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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    It is the duty of counsel who carry on a criminal practice to defend persons charged with criminal offences. The performance of this duty is of fundamental importance to the proper administration of the criminal law. Many defendants in criminal cases are highly unscrupulous and disreputable persons and I consider that some of them would be ready to sue their counsel if they knew that it was open to them to do so. I consider that the observations of Lord Pearce in Rondel v. Worsley at [1969] 1 A.C. 191, 275 are still valid today and apply with particular force to persons charged with criminal offences:

    "It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right. And it is a judge's (or jury's) solemn duty to find that out by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present) take on the less attractive task of advising and representing such persons however small their apparent merits. Is one, then, to compel counsel to advise or to defend or conduct an action for such a person who, as anybody can see, is wholly unreasonable, has a very poor case, will assuredly blame some one other than himself for his defeat and who will, if it be open to him, sue his counsel in order to ventilate his grievance by a second hearing, either issuing a writ immediately after his defeat or brooding over his wrongs until they grow greater with the passing years and then issuing the writ nearly six years later (as in the present case)?"

    On the occasions when a conviction is quashed on appeal, there will often be no valid ground for alleging that the conduct of defence counsel amounted to negligence. If an error has been made in the course of the trial it may have been made by the trial judge in his ruling on a point of law or on the admissibility of evidence or in his summing up to the jury. In such circumstances I consider that it would be contrary to the public interest to remove the existing immunity from the advocate (including the solicitor advocate) of the defendant whose conviction has been quashed. In relation to the advocate in a criminal case I consider that the argument that he should not be vexed by an action for negligence is a strong one and that the countervailing arguments which I think, on balance, prevail in respect of an action for the negligent conduct of civil proceedings, do not prevail where the allegation relates to the conduct of a criminal trial.

There is no suggestion that the clearly established immunity of a judge in respect of an action for negligence brought against him for his conduct of a trial, whether criminal or civil, should be abrogated; that rule is essential for the proper administration of justice and immunity against action is expressly given to the judges of the European Court of Justice.

    The argument that the public interest requires that counsel appearing in a criminal trial, like a judge, should not be vexed by unmeritorious actions for negligence (even though this necessarily means that meritorious claims, which I think would be relatively few, would be struck out) consists, in my opinion, of two strands and not one. One strand is that a judge or counsel must be protected because otherwise he may be consciously or subconsciously influenced to deviate from his duty by fear of being sued by a litigant. But a second strand is that it is not right that a person performing an important public duty by taking part in a trial should be vexed by an unmeritorious action and that such an action should be summarily struck out. In the authorities which discuss this matter emphasis is placed on the first strand, but I think it is clear that the authorities also recognise the second strand. The first strand is referred to in the judgments in Munster v. Lamb (1883) 11 Q.B.D. 588 but I think that the second strand is implicit in the judgment of Brett M.R., at p. 604:

    "If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct."

See also in the judgment of Fry L.J., at p. 607:

    "It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.

In Sutcliffe v. Thrackrah [1974] A.C. 727, 736B Lord Reid, when considering the judicial functions of arbitrators, refers specifically to the two strands:

    "But a party against whom a decision has been given that is generally thought to be wrong may often think that it has been given negligently, and I think that the immunity of arbitrators from liability for negligence must be based on the belief—probably well founded—that without such immunity arbitrators would be harassed by actions which would have very little chance of success. And it may also have been thought that an arbitrator might be influenced by the thought that he was more likely to be sued if his decision went one way than if it went the other way, or that in some way the immunity put him in a more independent position to reach the decision which he thought right."

    I think that in In re McC. (A Minor) [1985] A.C. 528, 541A Lord Bridge of Harwich had in mind the second strand when he said:

    "If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction."

The American Supreme Court has also recognised the two strands in relation to judges and prosecutors. In Imbler v. Pachtman 424 U.S. 409; 422-424 Powell J. states:

    "The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. One court expressed both considerations as follows:

    'The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case . . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterise the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.' [Pearson v. Reed (1935) 6 Cal. App. 2d 277, 287]"

    In the United States the federal law of immunity has not been extended to defence counsel, although the laws of some states do grant immunity to public defenders.

