LORD STEYN
My Lords,
There are three appeals before the House from orders of the Court of Appeal in a building case and in two cases involving family proceedings. Clients raised claims in negligence against firms of solicitors. In response the solicitors relied on the immunity of advocates from suits in negligence. In all three cases judges at first instance ruled that the claims against the solicitors were unsustainable. The circumstances of these cases and the disposals are set out in the judgment of the Court of Appeal given by Lord Bingham of Cornhill, L.C.J.: Arthur J.S. Hall & Co. (a firm) v. Simons [1999] 3 W.L.R. 873. In effect the Court of Appeal ruled in all three cases presently before the House that the claims were wrongly struck out. The solicitors now appeal. The results of the appeals are of great importance to the parties. But transcending the importance of the specific issues arising on the appeals there are two fundamental general questions namely:
(1) Ought the current immunity of an advocate in respect of and relating to conduct of legal proceedings as enunciated by the House in Rondel v. Worsley [1969] 1 A.C. 191, and explained in Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, to be maintained in England?
(2) What is or ought to be the proper scope in England of the general principle barring a collateral attack in a civil action on the decision of a criminal court as enunciated in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529.
The position in Scotland was not the subject matter of argument on these appeals.
These questions before the House affect both branches of the legal profession. Your Lordships have had the benefit of careful arguments from three sides. First, by counsel for the appellant solicitors who were supported by the Solicitors Indemnity Fund. Secondly, by counsel for the Bar Council who was given leave to intervene and played a particularly helpful part in the appeal. Thirdly, by counsel for the individual litigants who put forward the contrary argument. Having studied the detailed written arguments and heard the oral arguments of counsel for the appellants, the intervenors, and the respondents, your Lordships are now in as good a position to form a judgment on the principal issues as is achievable.
It is necessary to explain the scheme of my opinion. There is a direct link between the two general questions. How the law deals with the problem of re-litigation of matters already decided, as identified in the Hunter case, is an important aspect of any re-consideration of the immunity of advocates. It will be necessary to examine the two issues together. Secondly, although the cases before the House involve actions against solicitors and not against barristers, the reality is that the immunity of barristers is of longer standing and underpinned to some extent by arguments not available to solicitors. It will therefore be convenient first to concentrate by and large on the position in regard to barristers and then to consider whether the conclusions arrived at also apply to solicitors.
The Existing Immunity of Barristers
For more than two centuries barristers have enjoyed an immunity from actions in negligence. The reasons for this immunity were various. It included the dignity of the Bar, the "cab rank" principle, the assumption that barristers may not sue for their fees, the undesirability of relitigating cases decided or settled, and the duty of a barrister to the court: Roxburgh, "Rondel v. Worsley: The Historical Background" (1968) 84 L.Q.R. 178; and Roxburgh, "Rondel v. Worsley: Immunity of the Bar" (1968) 84 L.Q.R. 513. In 1967 when the House decided Rondel v. Worsley the dignity of the Bar was no longer regarded as a reason which justified conferring an immunity on advocates whilst withholding it from all other professional men. In Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 the rule was established that irrespective of contract, if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise: at pp. 502-503. The fact that the barrister did not enter into a contract with his solicitor or client ceased to be a ground of justification for the immunity. Nevertheless, in a unanimous decision the House in Rondel v. Worsley [1969] 1 A.C. 191 upheld the ancient immunity on considerations of "public policy [which are] not immutable:" at p. 227B, per Lord Reid. It is worth recalling that in that case the appellant had obtained the services of the respondent to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence. It is undoubtedly right, as counsel for the solicitors submitted and nobody disputed, that the principal ground of the decision is the overriding duty of a barrister to the court. The House thought that the existence of liability in negligence, and indeed the very possibility of making assertions of liability against a barrister, might tend to undermine the willingness of barristers to carry out their duties to the court. Lord Morris of Borth-y-Gest encapsulated the core idea by saying (at p. 251D): "It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to the client." Other members of the Appellate Committee expressed similar views: see p. 231E, per Lord Reid; pp. 272B-273F, per Lord Pearce; pp. 283E-283G, per Lord Upjohn; and p. 293E, per Lord Pearson. This factor is the pivot on which in 1967 the existence of the immunity hinged. But for it the case would probably have been decided differently. There were however supporting reasons. Perhaps the most important of these was the undesirability of relitigating issues already decided: see p. 230B-F, per Lord Reid and pp. 249A-250B, per Lord Morris of Borth-y-Gest. Another factor to which some weight was attached was the "cab rank" rule, which imposed (and still imposes) upon barristers, but not solicitors, the obligation to accept instructions from anyone who wishes to engage their services in an area of the law in which they practised. In the year after Rondel v. Worsley was decided Sir Ronald Roxburgh (formerly Mr. Justice Roxburgh) said that "the pressures for putting barristers on the same footing as other professional men . . . are already strong, and may grow stronger:" 84 L.Q.R. 513, 527.
