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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Arthur JS Hall & Co v Simons  EWCA Civ 1943 (14 December 1998)
Cite as:  EWCA Civ 1943
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COURT OF APPEAL (CIVIL DIVISION)
B e f o r e :
(Lord Bingham of Cornhill)
LORD JUSTICE MORRITT
LORD JUSTICE WALLER
| CCRTF 97/1569/2
|ARTHUR J S HALL & CO
|- v -
|MELVYN KEITH SIMONS
|FCR 98/7409/1 & QBENI 98/0109/1
|- v -
|FR3 98/7344/1 & QBENI 98/0157/1
|- v -
|ATKINSON DACRE & SLACK
|FC3 98/7279/1 & QBENI 98/0746/1
|- v -
|SCHOLFIELD ROBERTS & HILL
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
MR RUPERT JACKSON QC, MR NORMAN WRIGHT and MISS SIAN MIRCHANDANI
(instructed by Messrs Weightmans, Liverpool L3 9QW) appeared on
behalf of THE RESPONDENT
MR ANDREW EDIS QC (instructed by Messrs Hill Dickinson, Liverpool
L2 9XL) appeared on behalf of THE APPELLANT
FC3 98/7409/1 & QBENI 98/0109/1
MR MARTIN POINTER QC and MR STEPHEN TROWELL (instructed by Messrs
Cooper Whiteman, London WC1N 2PL) appeared on behalf of THE APPELLANT
LORD MESTON QC and MR RUPERT JACKSON QC (instructed by Messrs Reynolds
Porter Chamberlain, London WC1V 7HA) appeared on behalf of
FC3 98/7344/1 & QBENI 98/0157/1
THE APPELLANT appeared in person
MR RUPERT JACKSON QC and MR CHRISTOPHER CHRITCHLOW (instructed by
Messrs Wansbroughs Willey Hargrave, Leeds LS1 2LW) appeared on behalf
of THE RESPONDENT/APPLICANT
FC3 98/7279/1 & QBENI 98/0746/1
MR PETER DUCKWORTH and MR NICHOLAS BOWEN (instructed by Messrs Stephens & Scown, Exeter EX1 1RS) appeared on behalf of THE RESPONDENT
MR RUPERT JACKSON QC and MR JEFFREY BACON (instructed by Messrs Bond
Pearce, Exeter EX1 1LA) appeared on behalf of THE APPELLANT
Crown Copyright ©
THE LORD CHIEF JUSTICE:
This is the judgment of the court, to which all members have very substantially contributed
(1) A lawyer acting as an advocate is immune from any claim for damages for negligence by a client arising out of almost anything done or omitted in the course of conducting a case in court For convenience we refer to this as "forensic immunity"
(2) The rationale of forensic immunity is recognised to be public policy principally (a) to prevent the re-litigation, otherwise than on appeal, of issues already concluded adversely to the plaintiff by court decision;(b) as part of the general immunity from civil liability which attaches to all persons who participate in proceedings before a court of justice;and (c) because an advocate owes a duty to the court as well as to his client and should not be inhibited, through apprehension of an action by his client, from performing his duty fearlessly and independently
(3) Since forensic immunity derogates from the fundamental principle that a professional person is answerable to a client for any loss caused to the client by any want of the skill and care ordinarily to be expected from such a professional person, the scope of the immunity should be restricted to cases in which public policy grounds call for its recognition
(4) While forensic immunity extends beyond the limits expressed in (1) above, it applies only "where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice"
"I do not understand this formulation as suggesting an entirely new test, ie, a double test requiring (a) intimate connection with the conduct of the cause in court and (b) necessity in the interests of the administration of justice The latter words state the justification for the test but the test lies in the former words If these words involve a narrowing of the test as compared with the more general words 'conduct and management' I think that this is right and for that reason I suggest that the passage, if sensibly, and not pedantically, construed, provides a sound foundation for individual decisions by the courts, whether immunity exists in any given case I should make four observations First, I think that the formulation takes proper account, as it should, of the fact that many trials, civil and criminal, take place only after interlocutory or pre-trial proceedings At these proceedings decisions may often fall to be made of the same nature as decisions at the trial itself: it would be illogical and unfair if they were protected in the one case but not in the other Secondly, a decision that a barrister's liability extends so far as I have suggested necessarily involves that it does not extend beyond that point In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill The immunity as regards litigation is an exception from this and applies only in the area to which it extends Outside that area, the normal rule must apply Thirdly, I would hold that the same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister Fourthly, it is necessary to repeat that the rule of immunity is quite distinct from the question what defences may be available to a barrister when he is sued It by no means follows that if an error takes place outside this immunity area, a liability in negligence arises"
"So for instance in the English system of a divided profession where the practice is for the barrister to advise on evidence at some stage before the trial his protection from liability for negligence in the conduct of the case at trial is not to be circumvented by charging him with negligence in having previously advised the course of conduct at the hearing that was subsequently carried out