    I respectfully differ from the view of my noble and learned friend Lord Hoffmann that the second strand of the argument that counsel, like a judge, should be protected from vexatious actions is derived from the concept of "divided loyalty" or from the concept that the conduct of litigation is "a difficult art." In my opinion the argument flows from the recognition by the law that those discharging important public duties in the administration of justice should be protected from harassment by disgruntled persons who have been tried before a criminal court. A judge is given protection against an action for negligence although he has no divided loyalty, and he is not given immunity because judging is a difficult art. A judge is given immunity because the law considers that it is in the public interest that he should not be harassed by vexatious litigation. The law does not give immunity to a surgeon who performs very difficult and important work for the benefit of the public. But the reason for this difference is that the administration of criminal justice gives rise to problems and difficulties of the nature described by Lord Pearce in Rondel v. Worsley at [1969] 1 A.C. 191, 275 which differ from those which arise in the practice of surgery. In my opinion counsel, like a judge, is also entitled to protection in the performance of his public duty to defend persons charged with criminal offences.

    There is, of course, an obvious distinction between a judge and defence counsel in that the judge owes a duty to the community to ensure that justice is done in a trial which he conducts and he does not owe a special duty of care to the defendant of the same nature as that of defence counsel who is instructed to appear on behalf of the defendant to represent his interests. There is also a similarity between defence counsel and a surgeon in that each owes a duty of care to his particular client or patient. But in my opinion these considerations are outweighed by the consideration that in representing his client counsel is performing an important public duty which is essential for the proper administration of justice.

    It is now the position under the new Civil Procedure Rules that an action which has no real prospect of success can be summarily dismissed more easily than in the past. But this procedure does not give as effective protection against the harassment and vexation of blameless counsel as does immunity; it does not enable the action against counsel to be stopped at once, which is what Brett M.R. thought requisite in Munster v. Lamb at, 11 Q.B.D. 588, 605.

    Therefore in my opinion the arguments against retaining immunity to protect counsel in criminal proceedings against vexatious actions are markedly weaker than those advanced against retaining immunity for the conduct of civil proceedings. The matter can only be viewed as one of perception, but my own perception would be that counsel who defend in criminal proceedings are at greater risk of harassment from vexatious actions than counsel who appear in civil proceedings because the unpleasant, unreasonable and disreputable persons, to whom Lord Pearce refers, are more likely to be defendants in criminal cases than parties in civil cases. Moreover, for this reason, I think that public perception would be more disposed to accept that it is reasonable and not a ground for criticism to protect counsel from actions by a person who has been charged with a criminal offence as opposed to a person who is a party to a civil dispute. For example, I think that few members of the public would have been critical of Mr. Worsley being granted immunity in order to protect him from being vexed by the action alleging that he had been guilty of negligence for failing to cross-examine to establish that the victim's injuries had been caused by biting or by the use of the accused's hands and not with a knife. There will, no doubt, be some cases in which there has been serious negligence by counsel representing an accused person and where members of the public would feel strongly that the accused person should be able to recover damages, but for the reasons which I have given I consider that it is less harmful to the public interest that such a person should not recover than that in other cases (which I think would be larger in number) blameless counsel should be harassed by vexatious actions.

    I consider that the continuation of the immunity of defence counsel appearing in criminal cases would not constitute a breach of article 6(1) of the European Convention on Human Rights. In Fayed v. United Kingdom (1994) 18 E.H.R.R. 393, 429, para. 65, the European Court of Human Rights, quoting from Lithgow v. United Kingdom (1986) 8 E.H.R.R. 329, 393, para. 194 (stated the relevant principles as follows:

    "'(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 needs and resources of the community and of 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 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.'

    "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."

    In my opinion the granting of immunity to defence counsel in criminal proceedings is in conformity with these principles. The immunity is in pursuit of the legitimate aim of advancing the administration of justice and of protecting from vexation and harassment those who perform the public duty of defending accused persons so that a criminal court will come to a just decision. The immunity is also proportionate to that aim as it is no wider than is strictly necessary to facilitate the proper administration of justice. Article 6 would clearly not prohibit the domestic law from granting absolute immunity to judges and, for the reasons which I have sought to state, defence counsel is entitled to the same protection.

    Therefore I am of opinion that the public interest requires that the immunity of an advocate in respect of his conduct of a criminal case in court and in respect of pre-trial work intimately connected with the conduct of the case in court should continue, notwithstanding the difficulty of drawing a clear line in respect of pre-trial work.

    As the present appeals relate to claims for immunity in civil proceedings I consider for the reasons which I have given that they should be dismissed.