Eleven years later in Saif Ali v. Sydney Smith Mitchell & Co. [1980] A.C. 198 the House revisited this topic. On this occasion the immunity established in Rondel v. Worsley was not challenged and was not directly in issue. The existence of the debate on the merits of the immunity was not re-opened. The terrain of the debate centred on the scope of the immunity. Except for Lord Diplock, the members of the House accepted the rationale of Rondel v. Worsley, which Lord Wilberforce said, at p. 213C, was that "barristers . . . have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss." About a barrister's overriding duty to the court Lord Diplock observed, at p. 220C-E:
"The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered."
Lord Diplock did, however, think that the immunity could be justified on two other grounds. The first is the analogy of the general immunity from civil liability which attaches to all persons in respect of the participation in proceedings before a court of justice, namely judges, court officials, witnesses, parties, counsel and solicitors alike: p. 222A-C: The second was the public interest in not permitting decisions to be challenged by collateral proceedings: pp. 222D-223D. There matters rested for a time.
The next development was the introduction by statute of a power enabling the court to make wasted costs orders against legal practitioners: see section 51 of the Supreme Court Act 1981 as substituted by section 4 of the Courts and Legal Services Act 1990. Not surprisingly barristers are occasionally guilty of wholly unjustifiable conduct which occasions a waste of expenditure. The Bar argued that because of the immunity of barristers no such orders ought in principle to be made against barristers. The Court of Appeal ruled to the contrary: Ridehalgh v. Horsefield [1994] Ch. 205. And that decision was accepted by the Bar. It operates satisfactorily. It has not been detrimental to the functioning of the court system or indeed the interests of the Bar.
As Roxburgh predicted in 1968 the pressure for a re-examination of Rondel v. Worsley mounted. There has been considerable academic criticism of the immunity. In a detailed and balanced discussion Peter Cane (Tort Law and Economic Interests, 2nd ed. (1996), pp. 233-238) found that, even taken together, the justifications adduced for the immunity do not support it strongly: see also similar effect Jonathan Hill, "Litigation and Negligence: A Comparative Study," (1986), 6 Oxford J.L.S. 183, 184-186. In an area where one is bound to a considerable extent to rely on intuitive judgments, the criticism of the immunity by two outstanding practising barristers is significant. In Advocates, 1992, pp. 197-206. Mr. David Pannick examined the case for and against the immunity in detail. While accepting that there is some substance in some of the arguments for an immunity, he found that on balance the immunity is not justified. He added, at p. 206: "This issue will not go away. English law will, in the future, have more to say on this topic." Recently, Sir Sydney Kentridge Q.C. expressed the view, making use of his experience as an advocate in South Africa and in England, that the "gloomy speculations" on which the immunity of barristers in England is based are wide off the mark: see Tortious Liability of Statutory Bodies, ed. Basil Markesinis and others, (1999), Foreword, p. ix. But even more important are the observations in the present case by Lord Bingham of Cornhill C.J., Morritt L.J. and Waller L.J. They clearly considered that, while the principle against collateral challenge as enunciated in the Hunter case ought to be maintained, nevertheless there was a substantial case for the sceptical re-examination of the immunity of barristers.
