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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    Before leaving this aspect of protecting the practitioner, there is a difference between the solicitor's profession and that of the barrister which has in the past been of major relevance and is still not irrelevant. A solicitor who feels uncertain about his position can always take the advice of counsel and, provided that the counsel chosen was competent and the advice not manifestly wrong, that will protect the solicitor. The barrister has no equivalent protection, nor in practice does the advocate. The fact that solicitors have in the past successfully operated in a no immunity environment must be evaluated in this context before the same assumption is made for the advocate.

    Conflict of Duty:

    The argument based upon owing a paramount duty to the court (reinforced by s. 42 of the 1999 Act) is of only limited impact and needs further analysis. The relevant argument has to be based upon a conflict of duty. If the duty owed by the advocate to the court is no more than a duplication of his duty to his client, the existence of the duty presents no problem for the advocate: he must simply do his duty. (I will have to come back to other consequences of this later.) However where there is a conflict of duty he may have to make choices which are contrary to the wishes of his client. A threat by a client to sue the advocate may put the advocate in a difficult position particularly where the extent of his duty to the court and precisely what it entails may be itself a matter of judgment or disagreement. Thus the potential for a conflict of duty is a relevant, but far from dominant, factor in the assessment of the need for an immunity.

    I am not impressed by the counter-argument that other professional men also owe duties which may conflict with the wishes of their client or patient. Typically these are ethical duties or obligations not to breach the criminal law. Such constraints upon conduct are of a character common to virtually all citizens. They do not as such raise the same potential problem as the conflicts faced by an advocate. The impressive counter-argument is that competent advocates are well able to cope with such conflicts and are confident that, where they adopt a particular view of their duty to the court in good faith, their judgment will be upheld by the court.

    There is no evidence that the lack of immunity where it exists causes difficulties with the discharge of the lawyer's duty to the court. The most striking example of this is the duty in civil litigation to give discovery of all material unprivileged documents to the opposing side. Such documents include those of which the only relevance is that they damage the disclosing party's case or support the other side's case. It is contrary to the client's interest that the other side should see them yet it is the solicitor's task and duty to disclose them. Solicitors have for over a century performed this task without immunity from being sued by their clients. (However, as I warned in the previous section of this speech, it is an oversimplification to extrapolate from the position of the solicitor to a dismissal of any problem for the advocate.) Any threat of corruption of the lawyer comes not from the fear of being sued but rather the wish not to lose a valuable client by being over-zealous. (cf. the position of an auditor.) In general the client appears to understand that he is employing the solicitor to perform his, the client's, duty and is content that he should.

    This also illustrates the further point that there are two types of duty involved. There are those which are equally duties of the client (eg see CPR 1.3) and there are those which are solely duties of the lawyer and personal to him. The advocate's duties which are relevant under this head come into the latter category and require the advocate to be prepared, in relation to the court, at times to stand apart from his client.

The Duty to Act for any Client:

    This is a duty accepted by the independent bar. No one shall be left without representation. It is often taken for granted and derided and regrettably not all barristers observe it even though such failure involves a breach of their professional code. It is in fact a fundamental and essential part of a liberal legal system. Even the most unpopular and antisocial are entitled to legal representation and to the protection of proper legal procedures. The ECHR confirms such right. It is also vital to the independence of the advocate since it negates the identification of the advocate with the cause of his client and therefore assists to provide him with protection against governmental or popular victimisation.

    The principle is important and should not be devalued. But the relevant question is whether it provides a justification for the immunity. In my judgment it is properly taken into account as a factor since it restricts the freedom of action of the advocate and casts light upon the true nature of his role. (In the procedure of criminal courts, it goes hand in hand with the restrictions upon the ability of the defence advocate to withdraw during the trial.) But it does not in itself justify an immunity. The medical profession would normally accept an ethical obligation to provide medical care without discrimination without seeking any immunity in return. Historically the adoption of a common calling has carried both an obligation to accept all custom and an absolute liability. A common carrier had to accept and carry goods entrusted to him and was absolutely liable for their loss or damage subject to only very narrow exceptions.