It would not be wise to attempt a catalogue of before-trial work which would fall within this limited extension of the immunity of an advocate from liability for the way in which he conducts a case in court"
Lord Salmon (at page 230) said:
"I cannot, however, understand how any aspect of public policy could possibly confer immunity on a barrister in a case such as the present should he negligently fail to join the correct persons or to advise that they should be joined as defendants;or for that matter should he negligently advise that the action must be discontinued It seems plain to me that there could be no possibility of a conflict between his duty to advise his client with reasonable care and skill and his duty to the public and to the courts I do not see how public policy can come into this picture Once it is clear that the circumstances are such that no question of public policy is involved, the prospects of immunity for a barrister against being sued for negligently advising his client vanish into thin air, together with the ghosts of all the excuses for such immunity which were thought to exist in the past"
"I may have put the case too high if I used words which might give the impression that counsel's immunity always extended to the drafting of pleadings and to advising on evidence I should have said that the immunity might sometimes extend to drafting pleadings and advising on evidence If in an advice on evidence counsel states that he will not call Y as a witness whom he believes his client wishes to call solely to prejudice his opponent, counsel is immune on grounds of public policy from being sued in negligence by his client for advising that Y must not be called or for refusing to call him In such a case the advice would be so closely connected with the conduct of the case in court that it should be covered by the same immunity It would be absurd if counsel who is immune from an action in negligence for refusing in court to call a witness could be sued in negligence for advising out of court that the witness should not be called If he could be sued for giving such advice it would make a travesty of the general immunity from suit for anything said or done in court and it is well settled that any device to circumvent this immunity cannot succeed: see, eg, Marrinan v Vibart  1 QB 234; 1 QB 528"
Lord Salmon considered (at page 231) that it could only be
"in the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court;and this case is certainly not amongst them"
"What is needed is to identify those reasons based on public policy which were held to justify a barrister's immunity from liability for negligence for what he did in court during the trial of a criminal case and, having done so, to decide whether they suffice to justify a like immunity when advising a client, through his solicitor, as to who should be made a party to a proposed civil action and when settling pleadings in the action in conformity with that advice"
Thus, when any advocate claims to be immune in respect of any specific thing which he has done or
omitted to do, it is necessary to test that claim by reference to that specific act or omission and to examine the public policy grounds which may be relied on to support the recognition of immunity in that instance
"Furthermore, if the principle is invoked that it is against public policy to allow issues previously tried (between the client and his adversary) to be re-litigated between client and barrister, it may be relevant to ask why this principle should extend to a case in which by the barrister's (assumed) fault, the case never came to trial at all These two considerations show that the area of immunity must be cautiously defined"
Lord Diplock (at page 223) said:
"My Lords, it seems to me that to require a court of co-ordinate jurisdiction to try the question whether another court reached a wrong decision and, if so, to inquire into the causes of its doing so, is calculated to bring the administration of justice into disrepute Parliament indeed itself stepped in to prevent a similar abuse of the system of justice by convicted criminals in bringing civil actions for libel against those who described them as having been guilty of the crimes of which they had been convicted: see Civil Evidence Act 1968, section 13 A consequence of the decision of this House in Rondel v Worsley  1 AC 191 was to prevent its happening in actions for negligence against barristers
A similar objection, it may be mentioned, would not apply in cases where an action has been dismissed or judgment entered without a contested hearing, and there is no possibility of restoring the action and proceeding to a trial If the dismissal or the entry of judgment was a consequence of the negligence of the legal advisers of a party to the action, a claim in negligence against the legal advisers at fault does not involve any allegation that the order of the court which dismissed the action or entered judgment was wrong"