It is now possible to take stock of the arguments for and against the immunity. I will examine the relevant matters in turn. First, there is the ethical "cab rank" principle. It provides that barristers may not pick and choose their clients. It binds barristers but not solicitor advocates. It cannot therefore account for the immunity of solicitor advocates. It is a matter of judgment what weight should be placed on the "cab rank" rule as a justification for the immunity. It is a valuable professional rule. But its impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept. When it does occur, and vexatious claims result, it will usually be possible to dispose of such claims summarily. In any event, the "cab rank" rule cannot justify depriving all clients of a remedy for negligence causing them grievous financial loss. It is "a very price to pay for protection from what must, in practice, be the very small risk of being subjected to vexations litigation (which is, anyway, unlikely to get very far):" Cane, at p. 236. Secondly, there is the analogy of the immunities enjoyed by those who participate in court proceedings: compare however Cane's observation about the strength of the case for removing the immunity from paid expert witnesses: at p. 237. Those immunities are founded on the public policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues in the case. For these reasons they prevent legal actions based on what is said in court. As Pannick has pointed out this has little, if anything, to do with the alleged legal policy which requires immunity from actions for negligent acts: ibid, at p. 202. If the latter immunity has merit it must rest on other grounds. Whilst this factor seemed at first to have some attractiveness, it has on analysis no or virtually no weight at all.
The third factor is the public policy against re-litigating a decision of a court of competent jurisdiction. This factor cannot support an immunity extending to cases where there was no verdict by the jury or decision by the court. It cannot arguably justify the immunity in its present width. The major question arises in regard to criminal trials which have resulted in a verdict by a jury or a decision by the court. Prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v. Commissioner of Police of the Metropolis [1995] Q.B. 335. The position of defence counsel must however be considered. Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully, will from time to time attempt to challenge their convictions by suing advocates who appeared for them. This is the paradigm of an abusive challenge. It is a principal focus of the principle in Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529. Public policy requires a defendant, who seeks to challenge his conviction, to do so directly by seeking to appeal his conviction. In this regard the creation of the Criminal Cases Review Commission was a notable step forward. Recently in Reg. v. Secretary of State for the Home Department, Ex parte Simms [1999] 3 W.L.R. 328, 338, there was uncontroverted evidence before the House that the Commission is seriously under-resourced and under-funded. Incoming cases apparently have to wait two years before they are assigned to a case worker. This is a depressing picture. The answer is that the functioning of the Commission must be improved. But I have no doubt that the principle underlying the Hunter case must be maintained as a matter of high public policy. In the Hunter case the House did not, however, "lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it:" Smith v. Linskills [1996] 1 W.L.R. 763, 769C-F per Sir Thomas Bingham, M.R. (now Lord Bingham of Cornhill) It is, however, prima facie an abuse to initiate a collateral civil challenge to a criminal conviction. Ordinarily therefore a collateral civil challenge to a criminal conviction will be struck out as an abuse of process. On the other hand, if the convicted person has succeeded in having his conviction set aside on any ground, an action against a barrister in negligence will no longer be barred by the particular public policy identified in the Hunter case. But, in such a case the civil action in negligence against the barrister may nevertheless be struck out as unsustainable under the new flexible Civil Procedure rules, 1999; rules 3.4(2)(a) and 24.2. If the Hunter case is interpreted and applied in this way, the principal force of the fear of oblique challenges to criminal convictions disappears. Relying on my experience of the criminal justice system as a presiding judge on the Northern Circuit and as a member of the Court of Appeal (Criminal Division), I do not share intuitive judgments that the public policy against re-litigation still requires the immunity to be maintained in criminal cases. That leaves collateral challenges to civil decisions. The principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with this risk. It would not ordinarily be necessary to rely on the Hunter principle in the civil context but I would accept that the policy underlying it should still stand guard against unforeseen gaps. In my judgment a barrister's immunity is not needed to deal with collateral attacks on criminal and civil decisions. The public interest is satisfactorily protected by independent principles and powers of the court.
The critical factor is, however, the duty of a barrister to the court. It also applies to every person who exercises rights of audience before any court, or who exercises rights to conduct litigation before a court: see sections 27(2A) and 28(2A) of the Courts and Legal Services Act 1990 as inserted by section 42 of the Access to Justice Act 1999. It is essential that nothing should be done which might undermine the overriding duty of an advocate to the court. The question is however whether the immunity is needed to ensure that barristers will respect their duty to the court. The view of the House in 1967 was that assertions of negligence would tend to erode this duty. In the world of today there are substantial grounds for questioning this ground of public policy. In 1967 the House considered that for reasons of public policy barristers must be accorded a special status. Nowadays a comparison with other professionals is important. Thus doctors have duties not only to their patients but also to an ethical code. Doctors are sometimes faced with a tension between these duties. Concrete examples of such conflicting duties are given by Ian Kennedy, Treat Me Right; Essays in Medical Law and Ethics, (1988). A topical instance is the case where an Aids infected patient asks a consultant not to reveal his condition to the patient's wife, general practitioner and other healthcare officials. Such decisions may easily be as difficult as those facing barristers. And nobody argues that doctors should have an immunity from suits in negligence.
