Arthur J.S. Hall & Co. v. Simons; Barratt v. Ansell and Others; Harris v. Scholfield Roberts and Hill (conjoined appeals)

The House considered whether the long‑standing immunity of advocates from suits in negligence (as formulated in Rondel v Worsley and considered in Saif Ali v Sydney Mitchell) remained justified. The Court reviewed the traditional rationales for the immunity (divided loyalty/duty to the court, the cab‑rank rule, witness‑type immunities and the public policy against collateral attack) and contemporary developments (Civil Procedure Rules, wasted costs jurisdiction, statutory provisions such as s.62 Courts and Legal Services Act 1990, and comparative experience).

Holding that those policy foundations no longer sustain the immunity in civil litigation, the House dismissed the appeals and removed the immunity for advocates in civil proceedings. The Law Lords were divided on criminal advocacy: some considered that the immunity should continue for criminal trials because of the particular public‑interest concerns about finality, the fairness of trials and the risk of defensive advocacy, while others would abolish it there too.

These conjoined appeals arose from claims by clients that their solicitors were negligent in advising or conducting litigation and settlements. The solicitors relied on the historic immunity of advocates from negligence actions. The Court of Appeal had held that the claims were not within the scope of the immunity; the solicitors appealed to the House of Lords.

Nature of the claims: actions in negligence by clients against firms of solicitors alleging negligent conduct or advice relating to litigation and settlements, including matrimonial settlements and preparation for trial.

Issues framed:

• whether the advocate's immunity from suit in respect of conduct of proceedings (the principle in Rondel v Worsley and its scope as explained in Saif Ali) should be maintained;
• whether the public‑policy doctrine barring collateral civil attacks on criminal convictions (Hunter v Chief Constable) suffices to prevent abusive collateral challenges and so to justify removing or retaining the immunity;
• whether the immunity (if any) extends to out‑of‑court advice intimately connected with court conduct and to settlements approved by a judge.

Reasoning and outcome: the House analysed the traditional rationales (divided loyalty, cab‑rank rule, witness immunity analogy and collateral challenge) and found them insufficient, in the modern context, to justify a broad immunity in civil litigation. The Court took into account statutory and procedural developments (wasted costs orders, the Civil Procedure Rules, funding changes, s.62 Courts and Legal Services Act 1990) and comparative experience (notably Canada), concluding that the immunity should no longer protect advocates in civil cases. On criminal cases the Law Lords were divided: several judges emphasised the special public interest in finality, fairness of criminal trials and risks of defensive advocacy and would retain the immunity in criminal proceedings; others would abolish it there too. The appeals were dismissed, and the immunity for civil advocacy was abrogated prospectively.

Appeals dismissed. The House concluded that the historical immunity of advocates from negligence actions is no longer justified in civil proceedings and should be abolished. The Law Lords differed on criminal advocacy: some would retain the immunity for criminal trials on public‑policy grounds, others would abolish it; the House did not reach a unanimous abolition of immunity in criminal cases.

Appeal to the House of Lords from the Court of Appeal (reported: [1999] 3 WLR 873). At first instance the claims had been struck out as unsustainable; the Court of Appeal held the strikes‑out were wrong and the solicitors appealed to the House of Lords.