Arthur J S Hall & Co v Simons

Claims against lawyers arising from allegedly negligent conduct of earlier proceedings should first be examined as possible abusive collateral challenges to the earlier judgment or order. The court must consider the nature and effect of the earlier decision, the basis of the later claim, and any justification advanced for reopening the matter. A consent order approved by the court carries substantial weight, but a later negligence claim may proceed where the alleged breach deprived the claimant of a reasonable opportunity to appreciate that better terms were available or placed the claimant in a significantly worse settlement position.

Forensic immunity is exceptional. It applies only to persons acting as advocates in respect of the relevant act or omission, and there is no general rule governing advice to settle. Immunity depends on the advice, its purpose and the complaint made.

Four appeals concerned claims against solicitors arising from earlier litigation or matrimonial ancillary-relief proceedings that had ended in settlements or consent orders. In Hall v Simons, the solicitor-client dispute followed a settlement made immediately before trial. In Barratt v Woolf Seddon, Cockbone v Atkinson Dacre & Slack and Harris v Scholfield Roberts & Hill, the claims followed consent orders in ancillary-relief proceedings.

The first-instance judges had struck out or dismissed claims on grounds of forensic immunity, abuse of process, or both. The central issues were the scope of forensic immunity after Rondel v Worsley and Saif Ali v Sydney Mitchell & Co, and the application of the collateral-attack principle in Hunter v Chief Constable of the West Midlands.

1. General approach. The court held that the first question is whether a later negligence claim amounts to an abusive collateral challenge to an earlier judgment or order. The relevant considerations are the nature and effect of the earlier decision, the nature and basis of the later claim, and any grounds relied on to justify the challenge.
2. Criminal convictions and judgments after contested civil trials carry greater weight than interlocutory orders or consent orders. A challenge to a court-approved consent order may nevertheless proceed where the alleged breach deprived the claimant of a reasonable opportunity to appreciate that better terms were available, or placed the claimant in a significantly less advantageous settlement.
3. Forensic immunity. The core immunity in Rondel v Worsley and Saif Ali v Sydney Mitchell & Co remained binding. Any extension had to be narrowly and rigorously justified by public policy. The immunity attached 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.
4. There was no general rule that advice to settle was immune, whether given at court, during a hearing or earlier. The court had to examine the advice, the reason for it and the complaint. Advice about the strength or value of a claim, legal admissibility or deficient research would not ordinarily attract immunity merely because settlement followed.
5. Appeals. In Hall v Simons, the solicitors’ alleged failures did not constitute an abusive collateral challenge and were not acts done as advocates. The appeal was allowed and a new trial ordered. The appeals in Barratt v Woolf Seddon and Cockbone v Atkinson Dacre & Slack were allowed. In Cockbone, the blackmail allegation remained struck out. The appeal in Harris v Scholfield Roberts & Hill was dismissed.

• 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. The orders striking out or dismissing the claims were discharged or set aside, subject to the specified exception in Cockbone.
• Lower courts: first-instance decisions had struck out or dismissed the relevant claims on grounds including forensic immunity and abuse of process. In Harris, Toulson J had reinstated the claim against the first solicitors, and that decision was upheld.