in undertaking the conduct of a cause in this court enters into no contract with his client, but takes on himself an office in the performance of which he owes a duty, not to his client only, but also to the court, to the members of his own profession, and to the public. From this it follows that he is not at liberty to decline, except in very special circumstances, to act for any litigant who applies for his advice and aid, and that he is bound in any cause that comes into court to take the retainer of the party who first applies to him. It follows, also, that he cannot demand or recover by action any remuneration for his services, though in practice he receives honoraria in consideration of these services. Another result is, that while the client may get rid of his counsel whenever he pleases, and employ another, it is by no means easy for a counsel to get rid of his client. On the other hand, the nature of the advocate's office makes it clear that in the performance of his duty he must be entirely independent, and act according to his own discretion and judgment in the conduct of the cause for his client. His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced."

    There are a number of points in this passage which require either explanation or closer analysis when it is being applied to the position of the advocate today, and plainly it requires to be modified in its application to advocates such as the solicitor advocate who enter into contracts with their client. The case was one in which the client had sued both his solicitor and his advocate in the sheriff court for damages for loss and damage which he claimed to have sustained due to what he averred was their negligent conduct of the proceedings on his behalf in a civil action and their disregard of his instructions. His action was dismissed in the sheriff court on the ground that his averments were irrelevant. He then appealed to the Court of Session, where he appeared on his own behalf. It is plain from the judgment that the court was satisfied that there was no substance in the allegations of negligence. The real issue in the case was whether counsel was obliged to obey every instruction of his client or whether, as the court held, the conduct of the case was in the hands of counsel who was entitled to decide what was to be done for the benefit and advantage of his client in the exercise of his own judgment.

    For present purposes it is unnecessary to dwell on those sentences in which the Lord President was explaining the basis of the cab rank rule. As for the proposition in the opening sentence that an advocate on undertaking the conduct of a civil case takes on himself an office, this terminology is no longer in keeping with the modern view of his position, which - especially in the light of the decision in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 - places a greater emphasis on the duty owed by the advocate to the client.

    But it remains the case that duty which the advocate undertakes to his client when he accepts the client's instructions is one in which both the court and the public have an interest. While the advocate owes a duty to his client, he is also under a duty to assist the administration of justice. The measure of his duty to his client is that which applies in every case where a departure from ordinary professional practice is alleged. His duty in the conduct of his professional duties is to do that which an advocate of ordinary skill would have done if he had been acting with ordinary care. On the other hand his duty to the court and to the public requires that he must be free, in the conduct of his client's case at all times, to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability. In the exercise of that judgment it is no longer enough for him to say that he has acted in good faith. That rule is derived from the civil law relating to the obligations arising from a contract of mandate which is gratuitous: see Stair, Institutions of the Law of Scotland, 1, 12, 10. He must also exercise that judgment with the care which an advocate of ordinary skill would take in the circumstances. It cannot be stressed too strongly that a mere error of judgment on his part will not expose him to liability for negligence.

Concluding summary

    I would hold that it is in the public interest that the core immunity of the advocate against claims by his client for negligence should be retained in criminal cases. I would however hold that it can no longer be justified in civil cases. But I consider that this is a change in the law which should take effect only from the date when your Lordships deliver the judgment in this case. I also would dismiss these appeals. But I would do so for the same reasons as those given by the Court of Appeal, and not on the ground that by 1991 it was already clear that the core immunity did not extend to work done by advocates in civil cases.

LORD HUTTON

My Lords,

    Two principal issues have been debated in the three appeals before the House. One issue is whether immunity should continue to be granted to an advocate against an action for negligence in respect of his conduct of a case in the course of a trial and in respect of pre-trial work intimately connected with the conduct of the case in court as held in Rondel v. Worsley [1969] 1 A.C. 191 and further considered in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198. The second issue is the scope of the principle barring a collateral attack on an earlier judgment and the extent of the doctrine stated in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann and on the second issue, viewed as a matter separate and distinct from the immunity given to an advocate, I am in agreement with the views expressed by him, and I propose to confine my observations to the issue of the advocate's immunity.

