|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)
My Lords, one is intensely aware that Rondel v. Worsley  1 A.C. 191 was a carefully reasoned and unanimous decision of the House. On the other hand, it is now clear that when the balance is struck between competing factors it is no longer in the public interest that the immunity in favour of barristers should remain. I am far from saying that Rondel v. Worsley was wrongly decided. But on the information now available and developments since Rondel v. Worsley I am satisfied that in today's world that decision no longer correctly reflects public policy. The basis of the immunity of barristers has gone. And exactly the same reasoning applies to solicitor advocates. There are differences between the two branches of the profession but not of a character to differentiate materially between them in respect of the issue before the House. I would treat them in the same way.
That brings me to the argument that the ending of the immunity, if it is to be undertaken, is a matter for Parliament. This argument is founded on section 62 of the Courts and Legal Services Act 1990. It reads as follows:
The background to this provision is, of course, the judicially created immunity of barristers, which in 1967 was held by the House to be founded on public policy. And it will be recollected that Lord Reid observed that public policy is not immutable. Against this background the meaning of section 62 is clear. It provides that solicitor advocates will have the same immunity as barristers have. In other words, the immunity of solicitors will follow the fortunes of the immunity of barristers, or track it. Section 62 did not either expressly or by implication give Parliamentary endorsement to the immunity of barristers. In these circumstances the argument that it is beyond the power of the House of Lords, which created the immunity spelt out in Rondel v. Worsley, to reverse that decision in changed circumstances involving a different balance of policy considerations is not right. Should the House as a matter of discretion leave it to Parliament? This issue is more finely balanced. It would certainly be the easy route for the House to say "let us leave it to Parliament." On balance my view is that it would be an abdication of our responsibilities with the unfortunate consequence of plunging both branches of the legal profession in England into a state of uncertainty over a prolonged period. That would be a disservice to the public interest. On the other hand, if the decision is made to end the immunity now, both branches of the profession will know where they stand. They ought to find it relatively easy to amend their rules where necessary and to adjust their already existing insurance arrangements insofar as that may be necessary.
My Lords, the cards are now heavily stacked against maintaining the immunity of advocates. I would rule that there is no longer any such immunity in criminal and civil cases. In doing so I am quite confident that the legal profession does not need the immunity.
The Hunter case
So far as the Hunter case involves a separate question before the House I would refer to my discussion of this topic under the heading of Immunity of Barristers.
The Disposal Of The Appeals
Given the conclusion that the immunity no longer exists, it follows that the appeals must fail. I would dismiss the three appeals.
I have had the advantage of reading the speeches of my noble and learned friends Lord Steyn and Lord Hoffmann. I agree with them and for the reasons they give, I would dismiss these appeals. However, since the point at issue is important and your Lordships' views are not unanimous, I will state shortly my views on the point on which your Lordships are divided.
Let me initially consider the points on which your Lordships are all agreed. First that, given the changes in society and in the law that have taken place since the decision in Rondel v. Worsley  1 A.C. 191, it is appropriate to review the public policy decision that advocates enjoy immunity from liability for the negligent conduct of a case in court. Second, that the propriety of maintaining such immunity depends upon the balance between, on the one hand, the normal right of an individual to be compensated for a legal wrong done to him and, on the other, the advantages which accrue to the public interest from such immunity. Third, that in relation to claims for immunity for an advocate in civil proceedings, such balance no longer shows sufficient public benefit as to justify the maintenance of the immunity of the advocate.
The point on which your Lordships are divided is whether the same rules should apply whether the negligence alleged against the advocate relates to his conduct of a civil action or to a criminal prosecution. Are there, as some of your Lordships think, special reasons which require the immunity of the advocate in a criminal trial to be maintained? Of the four main grounds relied upon as justifying the immunity, only one seems to me to be capable of justifying the immunity, namely that to allow an action for negligence against the advocate for his conduct in earlier litigation is necessarily going to involve the risk that different conclusions on issues decided in the first case will be reached in the later case. In the context of civil proceedings (i.e. where the advocate is sought to be made liable for his conduct of a civil action) although such conflicting decisions are undesirable, they are far from unknown. But in the context of criminal proceedings (i.e. when the advocate's negligence occurred in the course of a criminal trial) the decision is far more difficult. In the overwhelming majority of cases, the action in negligence will not be capable of succeeding unless the verdict of guilty in the original trial is held to have been incorrect; if the complainant was in any event guilty of the alleged crime, the negligence of his advocate, even if proved, would not have been shown to be causative of any loss. Therefore, if there is to be a successful action for negligence in criminal matters, so long as the plaintiff's criminal conviction stands there will be two conflicting decisions of the court, one (reached by judge and jury on the criminal burden of proof) saying that he is guilty, the other (reached by a judge alone on balance of probability) that he is not guilty. My Lords, I would find such conflicting decisions quite unacceptable. If a man has been found guilty of a crime in a criminal trial, for all the purposes of society he is guilty unless and until his conviction is set aside on appeal. Therefore, if the removal of the advocate's immunity in criminal cases would produce these conflicting decisions, I would have no doubt that the public interest demanded that the advocate's immunity be preserved.