The Trial Process and Appeal:

    This is, or should be, at the centre of this debate and is in my judgment the critical factor which must be evaluated. How does the role of the advocate and any immunity relate to the trial and appeal process? It is the fact that different answers are to be given to this question for the civil process and the criminal process that leads to the conclusion that for one the immunity may no longer be justified but for the other it should be retained.

    The trial is where the advocate finally exercises his right of audience and practises his advocacy. It is a process which is unique in that it is conducted before the court or judge. It is under the direct supervision and control of the court or judge. The advocate is subject to a discipline judicially imposed. It is normally conducted in public. The purpose of a trial is to achieve finality and lead to a decisive adjudication.

    Any decision reached at the trial is subject to appeal. The appeal is the process provided by the legal system for the rectifying of errors or mishaps which have occurred during the trial. The appeal process itself represents a working out of the policy of the law for qualifying the finality of the trial and incorporates appropriate safeguards. It is upon the appeal process more than upon the trial process that any system of civil fault-based remedies against advocates would encroach. The place for criticising the outcome of the trial and remedying any miscarriage of justice should in principle be the appeal court, not another trial where the advocate is the defendant.

    A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation. The relevant sanction is either being held in contempt of court or being prosecuted under the criminal law. Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity: Roy v. Prior [1971] AC 470, especially per Lord Morris at pp. 477-8. This rule exists in the interests of the trial process, ie in the public interest. Under Rondel v. Worsley and Saif Ali the advocates have a similar immunity.

    It is illuminating to consider the conceptual basis in the trial process for the witness immunity. It is that the witness, although called by a party, is giving evidence to the court. The witness's duty is to tell the truth to the court regardless of the interests of the party who has called him or who is asking him questions. This same scheme is spelled out in the new Civil Procedure Rules regarding expert witnesses. An expert witness is in a special position similar to that of the advocate. He is selected and paid by the party instructing him. Part of his duties include advising the party instructing him. If that advice is negligently given the expert, like the lawyer, is liable. But once the expert becomes engaged on providing expert evidence for use in court (CPR 35.2; Stanton v. Callaghan [2000] 1 QB 75) his relationship to the court becomes paramount as set out in the CPR and he enjoys the civil immunity attributable to that function.

    If the advocate is to be treated differently, he alone of these participants in the trial will be being held civilly liable for what he does and does not say in court. This anomaly will require justification. The anomaly is not without further significance in that, if the advocate is to be held civilly liable for some adverse outcome of the trial, he will have to bear the whole loss even though other participants may have been equally, or more seriously, at fault. From the point of view of the aggrieved party, if some fault can be found with the performance of the advocate, he recovers in full from the lawyer; but, if only other participants were at fault, he recovers nothing at all. It is necessary to be very cautious before correcting one perceived anomaly by creating another.

    A further feature of the trial process is its finality (subject to appeal). Some judgments establish a status in private or public law, others do no more than establish a liability, or non-liability between one individual and another. There are developed rules governing those who are bound by judgments and under what circumstances they can be challenged. A civil judgment itself creates rights which are distinct from, and in which may merge, rights which existed before. It is thus important to consider the relationship between the original trial which has given rise to the client's complaint and the subsequent litigation between the client and his advocate. Does the subsequent litigation challenge or affirm the outcome of the previous trial? If it affirms it, no problem arises. If on the other hand, the substance of the later litigation is to challenge the outcome of the previous trial, then a question of finality can arise. It may be a challenge to the status of the previous decision. This is a point to which I will have to return and is a cardinal point of distinction between the criminal and civil process.

    This in turn ties in with the consideration of the interest of the client which the law of tort, if available, would serve to protect. The law of negligence exists to provide monetary compensation for losses capable of being valued in monetary terms. Where the loss suffered by the client is financial, the remedy is appropriate and effective. Where the complaint has a different character, as for example that the client has been convicted of a crime which he says he did not commit, an action in tort does not remedy that grievance and can at most provide a solatium or some means of visiting punishment upon the advocate alleged to have failed to secure an acquittal. Such a complaint also has the necessary character of challenging the conviction; it involves saying that an innocent man has been wrongly convicted.

