Claimants issuing proceedings against solicitors – Solicitor relying on immunity of advocates in regard to any negligent conduct – Whether advocates’ immunity from suit still appropriate – Claimants’ proceedings struck out as unsustainable – Claimants’ appeal allowed – Solicitors’ appeal to House of Lords dismissed
In each of the three cases before the House of Lords the clients were dissatisfied with the outcome of their litigation and, in particular, with the terms of the settlement. They alleged that their solicitors were negligent in regard to things that they did, or omitted to do, outside the courtroom. The solicitors in each case relied on the immunity of advocates in regard to the allegedly negligent conduct. All the claims against the solicitors were struck out on the basis that they were unsustainable. The claimants appealed successfully (see [1999] 3 WLR 873). The solicitors appealed.
Held: The appeal was dismissed.
1. In general the law provided a remedy in damages for a person who had suffered injury as a result of professional negligence, and thus any exception that denied such a remedy required a sound justification. The reasons that supported advocates’ immunity, inter alia, the “cab rank rule”, the analogy with the immunity of witnesses, the duty of the advocate to the court, the public policy against relitigating decisions of the court and the duty of a barrister to the court, no longer carried the necessary degree of conviction to justify depriving all clients of a remedy for negligence. The most substantial of the arguments in support of immunity was that it might be contrary to public interest for a court to retry a case that had been decided by another court, in particular in relation to criminal trials where a defendant, after failing to appeal successfully, might attempt to challenge their convictions by suing their advocates. However, such a challenge would ordinarily be struck out as an abuse of process and where a conviction was set aside after a successful appeal, the action might, nevertheless, be struck out as unsustainable. The principles of res judicata, issue estoppel and abuse of process would be adequate to cope with the risk of challenges to civil decisions.
2. Lord Hope of Craighead, Lord Hutton and Lord Hobhouse of Woodborough agreed that immunity from suit was no longer required in relation to civil proceedings, but they dissented on the ground that it was still required in the public interest in the administration of justices relating to criminal proceedings.
Jonathan Sumption QC, Jeffrey Bacon and Sian Mirchandani (instructed by Weightmans, of Liverpool) appeared for the solicitors; Andrew Edis QC, Peter Duckworth, David Balcombe and Nicholas Bowen (instructed by Hill Dickinson, of Liverpool) appeared for the clients; Peter Scott QC, Clare Montgomery QC, David Perry and Mark Simpson (instructed by Biddle & Co) appeared for the Bar Council.
Thomas Elliott, barrister