But in my judgment the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction. Hunter v. Chief Constable of the West Midlands Police  A.C. 529 establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such re-litigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute. In view of the more restrictive rules of res judicata and issue estoppel it is not clear to me how far the Hunter case goes where the challenge is to an earlier decision in a civil case. But in my judgment where the later civil action must, in order to succeed, establish that a subsisting conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute. Save in truly exceptional circumstances, the only permissible challenge to a criminal conviction is by way of appeal.
It follows that, in the ordinary case, an action claiming that an advocate has been negligent in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Only if the conviction has been set aside will such an action be normally maintainable. In these circumstances there is no need to preserve an advocate's immunity for his conduct of a criminal case since, in my judgment, the number of cases in which negligence actions are brought after a conviction is quashed is likely to be small and actions in which the conviction has not been quashed will be struck out as an abuse of process.
For these reasons, and the much fuller reasons given by Lord Steyn and Lord Hoffmann, I would dismiss these appeals.
1. The facts.
In these appeals three clients are suing their solicitors for negligence. In the first, Mr. Simons says that his solicitors negligently allowed him to become involved in lengthy and expensive litigation when they should have advised him to settle. In the second, Mr. Barratt says that his solicitors negligently advised him to settle his divorced wife's claim for a share of the matrimonial home on disadvantageous terms. In the third, Mrs. Harris has a similar complaint about the terms upon which her solicitors advised her to settle her claim for maintenance against her ex-husband. None of these allegations has been investigated. The solicitors may or may not have a complete answer to them. But they say that even if they were negligent, they cannot be sued. They claim immunity under a modern version of an ancient rule of common law which prevented barristers from being sued for negligence.
2. The immunity rule
The old rule for barristers survived until 1967. The way in which it was usually explained was that barristers, unlike solicitors, had no contract with their clients. They could not sue for their fees. And in the absence of a contract there could be no liability. But that reason was undermined when the House of Lords decided in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.  A.C. 465 that, even without a contract, a person who negligently performed professional or other duties which he had undertaken could be sued in tort. So the whole question was re-examined by the House in Rondel v. Worsley  1 A.C. 191. What emerged was a different rule of immunity, in some respects wider and in others narrower, not based upon any technicalities but upon what the House perceived as the public interest in the administration of justice.
The new rule was narrower because, although their Lordships were not unanimous about its precise limits, they agreed that it should in general terms be confined to acts concerned with the conduct of litigation. None of them thought that it could apply to non-contentious work. Barristers had previously been immune from liability for anything. On the other hand, the new rule was wider in that it also applied to solicitors.
Most of the speeches in Rondel v. Worsley  1 A.C. 191 were devoted to explaining why the new immunity was necessary. The old cases had not relied solely upon the technicalities of contract. The rule was also said to be an expression of public policy. But Lord Reid said, at p. 227B-C, that public policy was "not immutable" and that because "doubts appear to have arisen in many quarters whether that rule is justifiable in present day conditions in this country" it was proper to "re-examine the whole matter." The grounds upon which their Lordships considered that public policy required a modified immunity may be summarised under four heads: divided loyalty, the cab rank, the witness analogy and collateral challenge.
3. Divided loyalty
Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important. Sometimes the performance of these duties to the court may annoy the client. So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in accordance with his overriding duty to the court. That would be prejudicial to the administration of justice.
4. The cab rank
It is a valuable professional ethic of the English bar that a barrister may not refuse to act for a client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay the appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court. It was said that barristers would be less inclined to honour this professional obligation if they suspected that the client was the sort of person who would, if he lost his case, turn on his barrister and sue for negligence. This consideration was said to apply with particular force to the criminal bar, where the unsuccessful client, like Mr. Rondel, was likely to have leisure to ponder the way his trial had been conducted and access to legal aid if he could persuade another lawyer that he had an arguable case.
