Saif Ali v Sydney Mitchell & Co

A barrister’s immunity from negligence for work outside court is confined to work so intimately connected with the conduct of the cause in court that it is fairly a preliminary decision affecting how the hearing will be conducted. The protection extends no further than the administration of justice requires.

Advice about whom to sue, and a failure to add defendants before limitation expired, fell outside that immunity even though pleadings were settled accordingly. Outside the protected area, a barrister owes the ordinary duty to exercise reasonable care and skill. An erroneous professional judgment does not itself establish negligence. The established immunity for advocacy in court remains.

Saif Ali v Sydney Mitchell & Co arose from a road accident in which the claimant passenger had a strong damages claim. His solicitors instructed a barrister to advise and settle proceedings. Only the insured vehicle owner was sued. The driver and the claimant’s friend, who had driven the vehicle in which the claimant travelled, were not joined before the limitation period expired.

The claimant later sued his solicitors for negligence. They brought third-party proceedings against the barrister, alleging negligent delay, failure to identify a conflict of interest, and failure to advise that additional defendants should be joined. For the strike-out application, negligence, causation, damage and an entitlement to contribution or indemnity had to be assumed.

A District Registrar struck out the third-party proceedings. Kerr J restored them, but the Court of Appeal ordered them struck out on the ground of barristers’ immunity. The central issue was whether immunity for courtroom advocacy extended to the alleged pre-trial advice and omissions.

1. Disposition. The House allowed the appeal by a majority of three to two. Lord Wilberforce, Lord Diplock and Lord Salmon held that the alleged acts and omissions were outside the barrister’s immunity. The Court of Appeal’s order striking out the third-party proceedings was reversed. No finding was made that the barrister had in fact been negligent.
2. Boundary of pre-trial immunity. Lord Wilberforce gave the principal majority formulation, which Lord Diplock and Lord Salmon also adopted. Pre-trial work is immune only where it is so intimately connected with the conduct of the cause in court that it can fairly be described as a preliminary decision affecting how the cause will be conducted at the hearing. The final reference to necessity for the administration of justice explains and restrains the protection; it is not a separate limb of the test. The formulation in Rees v Sinclair [1974] 1 NZLR 180 was applied.
3. Earlier authority. The majority retained the established immunity recognised in Rondel v Worsley [1969] 1 AC 191 for the conduct of a case in court. Its observations about work outside court were expressly recognised as obiter and were confined. General references to the conduct and management of litigation did not establish immunity for every pleading, advice or other task connected with litigation.
4. Policy. Per Lord Wilberforce and Lord Diplock, immunity is an exception justified by public policy, including counsel’s duty to the court, protection of participation in judicial proceedings and avoidance of collateral relitigation. Lord Diplock referred to section 13 of the Civil Evidence Act 1968 as an analogy for the policy against collateral attacks on judicial determinations. Those considerations did not justify blanket immunity for reflective advisory work outside court.
5. Application and ordinary duty. Per Lord Wilberforce, Lord Diplock and Lord Salmon, advice about whom to sue, the failure to add defendants before limitation expired, and the settling of pleadings in accordance with that advice were not intimately connected with the conduct of a hearing. Outside the immunity, the ordinary duty to exercise reasonable professional care and skill applies. A barrister is not liable merely because advice or judgment later proves wrong.
6. Other opinions. The majority considered that a solicitor acting as an advocate enjoys the same courtroom immunity as a barrister. Lord Russell of Killowen and Lord Keith of Kinkel dissented. They would have extended immunity to all work connected with litigation, including advice on parties, settlement and evidence, and would have dismissed the appeal.

1. House of Lords. By a majority of three to two, allowed the appeal, reversed the Court of Appeal’s strike-out order and permitted the third-party proceedings to continue.
2. Court of Appeal. Allowed the appeal from Kerr J and struck out the third-party proceedings on the ground that the barrister was immune from suit.
3. High Court, Kerr J. Restored the third-party proceedings after they had been struck out by the District Registrar.
4. District Registrar. Struck out the solicitors’ third-party claim against the barrister.