"I can find no justifiable line to be drawn at the door of the court, so that a claim in negligence will lie against a barrister for what he does or omits negligently short of the threshold though not if his negligent omission or commission is over the threshold His immunity from claims of negligence should (granted that it is to exist at all) extend to areas which affect or may affect the course of conduct of litigation, in which areas are to be found the public duty and obligation of the barrister to participate in the administration of justice And this should be so even if the result of the alleged negligence is that litigation does not in fact come about A decision which shapes, or may shape, the course of a trial should be within the umbrella (or blanket) of freedom from claims whether it is arrived at before trial or during it This must include advice on settlement: advice on evidence: advice on parties: to list only examples A barrister is offered an opportunity in the course of a trial to add a party: he misunderstands the case and allegedly negligently declines the opportunity: as I understand Rondel v Worsley  1 AC 191 he is immune from the claim Is there any reason for not holding him also immune from a claim for not originally adding that party? I think not"
Lord Keith of Kinkel (at page 235) was of the same mind:
"A barrister's duty to the court and the due administration of justice has to be kept firmly in view when he directs his mind to whether an action should be brought and against what parties, to whether an action should be settled or abandoned and to advising on evidence and on the discovery of documents It is true that decisions on such matters normally are taken in situations offering more opportunity for reflection than is present in face of the court in the course of a trial But that might well mean that the decision is less instinctively correct in the light of the barrister's duty to the court and more likely to be influenced by thoughts of the action which the client, in the absence of an immunity, might take
I am therefore of opinion that the grounds of this aspect of public interest extend beyond the actual conduct of a case in court and are applicable to all stages of a barrister's work in connection with litigation, whether pending or only in contemplation"
But this was a minority view, and the majority's disagreement with it gave rise to Lord Keith's dissent As he observed (at page 237):
"The suggested restriction of the immunity would presumably exclude from its scope all cases relating to contemplated litigation which did not actually reach the stage of a hearing in court, and all litigation settled, compromised or abandoned In other cases the suggested restriction would, in my opinion, prove difficult to apply in practice and would almost inevitably require inquiry into the facts It would seldom, if ever, be possible to decide the issue of immunity upon an application for striking out So the objective of relieving the barrister of any apprehension of contentious litigation regarding the conduct of his cases would not be achieved"
He concluded that the negligence alleged against the barrister took place "in connection with his conduct of litigation" and that accordingly the barrister was immune from suit
Collateral challenge as an abuse of process
was eroded by the unanimous decision of the House of Lords in Hunter v Chief Constable of the West Midlands and Others  AC 529 In that case the plaintiff Hunter claimed damages against two Chief Constables whom he alleged to be vicariously responsible for physical assaults which he claimed had been inflicted upon him by police officers at or before the time of his oral admission of murder At his criminal trial for murder the question whether Hunter had been the victim of such assaults by the police had been directly in issue in a protracted voire dire and in the judge's direction to the jury In his ruling on the voire dire the judge, applying the criminal burden of proof, had been sure that Hunter had not been assaulted by the police as he claimed The jury convicted Hunter and were taken thereby to have been similarly satisfied Hunter appealed to the Criminal Division of the Court of Appeal against his conviction, but made no complaint about the judge's ruling on the voire dire By his civil action Hunter was concerned not to recover damages (which he could have done, subject to argument on quantum, against the Home Office, which accepted liability) but to throw doubt on the soundness of his conviction The Chief Constables applied to strike out the action, first on grounds of estoppel per rem judicatam and secondly as an abuse of process
The House found it unnecessary to hear argument on estoppel per rem judicatam (or issue estoppel) and concluded, without calling on the Chief Constables to argue, that the proceedings were an abuse of the process of the court
"My Lords, this is a case about abuse of the process of the High Court It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people The circumstances in which abuse of process can arise are very varied;those which give rise to the instant appeal must surely be unique It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power"
He continued (at page 541):"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made (
My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A L Smith LJ in Stephenson v Garnett  1 QB 677, 680 - 681 and the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 AppCas 665, 668 which are repeated by Goff LJ in his judgment in the instant case I need only repeat an extract from the passage which he cites from the judgment of A L Smith LJ:
"((the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court"
The passage from Lord Halsbury's speech deserves repetition here in full:
