Solicitor's Negligence

Advocate's immunity from suit - no longer required in civil or criminal proceedingsArthur J S Hall & Co (a firm) v Simons; Barratt v Woolf Seddon (a firm); Harris v Scholfield Roberts & Hill (a firm): HL (Lord Steyn, Lord Browne Wilkinson, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Millett): 20 July 2000

In each case, clients raised claims in negligence against their former solicitors.

The solicitors, relying on the advocate's immunity from suit in negligence, successfully applied to have the claims struck out.

The Court of Appeal ruled [1999] 3 WLR 873 that the claims did not invoke the immunity and should be reinstated.

The solicitors appealed.

Jonathan Sumption QC, Jeffrey Bacon and Sian Mirchandani (instructed by Weightmans, Liverpool) for the solicitors.

Andrew Edis QC, Peter Duckworth, Nicholas Bowen and David Balcombe (instructed by Hill Dickinson, Liverpool) for the clients.

Peter Scott QC, Clare Montgomery QC, David Perry and Mark Simpson (instructed by Biddle) for the Bar Council.

Held, dismissing the appeals, that in the light of developments since Rondel v Worsley [1969] 1 AC 191, it was appropriate to reconsider the whole issue of advocates' immunity from suit; that as the immunity was a judge-made rule it was open to the judges to say that the grounds for maintaining it no longer existed; that the basic rule was that there should be a remedy for a wrong and any exception denying such a remedy required sound justification in the public interest; that none of the reasons used to justify the immunity, such as the 'cab rank' rule, the analogy with the immunities of witnesses and the duty of the advocate to the court, had sufficient weight to sustain the immunity in the present day; that, in particular the principles of res judicata, issue estoppel and abuse of process were sufficient to prevent any action being maintained which would be unfair or bring the administration of justice into disrepute; that, on existing principles, it was a prima facie abuse of process for proceedings to be brought which asked a civil court to decide that a subsisting criminal conviction was wrong and ordinarily such an action would be struck out; that (Lord Hope of Craighead, Lord Hutton and Lord Hobhouse of Woodborough dissenting) consequently the advocate's immunity from suit was not required to prevent collateral attacks on criminal decisions; and that, accordingly, the public interest in the administration of justice no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of litigation.

(WLR)