Arthur JS Hall & Co v Simons (Barratt v Woolf Seddon, Cockbone v Atkinson Dacre & Slack, Harris v Scholfield Roberts & Hill)

Advocates in England, whether barristers or solicitor advocates, no longer have immunity from claims by clients for negligence in conducting civil proceedings. A majority also declared that the immunity should end in criminal proceedings, although no criminal claim was before the House. The advocate’s overriding duty to the court remains; genuine compliance with it cannot constitute negligence.

A negligence action which reopens an earlier decision is not automatically abusive. The court must ask whether relitigation would be manifestly unfair or would bring the administration of justice into disrepute. A claim requiring a subsisting criminal conviction to be shown wrong will ordinarily be struck out, subject to exceptional cases. Once the conviction is set aside, that public-policy bar normally falls away.

Three clients brought negligence claims against firms of solicitors. Mr Simons alleged that his solicitors had allowed building litigation to continue when they should have advised an earlier settlement. Mr Barratt and Mrs Harris alleged negligent advice concerning settlements in matrimonial proceedings. The allegations had not been tried on their merits.

The judges at first instance held that the claims were barred by advocates’ immunity. The Court of Appeal, whose decision is reported at [1999] 3 WLR 873, held that the claims had been wrongly struck out because the alleged conduct fell outside the existing immunity. The solicitors appealed.

The House considered whether the common-law immunity recognised in Rondel v Worsley should remain and whether the claims constituted abusive collateral challenges under the principle in Hunter v Chief Constable of the West Midlands Police.

1. Disposition. The House unanimously dismissed all three appeals. The solicitors were not immune from the claims, which could proceed without any determination that the allegations were well founded.

2. Civil proceedings. All seven Law Lords agreed that advocates’ immunity could no longer be justified in civil proceedings. Lord Steyn and Lord Hoffmann delivered the principal reasons. The overriding duty to the court remained fundamental, but liability for genuine negligence would not undermine it. Compliance with that duty could not itself be negligent. Experience of wasted-costs jurisdiction, modern summary procedures and comparable professions did not support the predicted harm to advocacy. The difficulty of defining work “intimately connected” with proceedings provided a further reason to end the immunity.

3. Criminal proceedings. Lord Steyn, Lord Browne-Wilkinson, Lord Hoffmann and Lord Millett formed a majority declaring that the immunity should also end in criminal cases. They considered that abuse-of-process principles, criminal appeals and summary disposal of hopeless claims adequately protected the administration of justice. Lord Hope and Lord Hutton would have retained the core immunity in criminal cases because of the advocate’s public function and the risks of defensive advocacy and vexatious litigation. Lord Hobhouse considered that the criminal question was unnecessary to these appeals and should await a case in which it directly arose.

4. Collateral challenge. Lord Hoffmann, with majority support, explained that Hunter v Chief Constable of the West Midlands Police [1982] AC 529 established a flexible abuse-of-process jurisdiction. Relitigation is abusive where it would be manifestly unfair or would bring the administration of justice into disrepute. It is not automatically abusive merely because an earlier judgment is questioned. A civil claim which requires a subsisting criminal conviction to be shown wrong will ordinarily be struck out, but exceptional cases remain possible. Once the conviction has been set aside, that particular public-policy objection normally disappears. The present civil and matrimonial claims were neither manifestly unfair nor attacks upon the judicial process.

5. Statutory context. Per Lord Steyn and Lord Hoffmann, section 62 of the Courts and Legal Services Act 1990 merely gave non-barrister advocates the same immunity as barristers. It made their immunity track the common law and did not confer parliamentary endorsement on the immunity recognised in Rondel v Worsley [1969] 1 AC 191. The House could therefore reconsider the judge-made rule as public policy changed.

1. House of Lords: The three appeals were dismissed unanimously. The solicitors were not entitled to immunity from the pleaded negligence claims.
2. Court of Appeal: In the decision reported at [1999] 3 WLR 873, the court held that the alleged conduct fell outside advocates’ immunity and that the claims had been wrongly struck out.
3. First instance: In each action, the judge held that the negligence claim against the solicitors was unsustainable and struck it out. No separate citation is stated.