Comparative experience may throw some light on the question whether in the public interest such an immunity of advocates is truly necessary. In 1967 no comparative material was placed before the House. Lord Reid did, however, mention other countries where public policy points in a different direction: [1969] 1 A.C. 191, 228E. In the present case we have had the benefit of a substantial comparative review. The High Court of Australia followed Rondel v. Worsley: Gianarelli v. Wraith (1988) 165 C.L.R. 543; see also Boland v. Yates Property Corporation Pty. Ltd. (1999) 74 A.L.J.R. 209. In New Zealand the Court of Appeal has taken a similar course: Rees v. Sinclair [1974] 1 N.Z.L.R. 180. It is a matter of significance that the High Court of Australia and the Court of Appeal of New Zealand came to the conclusion that a barristers immunity from actions in negligence is required by public policy considerations in those countries. On the other hand, in countries in the European Union advocates have no immunity. It is true that there is a difference in that the control of a civilian judge over the proceedings is greater than is customarily exercised by a judge in England: see R.O. Graef, Judicial Activism in Civil Proceedings. A comparison between English and German Civil Procedural Approaches, (1996), passim. But with the advent of the Woolf reforms this difference is reduced to some extent in civil cases: see The Civil Procedure Rules, 1999, Part 1, Para. 1.1 (The over-riding objective). On the other hand, I accept that in the field of criminal procedure the role of a judge in England is far more passive than in European Union countries: see Van Den Wyngaert and others, Criminal Procedure Systems in the European Community (1993), passim. I am also willing to accept that, although an advocate in a civilian system owes a duty to the court, it is less extensive than in England. For example, in Germany there is apparently no duty to refer the court to adverse authorities as in England. Despite these differences the fact that the absence of an immunity has apparently caused no practical difficulties in other countries in the European Union is of some significance: Tortious Liability of Statutory Bodies, ed. B.S. Markesinis and others, (1999), p. 80. In the United States prosecutors have an immunity. In a few states the immunity is extended to public defenders. But otherwise lawyers have no immunity from suits of negligence by their clients: Ferri v. Ackermann (1979) 444 U.S. 193. While the differences between the legal system of the U.S.A and our own must be taken into account, the United States position cannot be altogether ignored. In Canada an advocate had no immunity from an action in negligence before Rondel v. Worsley was decided. In 1979 the question was re-examined in great detail as a result of the decision of the House of Lords in Rondel v. Worsley: see Demarco v. Ungaro (1979) 95 D.L.R. (3rd) 385. In Canada trial lawyers owe a duty to the court. After a detailed and careful review the court found there was no evidence that the work of Canadian courts was hampered in any way by counsel's fear of civil liability. The Demarco case has been consistently followed by Canadian courts: see Karpenko v. Paroian, Courey, Cohen & Houston (1980), 30 O.R. (2d) 776 (H.C.); Pelky v. Hudson Bay Insurance Co. (1981), 35 O.R. (2d) 97 (H.C.); Garrant v. Moskal, [1985] 2 W.W.R. 80 (Sask. Q.B.), affirmed [1985] 6 W.W.R. 31 (Sask. C.A.); Hodge & Son v. Monoghan (1985), 51 Nfld. & P.E.I.R. 173 (Nfld. T.D.) I regard the Canadian empirically tested experience as the most relevant. It tends to demonstrate that the fears that the possibility of actions in negligence against barristers would tend to undermine the public interest are unnecessarily pessimistic.
There would be benefits to be gained from the ending of immunity. First, and most importantly, it will bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong. There is no reason to fear a flood of negligence suits against barristers. The mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent. Indeed if the advocate's conduct was bona fide dictated by his perception of his duty to the court there would be no possibility of the court holding him to be negligent. Moreover, when such claims are made courts will take into account the difficult decisions faced daily by barristers working in demanding situations to tight timetables. In this context the observations of Sir Thomas Bingham M.R. (now Lord Bingham of Cornhill) in Ridehalgh v. Horsefield [1994] Ch. 205 are instructive. Dealing with the circumstances in which a wasted costs order against a barrister might be appropriate he observed, at p. 236:
"Any judge who is invited to make or contemplates making an order arising out of an advocate's conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him."
