Lawyers' immunity from suit

Citation

Waterson, G. and Lee, R. (2000), "Lawyers' immunity from suit", Property Management, Vol. 18 No. 5. https://doi.org/10.1108/pm.2000.11318eab.004

Lawyers' immunity from suit

Lawyers' immunity from suit

It has long seemed anomalous that barristers and solicitors are the only professionals to enjoy immunity from suit for negligence in their conduct of a case in court or work closely related to it (Rondel v. Worsley (1969) 1 AC 191). In Arthur J.S. Hall & Co. (a Firm) v. Simons, Barratt v. Woolf Seddon (a Firm), Harris v. Schofield Roberts & Hill (a Firm) (2000), The Times, 21 July, an exceptional seven man House of Lords re-considered this position on the grounds that:

Public policy was not immutable and there had been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions (per Lord Hoffmann).

Their Lordships examined all the arguments in favour of the immunity put forward in Rondel v. Worsley and decided not to follow their earlier decision in that case, saying that the requirements of public policy had changed. In relation to the negligent conduct of civil cases all seven judges agreed that the immunity should go. In criminal cases the majority for removing it was four to three with Lords Hope, Hutton and Hobhouse dissenting.

The most substantial argument for immunity from suit put forward in the Rondel case was that it might be contrary to the public interest for a court to re-try a case which had been decided in another court: the collateral attack argument. In other words, if a disappointed litigant, having lost a case can subsequently bring an action for negligence against his or her barrister, the resulting negligence action would amount to a re-trial of the same issues. The law discourages this except by means of an appeal. However, their Lordships felt that not all re-litigation of the same issue would necessarily be unfair or bring the administration of justice into disrepute. Furthermore, when re-litigation was an abuse of the process of the court, the court had power to strike it out (Hunter v. Chief Constable of the West Midlands Police (1982) AC 529). Thus the possibility of re-litigation is not reason enough for giving all lawyers immunity against all actions for negligence in the conduct of litigation, whether such proceedings would be an abuse of process or not.

Their Lordships were, however, careful to avoid saying that Rondel v. Worsley had been wrongly decided. The world, they said had been a very different place then. They were also at pains to point out that in altering the law on the immunity of advocates they were not interfering with matters which should be left to Parliament. Section 62(1) of the Courts and Legal Services Act 1990 states:

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.

Thus, it is clear that Parliament did not endorse the immunity of barristers, it merely extended whatever immunity barristers enjoyed to others, for example solicitors, who lawfully provided the same services. As their Lordships pointed out "… The judges had created the immunity and the judges should say that the grounds for maintaining it no longer existed".

However, the majority felt that there was a relevant difference between civil and criminal proceedings. Since fresh evidence is more readily admissible in criminal cases and there are more possibilities for appeals, it would ordinarily be an abuse of process for a civil court, in an action for negligence, to be asked to decide that a subsisting criminal conviction was wrong. Such a conflict of judgements would be likely to bring the administration of justice into disrepute. The proper procedure was to appeal, and if that had been exhausted, to apply to the Criminal Cases Review Commission. Only once the conviction had been set aside would there be no public policy objection to an action for negligence against the legal advisors.

In civil cases, however, an action for negligence against a legal advisor would not be likely to bring the administration of justice into disrepute. The original decision, whether right or wrong, is usually only of interest to the parties. There is therefore no public interest objection to a subsequent finding that the losing party would have won but for the negligence of his or her lawyers. However, in both criminal and civil cases there might be exceptions to the normal rule.

Lords Hope, Hutton and Hobhouse agreed that immunity from suit was no longer justified in relation to civil proceedings but dissented in relation to criminal proceedings. They stated that the public interest in the administration of justice still required the immunity in criminal cases.

It now appears that a person who wishes to sue his or her lawyer for the negligent handling of a criminal case will be unable to do so until the conviction is set aside, whether the original plea was guilty or not. Thus, the removal of the immunity in criminal cases seems unlikely to lead to an avalanche of successful claims. In the civil context it appears that it may now be easier for disappointed litigants to sue their lawyers (or others providing advocacy services) as collateral attack will not prevent this. However, claimants will still have to prove negligence, causation, and resulting loss and this is likely to prove difficult.

Geoffrey WatersonRosalind Lee

The law is stated as it is understood to be up to 1 August 2000.