5. The witness analogy
No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects witnesses, lawyers and the judge. The administration of justice requires that participants in court proceedings should be able to speak freely without being inhibited by the fear of being sued, even unsuccessfully, for what they say. The immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it is said that a similar immunity against proceedings for negligence is necessary to enable advocates to conduct the litigation properly.
6. Collateral challenge.
If a client could sue his lawyer for negligence in conducting his litigation, he would have to prove not only that the lawyer had been negligent but also that his negligence had an adverse effect upon the outcome. This would usually mean proving that he would have won a case which he lost. But this gives rise to the possibility of apparently conflicting judgments which could bring the administration of justice into disrepute. A client is convicted and sent to prison. His appeal is dismissed. In prison, he sues his lawyer for negligence. The lawyer's defence is that he was not negligent but that, in any case, the client has suffered no injustice because whatever the lawyer did would not have secured an acquittal. In seeking to establish the latter point, the lawyer may or may not be able to re-assemble the witnesses who gave evidence for the prosecution. The question of whether the client should have been acquitted is then tried on evidence which is bound in some respects to be different, before a different tribunal and in the absence of the prosecution. The civil court finds, on a balance of probability, that the lawyer was negligent and that if he had conducted the defence with reasonable skill, the client would have been acquitted. Or perhaps that he would have had a 50% chance of being acquitted. Damages are awarded. But what happens then? Does the client remain in prison, despite the fact that a judge has said there was an even chance that he would have been acquitted? Should he be released, notwithstanding that the prosecution has had no opportunity to say that his conviction was correct? Should it be referred back to the Court of Appeal and what happens if the Court of Appeal, on the material before it, takes a different view from the civil judge? The public would not understand what was happening. So it was said that to allow clients to sue for negligence would allow a "collateral challenge" to a previous decision of another court. Even though the parties were different, this would be contrary to the public interest.
7. The scope of the immunity
Eleven years later, after Rondel v. Worsley  1 A.C. 191, the House of Lords in Saif Ali v. Sydney Mitchell & Co.  A.C. 198 had to consider the limits of the immunity. There was no challenge to the decision itself or the core immunity for the conduct of litigation in court. The question was the extent to which that immunity cast its shadow upon acts done out of court. In the particular case, it was a barrister's failure to advise joining additional parties before the limitation period had expired. The test for the out of court immunity adopted by the majority of the House was whether the work was so "intimately connected" with the conduct of the case in court as to amount to a decision as to how it would be conducted at the hearing. By this test, the barrister's conduct fell outside the immunity.
Although the immunity itself was not under challenge in Saif Ali v. Sydney Mitchell & Co.  A.C. 198, Lord Diplock considered that the need to delimit its scope required a reconsideration of its rationale. He was unimpressed by the divided loyalty argument which had been in the forefront of the reasoning in Rondel v. Worsley  1 A.C. 191. He thought no better of the cab rank rule. But he considered that the analogy with witness immunity and the collateral challenge argument were sufficient to justify a limited immunity.
8. A reconsideration
In the cases now under appeal, the Court of Appeal was of course bound by Rondel v. Worsley  1 A.C. 191 and Saif Ali v. Sydney Mitchell & Co.  A.C. 198. It decided that in all three cases the alleged negligence of the solicitors was not within the scope of the immunity as extended to out of court work. Their advice was not intimately connected with the way in which the case, if it had not settled, would have been conducted in court. But before your Lordships, the respondent clients have made a root and branch attack on the immunity. They say that it should be altogether abolished. Over 30 years have passed since Rondel v. Worsley  1 A.C. 191; public policy, as Lord Reid said at the time, is not immutable, and there have been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions. They say that it is once again time to re-examine the whole matter. My Lords, I agree. In reconsidering these questions, I have been greatly assisted by a wealth of writing on the subject by judges, practitioners and academics, in the United Kingdom and overseas. I hope that I will not be thought ungrateful if do not encumber this speech with citations. The question of what the public interest now requires depends upon the strength of the arguments rather than the weight of authority.
9. The principle of equal treatment
My Lords, my point of departure is that in general English law provides a remedy in damages for a person who has suffered injury as a result of professional negligence. The landmark cases by which this principle was developed are Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.  A.C. 465, to which I have already referred, and Henderson v. Merrett Syndicates Ltd.  2 A.C. 145. It follows that any exception which denies such a remedy requires a sound justification. Otherwise your Lordships would fail to observe the fundamental principle of justice which requires that people should be treated equally and like cases treated alike.