    To permit actions which involve a re-examination of a trial that has already occurred and a judgment already given inevitably must trespass on the finality of that trial and judgment and the appeal procedure and involve some duplication of the previous process. Accordingly such permission requires justification.

    Another point which emerges from this discussion is that the oft resorted to analogy with the medical profession and its lack of immunity breaks down. The advocate's conduct is already public and within the purview of the judicial system both at the trial and on appeal. It is not necessary to permit negligence actions to be started in order to achieve this judicial control; nor is it necessary in order bring the advocate's conduct into the public domain.

    Finally, in connection with the litigation process, one of the remedies it provides to the dissatisfied client is the ability to challenge the fees and expenses charged by the lawyer to the client. It is possible for the client to procure that those charges are disallowed or reduced on taxation. It is not necessary for him to bring an action for damages to achieve this result. Similarly the court has the power to make wasted costs orders against a litigator or advocate which consequentially benefit the litigants. (Ridehalgh v. Horsefield [1994] Ch 205)

Abuse of Process: Collateral Attack:

    The ability to stay or strike out an action as an abuse of the procedure of the court is a long standing remedy, an inherent power of the court, and is reflected in the CPR and their predecessors. Its essence is the use of civil litigation for an improper purpose, ie without a legitimate purpose. Where a client is seeking to recover damages from his former advocate for some breach of duty, this is clearly a proper purpose if the advocate is not immune. It is important to stress this at the outset as it has been submitted by the respondents that abuse of process provides a satisfactory solution to any problems arising from denying the existence of the immunity. It is not a substitute for the immunity. It is rather one of the existing features of the law, like the standard of care applied in professional negligence cases, against which to test the necessity of having the immunity. Another point to stress at the outset is that 'collateral attack' only comes into the picture when it discloses an abuse of process. It is a distinct concept and challenging a previous decision does not necessarily connote an abuse of process.

    Rondel v. Worsley was a case where the claim could in any event have been struck out as disclosing no reasonable cause of action. Rondel did not suggest that his advocate caused him to be convicted; his grievance was that the advocate had not pursued sufficiently forcibly his allegation that he had used his hands and teeth to inflict the relevant injuries. It was not a case where there was any attack, collateral or direct, upon the jury's verdict. Neither that principle nor the decision in Hunter v. Chief Constable of the West Midlands Police would have caused the action to be halted.

    A similar point is to be made in relation to Hunter. In that case the plaintiffs had been convicted of a terrorist offence substantially on the basis of their admissions to the police. At the criminal trial they contended that the confessions were involuntary as they had been beaten by the police. The trial judge, after a voir dire, rejected their evidence and preferred that of the police. The jury convicted them. Subsequently they sued the police for assault. They were trying to relitigate in a civil court the same issue as had been in dispute at the criminal trial and had been decided against them beyond reasonable doubt. It was a case of a collateral attack both on the trial judge's finding and upon the verdict of the jury. The courts and your Lordships' House held that the civil action was an abuse of process and should be struck out. It was not however an action against their lawyers. If they had had a bona fide complaint against their lawyers and had sued them, there would have been no reason why, subject to the immunity point and presenting a reasonable case on breach of duty, their action should not have gone ahead. The immunity point and the abuse of process point are distinct and separate. They do not serve the same purpose.

    The 'collateral attack' point is a species (or 'sub-set') of abuse of process. There is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case. The law of estoppel per rem judicatem (and issue estoppel) define when a party is entitled to do this. Generally there must be an identification of the parties in the instant case with those in the previous case and there are exceptions. So far as questions of law are concerned, absent a decision specifically binding upon the relevant litigant, the doctrine of precedent governs when an earlier legal decision may be challenged in a later case.

    A party is not in general bound by a previous decision unless he has been a party or privy to it or has been expressly or implicitly covered by some order for the marshalling of litigation. (Ashmore v. British Coal Corporation [1990] 2 QB 338) This overlaps with the concept of vexation where the same person is faced with successive actions making the same allegations which have already been fully investigated in a previous case in which the later claimant had an opportunity to take part. This reasoning does not apply to an action against a lawyer alleging that he has mishandled a previous case.