    The immunity recognised by the judgments of their lordships in Rondel v. Worsley was grounded upon considerations of public policy. But the primary requirement of public policy, as has been observed in many authorities, is that a person who has sustained loss by the negligence of another who owes him a duty of care should recover damages against the latter. This primary requirement was stated as follows by Lord Simon of Glaisdale in Arenson v. Arenson [1977] A.C. 405, 419C:

    "There is a primary and anterior consideration of public policy, which should be the starting point. This is that, where there is a duty to act with care with regard to another person and there is a breach of such duty causing damage to the other person, public policy in general demands that such damage should be made good to the party to whom the duty is owed by the person owing the duty. There may be a supervening and secondary public policy which demands, nevertheless, immunity from suit in the particular circumstances (see Lord Morris of Borth-y-Gest in Sutcliffe v. Thackrah [1974] A.C. 727, 752). But that the former public policy is primary can be seen from the jealousy with which the law allows any derogation from it."

    When this House in Rondel v. Worsley considered the long established immunity of advocates after the rule could no longer be supported on the ground that the advocate could not be sued because he had no contract with his client, Lord Reid observed at [1969] 1 A.C. 191, 228C:

    "the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable."

The House held that the public interest required the existing rule of immunity to be retained. A number of reasons were given for this decision which have been fully set out in the judgment of my noble and learned friend Lord Hoffmann, but I consider that the essential grounds for the decision were those stated by Lord Wilberforce in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 212E:

    "mainly upon the ground that a barrister owes a duty to the court as well as to his client and should not be inhibited, through fear of an action by his client, from performing it; partly upon the undesirability of relitigation as between barrister and client of what was litigated between the client and his opponent."

    In Rondel v. Worsley, at p. 227C, Lord Reid observed that public policy is not immutable and that the rule of immunity required consideration in present day conditions in this country. Therefore, like all your lordships, I consider that it is right for this House to reconsider the immunity in the light of modern conditions and having regard to modern perceptions. Nevertheless, I do not think that conditions have changed so greatly in the thirty or more years which have passed since the judgments in Rondel v. Worsley and in the twenty years which have passed since the judgements in Saif Ali v. Sydney Mitchell & Co. that the views of the eminent judges in those cases can be completely discounted as relating to conditions and circumstances which were markedly different from those which exist today. I would be slow to dismiss the opinions of the members of the appellate committee in the former case that counsel could be subconsciously influenced to deviate from his duty to the court by the concern that he might be sued in negligence by his client - particularly as this view was also taken by Mason C.J. in the High Court of Australia in Giannarelli v. Wraith [1988] 165 C.L.R. 543, 557.

    However, notwithstanding the weight of the argument which can be advanced for preserving the immunity of advocates, I have come to the conclusion for two main reasons that in assessing the public interest the retention of the immunity in respect of civil proceedings is no longer clearly justifiable and that therefore the immunity should no longer be retained. The first reason relates to public perception. The principle is now clearly established that where a person relies on a member of a profession to give him advice or otherwise to exercise his professional skills on his behalf, the professional man should carry out his professional task with reasonable care and if he fails to do so and in consequence the person who engages him or consults him suffers loss, he should be able to recover damages. This principle accords with what members of society now expect and consider to be just and fair, and I think that it is difficult to expect that reasonable members of society would accept it as fair that the law should grant immunity to lawyers when they conduct a civil case negligently, when such immunity is not granted to other professional men, such as surgeons, who have to make difficult decisions in stressful conditions. I consider that there is much force in the observation of Krever J. in the Ontario High Court of Justice in Demarco v. Ungaro (1979) 95 D.L.R. (3d) 385, 405 in relation to immunity in civil proceedings:

    "Public policy and the public interest do not exist in a vacuum. They must be examined against the background of a host of sociological facts of the society concerned. Nor are they lawyers' values as opposed to the values shared by the rest of the community. In the light of recent developments in the law of professional negligence and the rising incidence of 'malpractice' actions against physicians (and especially surgeons who may be thought to be to physicians what barristers are to solicitors), I do not believe that enlightened, non-legally trained members of the community would agree with me if I were to hold that the public interest requires that litigation lawyers be immune from actions for negligence."

