Not Yet Dead: Wright v Paton Farrell and Advocates' Immunity in Scotland
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00647_1.x |
basis, and the use of that law to attempt to stop the state achieving its foreign
policy objectives. For the latter, as Lord Ho¡mann suggests, the courts or bal lot
box are the reasonable and legitimate avenues which those who are disgruntled
with British foreign policy should take.Third, while itdoes not violate the prin-
ciple of nullum crimen sine lege for the reasons outlined above, it does deny the nar-
row interpretation accepted by the House which was based upon the lex scripta
requirement. This might seem, for the reasons expressed by Berman, unjust
against standards of procedural fairness.
The third option, which was the House of Lords’ choice, was to hold that the
source of new criminal law (since 1973) must be legislation. But this, as has been
seen, required the jettisoningof either the principleof incorporation or automatic
transformation wherebycustomary international law springs up as valid English
law from the point the norm coalesces in state practice.
In conclusion, then, it could be said that Lord Ho¡mann is wrong to say that
the approach they took and the non-justiciability approach ‘may be simply
another way of putting the same point.’ By taking the non-justiciability line, the
House would have avoided the very di⁄cult questions which they have, to their
credit, dealt with in this Opinion.The problem is that their answer meant that a
well-established norm in English constitutional law which has for many been a
mark of this ‘civilized nation’ for so long, had to be discarded.
Not Yet D ead: Wr i g h t vPato n Farrell and Advocates’
Immunity in Scotland
Greg Gordon
n
This article examines the recent Inner House case ofWr i g h t vPaton Farrell.
1
The
case is signi¢cant insofar as it discusses the test for causation of loss, and for its
extensive dicta on advocates’
2
immunity from suit. The article argues that
although the causation issue appears at ¢rst sight to have been determined on a
case-speci¢c pleading point, on closer analysis a more fundamental question
emerges: can a claimant who sues his orher trial advocate on the basis that an error
made undermined the client’s credibility in the eyes of the arbiter of fact ever
establish causation? The author will argue that the rather unyielding approach
endorsed in Wr i g h t might well be out of sympathy with recent developments in
this branchof the law.The article also considers the di¡erent approaches adopted
n
School of Law,University of Aberdeen.
1 2006SLT269(‘Wr i g h t ’).
2 Throughout this paper,‘advocate’ is a reference to anyone carrying out the function of advocacy.
Where a reference to a member of the facultyof advocates is intended, that phrase or ‘couns el’ is
used.
Greg Gordon
471
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(3) MLR 458^483
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