    The case of Hunter is not apt or adequate to deal with cases brought by aggrieved clients against advocates alleged to have been negligent.

Summary:

    My Lords, it is convenient to summarise the position thus far.

(1) The immunity of the advocate, if it is to be upheld, must be justified as necessary in the public interest.

(2) Rondel v. Worsley represented the assessment of where the public interest lay at the time it was decided in 1967.

(3) Parliament has not sought to abolish the immunity and has implicitly left it to the courts to consider whether the immunity should survive.

(4) Statutes have however not been silent upon relevant aspects of the public interest and such guidance must be respected and followed.

(5) There is a balance to be struck. There are factors to be placed on either side of the scales.

(6) The most important factors are the assessment of the role of the advocate in the court process and whether the interest of the client would be appropriately protected by the tort remedy.

(7) To substitute one anomaly for another is not the right answer.

(8) The abuse of process tool is no more than a relevant part of the existing law and does not address the same question as the immunity and does not provide a substitute for it.

(9) I consider that the balance of the public interest needs to be examined separately for the civil and the criminal process. The Civil Process:

    The civil process includes most of the factors to which I and others have referred. The question is how potent they are and whether they still suffice to justify the immunity of the advocate in civil litigation. My Lords, in agreement with your Lordships, I consider that they do not.

    The character of civil litigation is that it involves the assertion by one party that the other has infringed his rights; he seeks a remedy, normally a monetary remedy but sometimes a remedy of declaration of right or specific implement. The court, therefore, has essentially to make a decision between two conflicting parties and determining their respective rights inter se. It is primarily the provision by the state of a service similar to the provision of arbitration services. The public interest does not normally come into it save in so far as the provision of a system of civil dispute resolution and the enforcement of civil rights is a necessary part of a society governed by the rule of law not by superior force.

    It is a system of relative justice. It exists in economic terms. The plaintiff complains that he has suffered loss and damage; he claims that the defendant should be required to pay monetary damages to compensate him; the remedy is a redistribution of wealth between the parties. Or he may assert a property right and ask that the court should assist him enforce it against the defendant. If something goes wrong in the litigation, the court does not simply ask whether the party directly affected will suffer an injustice if not assisted by the court, eg by having his time for doing some act extended, or by being allowed to amend his case. It asks whether assisting one party will cause an injustice to the other. Where the mishap has resulted from some act or omission of a party's lawyer, that party may be left to his remedy against his own lawyer rather than to allow the mishap to prejudice the other party. If all potential for a liability of the lawyer to his client is excluded, this will make it more difficult to do justice between the plaintiff and the defendant not less difficult.

    The same applies on an appeal. The primary concern is not the fairness of the trial but its outcome; can the appellant show that he not the respondent was entitled to succeed? Complaints by an appellant against his own advocate will rarely advance his case because they will not normally impinge upon the case of the respondent. New evidence is only admitted under very restricted circumstances: Ladd v. Marshall [1954] 1 WLR 1489. The reasoning is that the unsuccessful party is not entitled to deprive the other of his judgment without showing cogent reasons as against that other.

    If a party has suffered a loss, either by being held liable to the other party or through failing to recover from the other, that financial loss represents the starting point of the claim of the client against his lawyer and the remedy he claims from his lawyer, an award of damages expressed in monetary terms is the appropriate remedy for the wrong complained of. The dominant relationship is that of the lawyer and his client. The introduction of conditional or contingent fees gives the lawyer a financial interest in the litigation which only serves further to emphasise the commercial character of the relationship and the commercial enterprise in which they have joined.

    A successful claim against the lawyer does not attack the position of the other party to the original litigation. It affirms that outcome of the original litigation as having established conclusively, as between those parties, their rights inter se. The client alleges that that outcome was caused by the failure of his lawyer to provide the stipulated service. This not different in kind to a client saying that the adverse tax treatment of a transaction was caused by the negligent advice or drafting of the lawyer he employed. It will not be cured by an appeal in the litigation.