    The second reason which leads me to the conclusion that the immunity should no longer be retained in civil proceedings relates to the difficulty which arises in drawing a distinction between that part of the work of an advocate which is entitled to immunity and that part of his work which is not. The work which fell to be considered in Rondel v. Worsley was the advocate's conduct of the case in court, and the claim to immunity was upheld in relation to such work. But their lordships also expressed the opinion that some work done in preparation for a trial was also entitled to immunity. Referring to these expressions of opinion in Saif Ali v. Sydney Mitchell & Co. Lord Wilberforce said at, [1980] A.C. 198, 214D:

    "none of these expressions is precise, in the nature of things they could not be, but they show a consensus that what the immunity covers is not only litigation in court but some things which occur at an earlier stage, broadly classified as related to conduct and management of litigation."

In that latter case, where the alleged negligence by counsel occurred at an early stage before trial when counsel was instructed to settle a draft writ and statement of claim, the House was concerned to define more precisely the circumstance in which immunity did not apply to pre-trial work and it did so by adopting the test stated in the New Zealand decision of Rees v. Sinclair [1974] 1 N.Z.L.R. 180 and holding that the protection only applies where a particular work was so intimately connected with the conduct of the cause in court that it could fairly be said to be a preliminary decision affecting the way that the cause was to be conducted when it came to a hearing.

    However this test has proved difficult to apply in practice and has given rise to considerable uncertainty, and I am in respectful agreement with the observation of Kirby J. in the High Court of Australia in Boland v. Yates Property Corporation Plc. Ltd. (1999) 74 A.L.J.R. 209, 238, para. 137:

    "It is obviously desirable that a clear line establishing the limits of an advocate's immunity should be drawn. No bright line can be derived from the test borrowed in Giannarelli from that propounded by McCarthy P. in Rees v. Sinclair. That test is expressed in terms of the 'intimate connection' of the particular pre-trial work for which immunity is claimed with the conduct of the cause in court. The phrase is capable of being expanded to include a large proportion, perhaps most, of the advice given by many barristers and this demonstrates its potential overreach. This is evidenced in a number of cases since Giannarelli. Tradition may sustain those decisions. So may an understanding for the occasional mistakes of the particular profession involved. But the proper accountability of advocate advisers, the protection of the public and a non-discriminatory application of general principles of legal liability to the law's own profession suggest to my mind that the immunity has been pushed far beyond its essential ambit."

    Because of the difficulty of drawing a clear line to fix the boundaries of the immunity and because in civil proceedings the error which is alleged to constitute negligence, even though committed in court, will often be attributable to a decision taken, as Lord Diplock put it in Saif Ali, in the relative tranquillity of barristers' chambers and not in the hurly-burly of the trial, I consider that when this is linked to the public perception to which I have referred, the balance falls in favour of removing the immunity in civil matters.

    However I am of opinion that the public interest requires a different result when consideration is given to the immunity of counsel who defend persons charged with criminal offences. As I have stated, I am in respectful agreement with the opinion of my noble and learned friend Lord Hoffmann that the principle stated in Hunter should ordinarily prevent a convicted person from suing his counsel for negligence unless and until his conviction is quashed on appeal. Therefore the issue of immunity arises in relation to an action brought against defence counsel by a person who has been convicted of a criminal offence but whose conviction has subsequently been quashed or (because the Hunter principle would probably not apply) by a person like the plaintiff Rondel who does not claim that the alleged negligence has led to a wrongful conviction. In respect of actions brought by such persons I am of opinion, applying Lord Reid's test, that the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable.

    It has been recognised that the argument for retention of the immunity is stronger in criminal cases than in civil cases. In Rondel v. Worsley Lord Morris of Borth-y-Gest stated at [1969] 1 A.C. 191, 251G:

    "In my view, the public advantages [of the immunity] outweigh the disadvantages. They do so overwhelmingly in respect of criminal cases and considerably so in respect of civil cases."

In Boland v. Yates Property Corporation Pty. Ltd. 74 A.L.J.R. 209, 241, para. 148 Kirby J. stated:

    "Giannarelli concerned criminal proceedings. More stringent safeguards are adopted in criminal cases to prevent a miscarriage of justice. The highly developed rules and practices established to consider a suggestion of wrongful conviction may make it 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."

 
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