Solicitors Immunity in UK Law

Both counsel submit, rightly in our judgment, that advice as to a plea is something which is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that the cause is to be conducted when it comes to a hearing, within the test proposed by McCarthy P. in Rees v. Sinclair and approved by the House of Lords in Saif Ali's case. Indeed it is difficult to think of any decision more closely so connected.

I do not understand this formulation as suggesting an entirely new test, i.e. a double test requiring (a) intimate connection with the conduct of the cause in court and (b) necessity in the interests of the administration of justice. The latter words state the justification for the test but the test lies in the former words.

No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon.

The first is that the barrister's immunity from liability for what he says and does in court is part of the general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice; judges, court officials, witnesses, parties, counsel and solicitors alike.

Without the support of those additional grounds of public interest, as I have already indicated, I can find no sufficient reason for extending the immunity to anything that a barrister does out of court; save for a limited exception analogous to the extension of a witness's protection in respect of evidence which he gives in court to statements made by him to the client and his solicitor for the purpose of preparing the witness's proof for trial.

Since I am applying a principle based on public policy to grant an immunity which has not hitherto been explicitly recognised, I can, I think, consider whether public policy requires that an absolute immunity should be granted. The approach of their Lordships in Darker's case indicates that immunity from suit, in respect of which the law has granted absolute immunity, should be confined as narrowly as reasonably possible.

On any basis the Defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to 0.38 rule 38 but the purpose of the meeting was to identify those parts of the evidence and the other's opinion which they could agree and those which they could not. The duty to the Court must override the fear of suit arising out of a departure from a previously held position.