    In the preceding paragraphs I have simply referred to the client's lawyer because what I have said is equally true of both the in-court advocate and out-of-court litigator. It assists the doing of justice between plaintiff and defendant in civil litigation that the client's rights against his lawyers of any kind be preserved in full and the economic remedy is the right remedy. The appeal process is not apt to provide the remedy

    One of the problems of any immunity is determining its boundaries. In civil litigation, defining the boundaries of what constitutes advocacy and would therefore qualify for the advocacy immunity is a serious problem not capable of satisfactory solution. The position has been made more difficult by the CPR. There is not a single moment of confrontation. The exercise of advocacy extends over a series of processes of which the trial is only one and the advocacy may be conducted as much in writing as orally. Counsel for the appellants signally failed to provide a satisfactory definition or categorisation of the functions to which, in civil procedure, the immunity would attach. This is a telling argument against the recognition of an immunity for advocates for civil procedure and has assisted to convince me that the immunity is not necessary or appropriate. In civil litigation the immunity is anomalous and the arguments in its favour, although they exist, do not suffice to justify its continued existence.

    The Criminal Process:

    Even though the criminal process is formally adversarial, it is of a fundamentally different character to the civil process. Its purpose and function are different. It is to enforce the criminal law. The criminal law and the criminal justice system exists in the interests of society as a whole. It has a directly social function. It is concerned to see that the guilty are convicted and punished and those not proved to be guilty are acquitted. Anyone not proved to be guilty is to be presumed to be not guilty. It is of fundamental importance that the process by which the defendant is proved guilty shall have been fair and it is the public duty of all those concerned in the criminal justice system to see that this is the case. This is the public interest in the system.

    The criminal trial does not exist to protect private interests. It exists as part of the enforcement of the criminal law in the public interest. Those who take part in the trial do so as a public duty whether in exchange for remuneration or the payment of expenses. The purpose of all is, or should be, to see justice done and to play their appropriate part in achieving that end. The proceedings are conducted in public under judicial control. The position of the advocates is the same as that of the other participants. The prosecuting advocate has a duty to see that the prosecution case is, on behalf of the Crown, presented effectively and fairly. That of the defending advocate is to see that the defendant has a fair trial, that the prosecution case is properly probed and tested both in fact and in law and that his factual and legal defences are properly placed before the court supported by the available evidence and arguments. The same applies to criminal appeals: the purpose and the roles of the participants are the same.

    It follows from these fundamentals that the salient features of this procedure exist to serve the public interest, not to serve any private interest. The defendant is entitled to skilled professional representation and, if he cannot provide it for himself, it will be provided for him at public expense, as happens in virtually all cases. It is likewise necessary that the advocate having the task of representing the defendant shall be independent and fearless. If he is not he will not be equipped to discharge the public duty entrusted to him to see that the defendant has a fair trial and that he is not convicted unless proved guilty. The advocate is performing a public function in the public interest. It is his public duty to protect the interests of his client. The criminal justice system depends upon his doing so skilfully and independently.

    The other participants have a similar public duty to perform their role. They take part in the trial as a public duty. All must be concerned to see that the defendant has a fair trial. Thus the judge and the prosecuting counsel will join in seeing that errors of fact or law are not made. It is the judge's duty to direct the jury on defences available on the evidence and to exclude inadmissible or unfair evidence. It is the duty of both counsel to draw the judge's attention to any errors he may have made. All witnesses are under a duty impartially to assist the court and give honest evidence. If the defence advocate is to be exposed to a civil liability in respect of his discharge of his public duty and the role he has to perform in the criminal trial process, he will be unique among the participants. All the others are in the public interest immune; the same logic applies to the defence advocate whose role derives from the same public interest and is just as important to the public interest as that of the other participants. As previously observed, if he alone is to be subjected to civil liability, he will be unable to obtain a contribution from any other participant although they may be equally blameworthy for what went wrong. The scheme is that the participants are subject to the jurisdiction of the court and the court has appropriate disciplinary powers to control the proceedings and the conduct of the participants. In cases of serious misconduct, it is the criminal law which intervenes not the civil law.

 
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