In considering whether such a justification still exists, your Lordships cannot ignore the fact that you are yourselves members of the legal profession. Members of other professions, and the public in general, are bound to view with some scepticism the claims of lawyers that the public interest requires them to have a special immunity from liability for negligence. If your Lordships are convinced that there are compelling arguments for such an immunity, you should not of course be deterred from saying so by fear of unfounded accusations of collective self-interest. But those arguments need to be strong enough to convince a fair-minded member of the public. They cannot be based merely upon intuitions. This is a case in which what Professor Peter Cane has described as an "empathy heuristic" will not do. (See Oxford Essays in Jurisprudence, ed. J. Morder 4th series (2000) , p. 56, footnote 35.)
10. The divided loyalty argument analysed
My Lords, there is apt to be a certain amount of confusion about the exact nature of the divided loyalty argument. There are two distinct versions in circulation but they are not always recognised to be different.
(a) Effect on behaviour of lawyers
The first argument is that the possibility of being sued for negligence would actually inhibit the lawyer, consciously or unconsciously, from giving his duty to the court priority to his duty to his client, or, as Lord Diplock preferred to put it in Saif Ali v. Sydney Mitchell & Co.  A.C. 198, 219H from observing the rules. This argument involves a prediction about the way in which the removal of the immunity would affect the way in which lawyers behave in court. It claims that their behaviour would change in a way which was contrary to the public interest in the administration of justice. This was the argument advanced by Mr. Sumption to your Lordships on behalf of the defendant solicitors. He said that if there was no immunity, lawyers would in marginal cases prefer the interests of their clients to the interests of justice. It is an argument which in view of the eminence of its proponents in Rondel v. Worsley  1 A.C. 191 and elsewhere must be taken seriously I shall in due course return to it.
(b) A difficult art
The second version of the argument is that the divided loyalty is a special factor that makes the conduct of litigation a very difficult art. It is easy to commit what appear in retrospect to have been errors of judgment. Even if there is no real danger that a court would hold such errors to have been negligent, the advocate would be exposed to vexatious claims by difficult clients. The argument is pressed most strongly in connection with advocacy in criminal proceedings, where the clients are said to be more than usually likely to be vexatious. Your Lordships will observe that this version of the argument does not depend upon the proposition that lawyers will be deterred from observing the rules or their duty to the court. It is advanced as a good argument even if your Lordships think that there are no sufficient grounds for the prediction which Mr. Sumption invites you to make. It is rather an argument that the imposition of liability would be unfair. The efforts of lawyers in good faith to comply with their public duties should not leave them open to vexatious claims by dissatisfied clients. This is the argument which my noble and learned friend Lord Hutton calls the "second strand" of the divided loyalty argument. As he puts it, "it is not right that a person performing an important public duty by taking part in a [criminal] trial should be vexed by an unmeritorious action . . . ." I shall deal with this argument, which I propose to call the "vexation argument," before returning to the one advanced by Mr. Sumption.
11. The vexation argument
My Lords, I do not think that the vexation argument, taken by itself, has any validity. It is true that the conduct of litigation is a difficult art and that one of the reasons why it sometimes requires delicate judgment is the advocate's duty to the court. But there are many professional activities which require delicate judgment and advocacy is not the only one which may involve a divided loyalty. The doctor, for example, owes a duty to the individual patient. But he also owes a duty to his other patients which may prevent him from giving one patient the treatment or resources he would ideally prefer. We do not say that they should have immunity merely because they do a difficult job in which it is easy to make a bona fide error of judgment. And although the criminal advocate is engaged in an activity of great public importance, I do not think it would be right to claim that he is in this respect unique among professional men. The fact is that the advocate, like other professional men, undertakes a duty to his client to conduct his case, subject to the rules and ethics of his profession, with proper skill and care. No other participant in the trial undertakes such a duty.
There is some overlap between the vexatious claims argument and the witness analogy, to which I shall come in due course. Essentially it depends upon the same reasoning as Fry L.J. used in the famous passage in Munster v. Lamb (1883) 11 Q.B.D. 588, 607 in defence of the absolute privilege of witnesses giving evidence in court:
But this argument depends upon the assumption that there is a powerful public interest which makes this degree of protection necessary. In the case of witnesses, it is the assumption that they would otherwise be less willing to come forward and tell the truth in court. In other words, that their behaviour would be affected in a particular way which was contrary to the interests of the administration of justice. It is not simply the general proposition that people doing their best in a difficult job should not be exposed to vexatious claims. This argument could apply to many people besides lawyers. So in my opinion it is only the first version of the divided loyalty argument which can have any prospect of success. The second is in principle misconceived.