Janin Caribbean Construction Limited v Wilkinson and another (as executors of the estate of Ernest Clarence Wilkinson) and another

Advocate immunity from negligence claims is jurisdiction-specific. A jurisdiction may retain the approach in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co [1980] AC 198, even though England and Wales abandoned the immunity in Arthur JS Hall & Co v Simons [2002] 1 AC 615. The relevant test is whether the act or omission is intimately connected with conduct of the case in court and affects the way it is conducted at the hearing. In Grenada, section 25 of the Legal Profession Act 2011 confirmed that approach. The immunity extends to solicitor advocates and covered a negligent failure to attend a trial to seek an adjournment.

Janin brought proceedings against the executors of Ernest Clarence Wilkinson and his firm, alleging that Mr Wilkinson negligently failed to attend the trial of a personal injuries action brought against Janin. The claim was dismissed by Henry J on 21 December 2009. The Court of Appeal of Grenada dismissed Janin’s appeal on 7 November 2011 and granted final leave to appeal.

Before the Board, Janin argued that Mr Wilkinson owed it a duty of care, had breached that duty by failing to attend the trial, and was not protected by advocate immunity. The Board considered whether the immunity recognised in earlier English authorities continued to apply in Grenada, and whether it covered the alleged omission. It assumed duty, breach and loss for the purpose of deciding immunity.

1. Appeal dismissed. The Board held that Mr Wilkinson was immune from suit in Grenada. It considered immunity first on the assumed basis that he owed Janin a duty of care, breached it by failing to attend the hearing on 17 January 1995, and caused loss.
2. The principles in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co [1980] AC 198 continued to represent Grenadian law. The decision in Arthur JS Hall & Co v Simons [2002] 1 AC 615, which removed the immunity in England and Wales on public-policy grounds, did not automatically alter the law of Grenada. The relevant policy was local, and section 25 of the Legal Profession Act 2011 strongly confirmed that the earlier approach remained applicable there.
3. The scope of the immunity is determined by the intimate-connection test stated in Saif Ali and reflected in Rees v Sinclair [1974] 1 NZLR 180. Pre-trial work or an omission is protected where it is so intimately connected with conduct of the cause in court that it can fairly be regarded as a preliminary decision or omission affecting the way the case will be conducted at the hearing. The administration-of-justice justification is not a separate limb of the test.
4. The majority reasoning in Saif Ali extended the immunity to solicitor advocates. The Board held that a negligent failure to attend the trial in order to seek an adjournment was sufficiently connected with the trial order or verdict to fall within the immunity. The analogous reasoning in Robertson v Macdonogh (1880) 6 LR lr 433 supported that conclusion.
5. It was unnecessary and inappropriate to decide who Mr Wilkinson represented, whether he owed a duty, whether he was in breach, or issues of causation and damages. The Board was also reluctant to determine the meaning and effect of holding papers without fuller instruction on the local practice. The Board advised that the appeal be dismissed and directed written submissions on costs.

1. Privy Council: Appeal dismissed: [2016] UKPC 26.
2. Court of Appeal of Grenada: Appeal from Henry J dismissed on 7 November 2011. Final leave to appeal to the Board was granted on 13 October 2014.
3. High Court of Grenada: Henry J dismissed Janin’s claim with costs on 21 December 2009.