Arthur J S Hall & Co v Simons

Claims against legal advisers following an earlier judgment or court-approved settlement must first be examined as possible abusive collateral challenges. The court must consider the nature and effect of the earlier decision, the basis of the later negligence claim, and any justification for reopening the matter.

Forensic immunity is exceptional. It protects advocates only in respect of work sufficiently connected with the conduct of litigation and justified by public policy. There is no general immunity for advice to settle, and immunity does not depend solely on when or where advice was given. Solicitors acting otherwise than as advocates are not protected merely because their work contributed to a consent order.

Four appeals concerned negligence claims against solicitors who had acted in earlier litigation or matrimonial ancillary-relief proceedings ending in settlements and consent orders.

In Hall v Simons, a county court judge held that solicitors were immune from allegations concerning preparation and settlement of building litigation. In Barratt v Woolf Seddon and Cockbone v Atkinson, Dacre & Slack, claims arising from matrimonial consent orders were struck out on immunity grounds. In Harris v Scholfield Roberts & Hill, the High Court restored a negligence claim concerning inadequate preparation and advice before a consent order.

The central issues were whether the claims constituted abusive collateral attacks on earlier orders and whether forensic immunity extended to solicitors’ acts and omissions connected with settlement.

1. General approach. The court held that the first question on an application to strike out a negligence claim against legal advisers is whether it constitutes an abusive collateral challenge to an earlier court decision. The relevant matters are the nature and effect of the earlier judgment, the nature and basis of the later claim, and any grounds relied upon to justify the challenge.
2. Relative weight of decisions. A criminal conviction and a judgment after a contested civil trial carry greater weight than an interlocutory order or consent order. A court-approved consent order nevertheless involves judicial authority and cannot be lightly disregarded. A claimant must ordinarily explain why the original order was not challenged in the original proceedings.
3. A later claim concerning a court-approved settlement will ordinarily be abusive unless the alleged breach of duty deprived the claimant of a reasonable opportunity to appreciate that better terms were available, or placed the claimant in a position where a significantly less advantageous settlement had to be accepted. Post-settlement remorse is insufficient.
4. Forensic immunity. Rondel v Worsley and Saif Ali v Sydney Mitchell & Co remained binding. Any extension beyond the core immunity had to be rigorously scrutinised and clearly justified by public policy. The immunity was available only to a person acting as an advocate in respect of the relevant act or omission. Section 62 of the Courts and Legal Services Act 1990 did not extend immunity to solicitors acting otherwise than as advocates.
5. There was no general rule that advice to settle was immune or non-immune. The court had to examine the advice, the reason for it and the particular complaint. Advice on strategic decisions which would have been immune if given during trial might attract protection when given beforehand. Advice on legal strength, admissibility, valuation or deficient preparation would not automatically do so. Doubt was to be resolved against immunity.
6. Disposition. The appeals in Hall v Simons, Barratt v Woolf Seddon and Cockbone v Atkinson, Dacre & Slack were allowed. The claims were to proceed, subject to the blackmail allegation in Cockbone remaining struck out. The appeal in Harris v Scholfield Roberts & Hill was dismissed and that claim was to proceed.

• Court of Appeal (Civil Division): appeals in Hall v Simons, Barratt v Woolf Seddon and Cockbone v Atkinson, Dacre & Slack allowed; appeal in Harris v Scholfield Roberts & Hill dismissed.
• Lower courts: preliminary strike-out or immunity rulings were set aside or varied. The relevant negligence actions were directed to proceed to trial, except for the blackmail allegation in Cockbone.