    

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

The Decision necessary for these Appeals:

    All of your Lordships are in favour of dismissing the appeals; the solicitors are not entitled to the immunity which they claim in the present cases. Your Lordships agree that on any view the immunity claimed in these cases falls outside the recognised immunity afforded to advocates. The Court of Appeal arrived at the right conclusion. Further, all your Lordships would be prepared to arrive at the same conclusion on the basis that there is no longer an adequate justification for continuing to recognise a general immunity for advocates engaged in civil litigation.

    But that is the limit of the unanimity. Some of your Lordships would be prepared to declare that the immunity should also no longer be recognised for advocates engaged in criminal litigation. Other of your Lordships, among whom I number myself, would not be prepared to take that step on the present appeals. These cases, unlike Rondel v. Worsley [1969] 1 AC 191 (but like Saif Ali v. Sydney Mitchell & Co. [1980] AC 198), do not concern criminal litigation and your Lordships have not heard any argument upon the distinctions that might, still less, should, be made between civil and criminal litigation beyond the generalised discussion arising from the case of Hunter v. Chief Constable of the West Midlands Police [1982] AC 529. That there is room for a difference of opinion on this point cannot be doubted. Further, it is clear that it is not necessary for this difference to be resolved for the purpose of deciding the present appeals. In my judgment, that resolution will have to await a case in which it does arise for decision.

    Therefore, it is with the intention of assisting and informing the argument which I consider will have to take place in a later case that I enter upon this subject. Since the question of public policy is based not upon some higher moral imperative but upon a pragmatic assessment of what is justifiable in our society, that assessment may change as circumstances change. The answer that I would give today is not necessarily the same as that which I would give at a later date. I can give two examples of why that might be so. First, lessons may be learnt from the abrogation of the advocacy immunity in civil litigation which will better inform the consideration of the immunity in criminal litigation and the consequences, favourable or adverse, which would follow from its being abrogated as well. Secondly, a new regime of legal representation by quasi-public defenders operating under strict monetary limits is proposed for criminal litigation and it is possible that such a change will so alter the role of the defending advocate as to favour (or even necessitate) unrestricted civil liabilities along the American pattern.

The Advocacy Immunity:

    Since the passing of s. 62 of the Courts and Legal Services Act 1990, nothing now turns upon the distinction between solicitors and barristers. This parity has been reinforced by s. 42 of the Access to Justice Act 1999 confirming the paramount duty to the court owed by all those exercising a right of audience. It is accepted that the current immunity (if any) is an advocacy immunity attaching to an advocate exercising his or her rights of audience. It is not a general litigation immunity. The appellants, the solicitors, sought to rely upon the formulation drawn by the House of Lords in Saif Ali v. Sydney Mitchell & Co. from the New Zealand case Rees v. Sinclair [1974] 1 NZLR 180 that the immunity covers what is done in court and preparatory work which is "intimately connected" with the conduct of the case in court. Counsel for the Bar Council argued for a narrower formulation being an immunity confined to conduct in the face of the court but covering any allegation concerning conduct out of court designed simply to evade that immunity.

    It is also accepted that any immunity must be justified as being necessary in the public interest, otherwise it cannot survive. Before the 1960s it was thought that a contract was essential to the existence of a duty of care to avoid economic loss and that a barrister did not by accepting instructions enter any contractual or other legal relationship with his lay or professional client. There was simply a mutual absence of legal liability which required no justification. Rondel v. Worsley & Co. for the first time had to consider whether any immunity was justified and if so its extent. Various justifications for a limited immunity were accepted in that case as justified. The extent of the immunity has been revisited in Saif Ali v. Sydney Mitchell. There is no dispute as to the criterion to be applied: the dispute is as to the result.

    Counsel for the Bar Council submitted that the rule was in truth a statement that no duty of care existed within the 'immune' area, apparently as an application of the public policy third leg of the 'Wilberforce' test. I do not accept that submission. What is in issue is a true immunity. But in any event, the submitted exclusion of a duty of care was based upon the same criterion as the immunity. Its relevance was to the human rights aspect of the debate. If it were a question of a blanket public policy limitation on the scope of the duty of care, the case of Osman v. United Kingdom [1999] 1 FLR 193 would be directly in point whereas if it is a question of an immunity the criteria laid down in the case of Ashingdane v. United Kingdom (1985) 7 EHRR 528 would govern. These criteria are similar to and no more rigorous than those to be applied under English law to justify the immunity: the immunity must "pursue a legitimate aim" and there must be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved". (paragraph 57.)

