High Court
| Author | JA Coutts |
| DOI | 10.1177/002201839806200101 |
| Published date | 01 February 1998 |
| Date | 01 February 1998 |
| Subject Matter | Article |
HIGH
COURT
PUBLIC POLICY
AND
RE-LITIGATING ACRIMINAL TRIAL
Acton v Graham Pearce and Co
A solicitor was charged with obtaining money by deception, it being
alleged that he had sent forms to the Law Society for payment thereon,
knowing that they contained false information. His defence was that he
had entrusted the working of the Law Society's scheme to a member of
his staff and had accepted the information presented to him by her. On
being charged, he retained for his defence a firm of solicitors who
eventually became the defendants to an action which he brought against
them for mismanaging his affairs: see Acton v Graham Pearce and Co
[1997]
3 All ER 909. The police had searched his office and had seized a
number of files, but in the committal papers were memoranda in which
the employee to whom the Law Society's scheme had been entrusted in
the office had pointed out that the claim made for payment could not
legally be made. The defendant to the criminal charge told his solicitors
that
he thought the memoranda were false (as was demonstrated by the
fact that they were
not
taken away by the police at the time of the raid).
He also told his solicitors that the employee in question had been forced
to leave her previous employers. He therefore suggested that the
memoranda should be submitted to a document expert and that the
employee's former employers should be asked to make a statement.
It
is
clear that at the trial the authenticity of the memoranda must have been
the touchstone by which the jury could assess the truth of the defendant's
explanation. But his solicitors had taken neither of the steps which he had
suggested, nor had they sought the opinion of counsel about either matter.
Indeed, counsel volunteered the suggestion that the solicitors should
proceed as the defendant had asked, but still nothing was done. The
defendant was convicted and sentenced to nine months' imprisonment;
but, on appeal against conviction and sentence, both were quashed,
principally on the strength of the evidence of a document examiner to the
effect that the memoranda could not have been produced on the date
which it bore. This evidence, the Court of Appeal held, went to the
employee's credit, since it showed her to be
'a
scheming liar and forger'.
The action in negligence based on the solicitors' failure to carry out the
instructions they received before and at the trial was defended on two
grounds:
(l)
that any omission on their part was so intimately connected
with the conduct of the criminal trial in court that it was covered by
'advocates' immunity'; and (2) that public policy prevented the re-litigating
of
the criminal trial.
In the High Court, Chadwick Jaccepted the general principles which
were the starting-points of each of these two defences. First, he agreed
that an advocate enjoys immunity in respect of out of court work which
is so intimately connected with the conduct of the case in court that it is
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