Forensic Immunity Post‐Osman

DOIhttp://doi.org/10.1111/1468-2230.00321
AuthorRosalind English
Publication Date01 Mar 2001
Forensic Immunity Post-Osman
Rosalind English*
Barristers and solicitor advocates are now liable in negligence for their conduct of
a case in court. Not a very radical proposition. But it took four days of debate
before a specially convened panel of seven Law Lords to establish that the rule in
Rondel vWorsley was no longer relevant to modern legal conditions. Forensic
immunity is dead. May it rest in peace.
In Hall vSimons
1
the House of Lords concluded that the administration of
justice would not be brought into disrepute by the threat of litigation against
advocates. Courts have greater powers than ever before to stop vexatiousclaims in
their tracks, through their powers of strike out
2
and their own inherent jurisdiction
to prevent relitigation that would amount to abuse of the process of the court.
3
The
ruling was only unanimous to the extent of abolishing forensic immunity for civil
trials. Lords Browne Wilkinson, Hoffman, Steyn and Millett thought that immunity
could go altogether. Lords Hutton, Hobhouse and Hope took the view that defence
lawyers still need a core immunity in respect of their conduct of criminal
proceedings.
In the event, the Lords based their judgment on relatively narrow grounds – the
evaporation of most of the justifications for forensic immunity since Rondel was
decided, and the scope of Hunter – but the arguments debated in the course of the
hearing covered a range of issues, from the compatibility of the Caparo test for the
duty of care with Article 6 ECHR, to the continued existence of the cab-rank rule
and the precise nature of the duty owed by the advocate to the court and his client.
What emerged from the hearing, although the judgments are silent on this, were the
first signs of conflict between the House of Lords and the Court of Human Rights
in Strasbourg as to the proper application of Convention rights to principles of
domestic law.
First, it is worth considering briefly the arguments and the judgment itself.
Forensic immunity
The rule of immunity is encapsulated in the landmark case of Rondel vWorsley,
4
which confirmed that forensic immunity was required for the following:
(1) to prevent relitigation, otherwise than on appeal, of issues already concluded
adversely to the plaintiff by court decision;
(2) to ensure that advocates perform their duty to the court as fearlessly and
independently as possible, unimpeded by apprehension of actions against them
by their clients;
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
300
* Barrister.
1 [2000] 3 WLR 543. The author gave comparative law assistance to counsel for the respondent.
2 Under CPR r 24.2, the plaintiff must have ‘a real prospect of succeeding on the claim.’
3 Set out in Hunter vChief Constable of West Midlands Police [1982] AC 529.

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