Rondel v. Worsley:

    It is of the nature of a rule the continued existence of which has to be justified by the public interest that the balance of public interest may change. A decision such as Rondel v. Worsley is therefore open to review, not because it was wrong when it was decided, but because circumstances have changed since 1967 and it is appropriate that the rule should be reviewed and, if no longer justified, changed or abrogated. It is not a question of whether to over-rule previous authority but of declaring the law in current conditions.

    However, the role of Parliament must also be taken into account. Parliament is the primary guardian of the public interest. In most areas of public policy, Parliament will be the sole arbiter and the courts should not allow themselves to trespass into them. But in the present appeals the relevant area is the system of justice and the administration of justice in the courts. In this area the judges have a legitimate competence to declare where the public interest in the achievement of justice lies and what is likely to be the impact of one rule or another upon the administration of justice.

    It is also the case that Parliament has quite specifically refrained from intervening in this matter. S. 62 of the Act of 1990 disclosed no disapproval of the existence of an immunity for barristers and others performing a similar function; indeed, it could be argued that s. 62 assumes that there is such an immunity and that it will continue in being. Other statutes, such as the Access to Justice Act 1999, have likewise refrained from abrogating or qualifying the immunity even though such a provision would have been well within the purview of the statute. There are other statutory provisions to which I will refer in the course of this speech which are relevant to the consideration of the broader policy of the legislature and therefore to the existence of the immunity and which should accordingly be taken into account before reaching a conclusion. The leading role of Parliament must be recognised and any decision at which your Lordships were to arrive would have to be one which is consistent with the guidance to be gained from the acts of the Legislature.

    Inevitably, Rondel v. Worsley deployed a number of reasons for recognising an immunity. These were commented on by Lord Diplock in Saif Ali. Some are more apt than others and they have already been rehearsed and criticised by several of your Lordships. However it is necessary to analyse some of them further. Some factors which seemed important 30 years ago have ceased to be so now and others which received only a passing reference then can now be seen to be essential to making the right evaluation of where the public interest lies. Likewise, in conducting now a re-examination of the cogency of the various factors, it is necessary to set them in the appropriate current context. The observations which follow are not exhaustive and are merely designed to make some of the points which I consider need to be made.

The Protection of the Advocate:

    The advocate, independently of any immunity, has certain protections. The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made. This is an important element of protection against unjustified liabilities. Similarly, there now exist improved procedures to enable obviously unsustainable claims to be brought to a conclusion at an early stage of any litigation. The availability of these protective features and their value in discouraging and limiting unmeritorious litigation is relevant when questioning the need for any immunity. The position was not the same in 1967.

    I consider that it is not an argument that the immunity is needed to protect advocates against excessive liabilities. There is no evidence that any liabilities to which advocates would be subjected if not immune would be unsustainable or disproportionate. They are in this respect in the same position as any other professional. Such risks are insurable and advocates are now professionally required to carry liability insurance. There is no evidence that satisfactory insurance is not available. Indeed, the aspects of legal practice most obviously liable to give rise to large claims fall outside the scope of any immunity being contended for or, at the least, are likely to do so.

    But, in any event, no case is being made - nor can it be made - that lawyers should as a profession be given any special protection. The immunity, if any, must exist for the benefit of the public not the lawyers. Thus, the element of protection only comes in collaterally and consequentially. The immunity, if upheld, would have the effect of protecting advocates from being harassed by unmeritorious claims: the justification would, on this basis, be that to require them to be subjected to such harassment and to have to guard against the risk of it would have a deleterious effect upon the administration of justice. (Munster v. Lamb 11 QBD 588; Roy v. Prior [1971] AC 470) It is the exposure to the risk which does the damage. It inevitably distorts professional practices and professional judgments, likewise the distribution of resources, and, where, as is the case with the practice of advocacy, the existing system is on the whole working well, this distortion will be adverse and will not assist the general good. A comparison of benefit (to the individual litigant) and detriment (to the public as a whole including litigants as a class) has to be made and a balance struck. This is not to devalue the rights of the individual but to recognise that in any communal society such a balance has to be struck. For others involved in the justice system the balance is judged to favour immunity. The question is whether the same judgment should be made for advocates as well.

 
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