Awoyomi v Radford and Another
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LLOYD JONES |
| Judgment Date | 12 July 2007 |
| Neutral Citation | [2007] EWHC 1671 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/06/1066 |
| Date | 12 July 2007 |
[2007] EWHC 1671 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
Mr. Justice Lloyd Jones
Case No: TLQ/06/1066
Mr. Geraint Jones QC ( Direct Public Access Scheme) for the Claimant
Mr. Justin Fenwick QC and Mr. Ben Elkington (instructed by Messrs. Fishburns, 60 Fenchurch Street, London EC3M 4AD) for the Defendants
Hearing dates: 23 rd and 24 th April 2007
Approved Judgment
This is the trial of preliminary issues in an action in which the Claimant seeks damages for professional negligence against the defendants.
The parties have agreed that I should proceed, for the purposes of the trial of the preliminary issues only, on the following assumed facts. The Claimant was charged on indictment at the Inner London Crown Court with dishonestly obtaining loans from building societies and obtaining housing benefit payments by furnishing false information. Her trial commenced on 16 th October 1995. She pleaded not guilty to all charges. She was represented in the criminal proceedings by the barristers who are the First and Second Defendants in this action. Some days into the trial, on the 28 th November 1995, the trial judge asked to see all counsel in chambers. All counsel, including the Defendants, attended that meeting. During the course of that meeting, the trial judge informed the Defendants that in the event of the Claimant then pleading guilty to some or all of the counts against her, she would not receive an immediate custodial sentence. The Defendants had a meeting with the Claimant immediately after the meeting with the trial judge ended. Neither Defendant informed the Claimant of the trial judge's indication of sentence in the event of the Claimant entering one or more guilty pleas at that stage of the proceedings. However, at that meeting with the Claimant the Second Defendant strenuously attempted to persuade the Claimant to change all or some of her pleas to guilty. The Second Defendant informed the Claimant that she had to plead guilty or she would go to jail. The Claimant, who had not been informed of the trial judge's statement, refused to plead guilty. The meeting between the Defendants and the Claimant became highly acrimonious.
Following the meeting and after receiving advice from the Professional Standards Committee of the Bar Council, the Defendants declined to act further for the Claimant. The Claimant was then represented in the criminal trial by different counsel. At the end of the trial the Claimant was convicted of a number of offences and sentenced to three years' imprisonment. The Claimant accepts that she was rightly convicted.
On 6 th November 2000 the Claimant wrote to the Defendants informing each of them that she intended to commence proceedings against them for breach of retainer and negligence. She set out her case further in a letter of the 21 st December 2000. The Defendants, through solicitors appointed on their behalf, acknowledged the Claimant's letters. However, nothing further was heard from the Claimant until 6 th June 2006 when she served the claim form in this action. That claim form had been issued on 18 th May 2006.
On 20 th July 2000 speeches were delivered in the House of Lords in Arthur JS Hall & Co. (a firm) v Simons [2002] 1 A.C. 615.
The Defendants deny the allegations of negligence against them. However, this hearing has been limited to the following preliminary issues:
i) Whether the claim is statute barred;
ii) Whether (on the assumption that the Defendants were immune from suit in 1995) they now remain immune.
Section 2, Limitation Act 1980 provides:
“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
It is not suggested on behalf of the Claimant that any of the provisions of the Limitation Act which create exceptions to the operation of section 2 apply in this case.
On behalf of the Claimant Mr. Geraint Jones QC submits that the effect of the decision of the House of Lords in Hall v Simons is that the Defendants no longer enjoy immunity. Furthermore, he submits that no cause of action can accrue in the absence of a competent Defendant. Accordingly, in the present case no cause of action arose while the Defendants enjoyed immunity. That immunity was only removed by the decision of the House of Lords in Hall v Simons with effect from the 20 th July 2000, the date on which the speeches in that case were delivered. That was the first date upon which there was a person capable of being sued in respect of the negligence alleged. The six year limitation period only began to run against the Claimant from that date. The claim form was issued on the 18 th May 2006 within the six year period.
