Barratt v Ansell (t/a as Woolf Seddon); Arthur JS Hall & Company v Simons

CourtHouse of Lords
JudgeLORD STEYN, LORD BROWNE-WILKINSON, LORD HOFFMANN, LORD HOPE OF CRAIGHEAD, LORD HUTTON, LORD HOBHOUSE OF WOODBOROUGH, LORD MILLETT
Judgment Date20 Jul 2000
JurisdictionEngland & Wales

[2000] UKHL J0720-1

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Arthur J.S. Hall & Co.
(Appellants)
and
Simons (A.P.)
(Respondent)
Barratt
(Respondent)
and
Ansell

And Others

(Trading As Woolf Seddon (A Firm)

(Appellants)
Harris
(Respondent)
and
Scholfield Roberts and Hill
(Appellants)

(Conjoined Appeals)

LORD STEYN

My Lords,

1

There are three appeals before the House from orders of the Court of Appeal in a building case and in two cases involving family proceedings. Clients raised claims in negligence against firms of solicitors. In response the solicitors relied on the immunity of advocates from suits in negligence. In all three cases judges at first instance ruled that the claims against the solicitors were unsustainable. The circumstances of these cases and the disposals are set out in the judgment of the Court of Appeal given by Lord Bingham of Cornhill, L.C.J.: Arthur J.S. Hall & Co. (a firm) v. Simons [1999] 3 W.L.R. 873. In effect the Court of Appeal ruled in all three cases presently before the House that the claims were wrongly struck out. The solicitors now appeal. The results of the appeals are of great importance to the parties. But transcending the importance of the specific issues arising on the appeals there are two fundamental general questions namely:

(1) Ought the current immunity of an advocate in respect of and relating to conduct of legal proceedings as enunciated by the House in Rondel v. Worsley [1969] 1 A.C. 191, and explained in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, to be maintained in England?

(2) What is or ought to be the proper scope in England of the general principle barring a collateral attack in a civil action on the decision of a criminal court as enunciated in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529.

2

The position in Scotland was not the subject matter of argument on these appeals.

3

These questions before the House affect both branches of the legal profession. Your Lordships have had the benefit of careful arguments from three sides. First, by counsel for the appellant solicitors who were supported by the Solicitors Indemnity Fund. Secondly, by counsel for the Bar Council who was given leave to intervene and played a particularly helpful part in the appeal. Thirdly, by counsel for the individual litigants who put forward the contrary argument. Having studied the detailed written arguments and heard the oral arguments of counsel for the appellants, the intervenors, and the respondents, your Lordships are now in as good a position to form a judgment on the principal issues as is achievable.

4

It is necessary to explain the scheme of my opinion. There is a direct link between the two general questions. How the law deals with the problem of re-litigation of matters already decided, as identified in the Hunter case, is an important aspect of any re-consideration of the immunity of advocates. It will be necessary to examine the two issues together. Secondly, although the cases before the House involve actions against solicitors and not against barristers, the reality is that the immunity of barristers is of longer standing and underpinned to some extent by arguments not available to solicitors. It will therefore be convenient first to concentrate by and large on the position in regard to barristers and then to consider whether the conclusions arrived at also apply to solicitors.

5

The Existing Immunity of Barristers

6

For more than two centuries barristers have enjoyed an immunity from actions in negligence. The reasons for this immunity were various. It included the dignity of the Bar, the "cab rank" principle, the assumption that barristers may not sue for their fees, the undesirability of relitigating cases decided or settled, and the duty of a barrister to the court: Roxburgh, " Rondel v. Worsley: The Historical Background" (1968) 84 L.Q.R. 178; and Roxburgh, "Rondel v. Worsley: Immunity of the Bar" (1968) 84 L.Q.R. 513. In 1967 when the House decided Rondel v. Worsley the dignity of the Bar was no longer regarded as a reason which justified conferring an immunity on advocates whilst withholding it from all other professional men. In Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 the rule was established that irrespective of contract, if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise: at pp. 502-503. The fact that the barrister did not enter into a contract with his solicitor or client ceased to be a ground of justification for the immunity. Nevertheless, in a unanimous decision the House in Rondel v. Worsley [1969] 1 A.C. 191 upheld the ancient immunity on considerations of "public policy [which are] not immutable:" at p. 227B, per Lord Reid. It is worth recalling that in that case the appellant had obtained the services of the respondent to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence. It is undoubtedly right, as counsel for the solicitors submitted and nobody disputed, that the principal ground of the decision is the overriding duty of a barrister to the court. The House thought that the existence of liability in negligence, and indeed the very possibility of making assertions of liability against a barrister, might tend to undermine the willingness of barristers to carry out their duties to the court. Lord Morris of Borth-y-Gest encapsulated the core idea by saying (at p. 251D): "It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to the client." Other members of the Appellate Committee expressed similar views: see p. 231E, per Lord Reid; pp. 272B-273F, per Lord Pearce; pp. 283E-283G, per Lord Upjohn; and p. 293E, per Lord Pearson. This factor is the pivot on which in 1967 the existence of the immunity hinged. But for it the case would probably have been decided differently. There were however supporting reasons. Perhaps the most important of these was the undesirability of relitigating issues already decided: see p. 230B-F, per Lord Reid and pp. 249A-250B, per Lord Morris of Borth-y-Gest. Another factor to which some weight was attached was the "cab rank" rule, which imposed (and still imposes) upon barristers, but not solicitors, the obligation to accept instructions from anyone who wishes to engage their services in an area of the law in which they practised. In the year after Rondel v. Worsley was decided Sir Ronald Roxburgh (formerly Mr. Justice Roxburgh) said that "the pressures for putting barristers on the same footing as other professional men … are already strong, and may grow stronger:" 84 L.Q.R. 513, 527.

7

Eleven years later in Saif Ali v. Sydney Smith Mitchell & Co. [1980] A.C. 198 the House revisited this topic. On this occasion the immunity established in Rondel v. Worsley was not challenged and was not directly in issue. The existence of the debate on the merits of the immunity was not re-opened. The terrain of the debate centred on the scope of the immunity. Except for Lord Diplock, the members of the House accepted the rationale of Rondel v. Worsley, which Lord Wilberforce said, at p. 213C, was that "barristers … have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss." About a barrister's overriding duty to the court Lord Diplock observed, at p. 220C-E:

"The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. 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 salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered."

8

Lord Diplock did, however, think that the immunity could be justified on two other grounds. The first is the analogy of the general immunity from civil liability which attaches to all persons in respect of the participation in proceedings before a court of justice, namely judges, court officials, witnesses, parties, counsel and solicitors alike: p. 222A-C: The second was the public interest in not permitting decisions to be challenged by collateral proceedings: pp. 222D-223D. There matters rested for a time.

9

The next development was the introduction by statute of a power enabling the court to make wasted costs orders against legal practitioners: see section 51 of the Supreme Court Act 1981 as substituted by section 4 of the Courts and Legal Services Act 1990. Not surprisingly barristers are occasionally guilty of wholly unjustifiable conduct which occasions a...

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