The case of Hall v Simons has ended advocates' immunity from suit.
Patrick Gaul looks at the issues involved and what the future holdsThe case of Hall v Simons which was before the House of Lords last week has brought an end to advocates' immunity from suit.
Dissatisfied litigants can now bring proceedings against their solicitors and barristers for negligence in the conduct of all civil and criminal proceedings.The Law Lords also decided that the principle of collateral attack should be applied in restricted circumstances.
It is now really only going to be applicable where the claim is in respect of the conduct of a criminal case which has led to a conviction which has not been overturned.There will be much debate about Hall v Simons.
It will have significant implications for the relationship between solicitors and barristers and for the conduct of solicitors' negligence claims.The Solicitors Indemnity Fund (SIF) decided to appeal three of the four cases that had been heard in the Court of Appeal.
There was still immunity from suit but only for advocates, and apart from advocacy itself, no one was quite sure what acts came under the umbrella of immunity.In addition, the Appeal Court had said that most claims in negligence arising from the conduct of the case which led to the judgment or order of the court would be abusive, but all four appeals were lost and there was no real guidance as to how the concept of abusive collateral attack could apply in the vast majority of solicitors' negligence claims.The problem was a real one because a lot of claims against solicitors arise out of settlements at the door of court and court approved orders.
Usually at the end of litigation somebody is unhappy and solicitors are often the easy target.The abolition of immunity from suit for advocates is a radical step by the House of Lords.
It has put solicitors on an equal footing with barristers.
We can now deal sensibly with apportionment of liability in claims for negligence arising from the conduct of litigation.
Counsel's immunity in many cases in the past gave rise to artificial arguments and unfair results.The judgment removes two potential weapons in the fight against unmeritorious litigation, but the House of Lords has significantly encouraged the use of the applications for summary dismissal under rule 24.2.
Lord Justice Hoffman has given his backing to the case of Swain v Hillman (TLR 14 November 1999).
We must now seek to encourage judges to look critically at the merits of claims brought by litigants suffering post-settlement remorse, to use Lord Justice Bingham's expression.The House of Lords has reviewed more than two centuries of history and two recent authorities -- Rondel v Worsley and Saif Ali v Sydney Mitchell -- and decided that the public interest no longer requires immunity from suit for advocates.There was a good deal of argument in the House of Lords about the effect of Osman and article 6 of the European Convention on Human Rights.
This decision lays any argument about lawyers' immunity to rest.
In fact, there is relatively little discussion about human rights in the judgments and it is unlikely to have any great impact on the immunities of others.All three appeals were rejected by the House of Lords, but in this case the principles were always more important.
This is one of those rare cases where the judgment should actually lead to the law becoming clearer and easier to apply in practice.