For broadly similar reasons it will not be easy to establish negligence against a barrister. The courts can be trusted to differentiate between errors of judgment and true negligence. In any event, a plaintiff who claims that poor advocacy resulted in an unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome. Unmeritorious claims against barristers will be struck out. The new Civil Procedure Rules, 1999, have made it easier to dispose summarily of such claims: rules 3.4(2)(a) and 24.2. The only argument that remains is that the fear of unfounded actions might have a negative effect on the conduct of advocates. This is a most flimsy foundation, unsupported by empirical evidence, for the immunity. Secondly, it must be borne in mind that one of the functions of tort law is to set external standards of behaviour for the benefit of the public. And it would be right to say that while standards at the Bar are generally high, in some respects there is room for improvement. An exposure of isolated acts of incompetence at the Bar will strengthen rather than weaken the legal system. Thirdly, and most importantly, public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is created that the law singles out its own for protection no matter how flagrant the breach of the barrister. The world has changed since 1967. The practice of law has become more commercialised: barristers may now advertise. They may now enter into contracts for legal services with their professional clients. They are now obliged to carry insurance. On the other hand, today we live in a consumerist society in which people have a much greater awareness of their rights. If they have suffered a wrong as a result of the provision of negligent professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence. It is also noteworthy that there is no obligation on the barrister (or for that matter the solicitor advocate) to inform a client at the inception of the relationship that he is not liable in negligence, and in practice the client is never so informed. Given that the resort to litigation is often one of the most important decisions in the life of the client, it has to be said that this is not a satisfactory position. Moreover, conduct covered by the immunity is beyond the remit of the Legal Services Ombudsman: section 22(7)(b) of the Court's and Legal Services Act 1990. In combination these factors reinforce the already strong case for ending the immunity.
My Lords, one is intensely aware that Rondel v. Worsley [1969] 1 A.C. 191 was a carefully reasoned and unanimous decision of the House. On the other hand, it is now clear that when the balance is struck between competing factors it is no longer in the public interest that the immunity in favour of barristers should remain. I am far from saying that Rondel v. Worsley was wrongly decided. But on the information now available and developments since Rondel v. Worsley I am satisfied that in today's world that decision no longer correctly reflects public policy. The basis of the immunity of barristers has gone. And exactly the same reasoning applies to solicitor advocates. There are differences between the two branches of the profession but not of a character to differentiate materially between them in respect of the issue before the House. I would treat them in the same way.
That brings me to the argument that the ending of the immunity, if it is to be undertaken, is a matter for Parliament. This argument is founded on section 62 of the Courts and Legal Services Act 1990. It reads as follows:
"(1) A person -
a) who is not a barrister; but
(b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services.
(2) No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question."
The background to this provision is, of course, the judicially created immunity of barristers, which in 1967 was held by the House to be founded on public policy. And it will be recollected that Lord Reid observed that public policy is not immutable. Against this background the meaning of section 62 is clear. It provides that solicitor advocates will have the same immunity as barristers have. In other words, the immunity of solicitors will follow the fortunes of the immunity of barristers, or track it. Section 62 did not either expressly or by implication give Parliamentary endorsement to the immunity of barristers. In these circumstances the argument that it is beyond the power of the House of Lords, which created the immunity spelt out in Rondel v. Worsley, to reverse that decision in changed circumstances involving a different balance of policy considerations is not right. Should the House as a matter of discretion leave it to Parliament? This issue is more finely balanced. It would certainly be the easy route for the House to say "let us leave it to Parliament." On balance my view is that it would be an abdication of our responsibilities with the unfortunate consequence of plunging both branches of the legal profession in England into a state of uncertainty over a prolonged period. That would be a disservice to the public interest. On the other hand, if the decision is made to end the immunity now, both branches of the profession will know where they stand. They ought to find it relatively easy to amend their rules where necessary and to adjust their already existing insurance arrangements insofar as that may be necessary.
My Lords, the cards are now heavily stacked against maintaining the immunity of advocates. I would rule that there is no longer any such immunity in criminal and civil cases. In doing so I am quite confident that the legal profession does not need the immunity.
The Hunter case
So far as the Hunter case involves a separate question before the House I would refer to my discussion of this topic under the heading of Immunity of Barristers.
The Disposal Of The Appeals
Given the conclusion that the immunity no longer exists, it follows that the appeals must fail. I would dismiss the three appeals.