On behalf of the Defendants Mr. Justin Fenwick QC submits that time began to run against the Claimant for the purposes of limitation in 1995, despite the fact that the Defendants were then immune from suit in relation to their forensic conduct. Furthermore, when the decision in Hall v Simons was given, no cause of action arose for the first time, time did not begin to run for the first time on a pre-existing cause of action nor did time begin to run afresh on a pre-existing cause of action. Moreover, Hall v Simons did not have retrospective effect, with the consequence that the Defendants remain immune from suit in respect of their forensic conduct in 1995.
It is not necessary, for present purposes, to refer in any great detail to the history of the immunity from suit of advocates. A long-established rule of common law prevented barristers from being sued in negligence. Following the decision of the House of Lords in Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] A.C. 465 that a person who negligently performed professional or other duties could be sued in tort, barristers' immunity could no longer be justified on the basis that barristers had no contract with their clients. Accordingly, in Rondel v Worsley [1969] 1 A.C. 191 the House of Lords adopted a new rule—confined to acts concerned with the conduct of litigation—based on its view of the requirements of the public interest in the administration of justice. This immunity also extended to solicitors. The House of Lords justified the immunity by reference to the duty owed by advocates to the court, the analogy of the privilege enjoyed by witnesses in legal proceedings, the dangers of collateral challenge and the cab rank rule.
In Saif Ali v Sydney Mitchell & Co. (a firm) [1980] A.C. 199 the House of Lords considered the scope of the immunity established in Rondel v Worsley. The majority concluded that the immunity extended, so far as out of court activity was concerned, only to work which was so “intimately connected” with the conduct of the case in court as to amount to a decision as to how it should be conducted at the hearing. In that case, a barrister's failure to advise on the joinder of additional parties fell outside the scope of the immunity. There was no challenge to the authority of Rondel v Worsley itself.
In 1998 in Hall v Simons the Court of Appeal heard three appeals concerning claims in professional negligence against solicitors in respect of advice they had given (or had not given) in relation to the settlement of actions. In each case, the judge at first instance had upheld the plea of advocates' immunity from suit and struck out the claim as an abuse of process of the court. The Court of Appeal heard the three appeals together. That Court was bound by Rondel v Worsley and Saif Ali and allowed all three appeals on the basis, entirely consistent with those authorities, that the alleged negligence was outside the scope of the immunity. The appeals against the decisions of the Court of Appeal came before a House of Lords comprising seven Law Lords. Following a fundamental attack by the respondents on the very existence of the immunity, the House of Lords considered whether the immunity could any longer be justified. Without challenging the authority of Rondel v Worsley, the House of Lords concluded (unanimously) that circumstances had changed to such an extent since 1969 that the public interest in the administration of justice no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of civil proceedings. It also held (by a majority) that the public interest no longer required that advocates enjoy immunity from suit for negligence in the conduct of criminal proceedings.
In these proceedings its been submitted both by Mr. Jones on behalf of the Claimant and by Mr. Fenwick on behalf of the Defendant that the abolition of the immunity of advocates by the House of Lords in Hall v Simons has only prospective effect. It is necessary to consider this submission in some detail.
The general rule is that when judges state what the law is, their decisions have a retrospective effect. In Kleinwort Benson Ltd. v Lincoln City Council [1999] 2 A.C. 349 Lord Goff considered (at pp. 378–9) that that is inevitable not only in relation to the particular case before the court, in which the events must have occurred some time before the judge's decision is made, but also in relation to other cases in which the law as so stated will in future fall to be applied. In Deutsche Morgan Grenfell Group plc. v. Inland Revenue Commissioners [2006] UKHL 49; [2006] 3 WLR 781 Lord Hoffmann expressed the matter in the following terms:
“One [question] is whether judges change the law or merely declare what it has always been. The answer to this question is clear enough. To say that they never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude....
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