"(I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again""
Disposal of proceedings without a full hearing
It is unnecessary to multiply examples But there is one form of consent order , in relation to ancillary relief in matrimonial proceedings, which is particularly germane to three of the appeals before us
Consent orders for ancillary relief
"(1) Notwithstanding anything in the preceding provisions of this Part of this Act, on an application for a consent order for financial relief the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application"
"Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived Their legal effect is derived from the court order ((" (see de Lasala v de Lasala  AC 546 at 560;Thwaite v Thwaite  Fam 1 at 7;Jenkins v Livesey, above, at 435)
A party who has consented to an order is not precluded from seeking to challenge or set aside the order where fraud or misrepresentation or non-disclosure or a fundamental change of circumstances has occurred: see Barder v Caluori  AC 20;Harris (formerly Manahan) v Manahan)  4 All ER 454 But substantial grounds for a challenge must be shown Hence the salutary warning given by Lord Oliver of Aylmerton in Dinch v Dinch  1 WLR 252 at 255 where he said:
"I feel impelled once again to stress in the most emphatic terms that it is in all cases the imperative professional duty of those invested with the task of advising parties to these unfortunate disputes to consider with due care the impact which any terms that they agree on behalf of their clients have and are intended to have upon any outstanding application for ancillary relief and to ensure that such appropriate provision is inserted in any consent order made as will leave no room for any future doubt or misunderstanding or saddle the parties with the wasteful burden of wholly unnecessary costs It is, of course, also the duty of any court called upon to make such a consent order to consider for itself, before the order is drawn up and entered, the jurisdiction which it is being called upon to exercise and to make clear what claims for ancillary relief are being finally disposed of I would, however, like to emphasise that the primary duty in this regard must lie upon those concerned with the negotiation and drafting of the terms of the order and that any failure to fulfil such duty occurring hereafter cannot be excused simply by reference to some inadvertent lack of vigilance on the part of the court or its officers in passing the order in a form which the parties have approved"
Manahan) v Manahan above, at page 462 that judges rely on practitioners' help It nonetheless remains true that
"The court has an overriding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed" (Peacock v Peacock  1 FLR 324 at 328 per Thorpe J)
The same point was clearly made in Pounds v Pounds by Waite LJ at 1537 - 8 and by all three members of the Court of Appeal in Kelley v Corston  QB 686 at 690 (Judge LJ), 710 (Pill LJ) and 714 (Butler-Sloss LJ)
Forensic immunity: the decided cases
1 In Biggar v McLeod  2 NZLR 9 the defendant, a barrister and solicitor, had acted for the plaintiff in matrimonial proceedings which had been compromised with her agreement after the evidence in the case had been heard at a trial She complained that the proceedings had been settled on terms other than those agreed with her, and issued proceedings against the defendant At first instance the judge dismissed the plaintiff's action on the basis that the defendant had been immune from suit for negligence The Court of Appeal agreed Applying the Rees v Sinclair test, the Court of Appeal held that the settlement of the proceedings during the trial was "part and parcel of the work of counsel in carrying forward the proceedings to a conclusion" (page 12) and "part and parcel of the management of the trial" (page 14) The case was only concerned with settlement during a trial At this time the House of Lords had not yet heard the appeal in Saif Ali
2 In Giannarelli v Wraith (1988) 62 ALJR 611, three men had been charged and convicted of perjury as a result of evidence which they had given to Commonwealth and Victorian Royal Commissions into employment matters Appeals against conviction were ultimately successful on the ground that under a Commonwealth statute the evidence which they had given to the Royal Commissions was inadmissible against them in criminal proceedings They sued three barristers who had represented them at the criminal trial, complaining of their failure to object to the inadmissible evidence, without which they would not have been convicted By a bare majority, the High Court of Australia upheld the barristers' claim to immunity, regarding the failure to object to the reception of the evidence as "an incident of the conduct and management of the case in court" (page 615)
3 In Keefe v Marks 16 NSWLR 713 a personal injury plaintiff had recovered damages but had been denied interest, both at first instance and on appeal, because no such claim had been pleaded or made He issued proceedings against his solicitor, complaining that his failure to recover interest was the result of the solicitor's negligence, and the solicitor compromised that claim The solicitor then, however, issued proceedings against counsel, claiming an indemnity against the loss he had suffered, and counsel claimed the benefit of forensic immunity The Court of Appeal of New South Wales, by a majority, held the claim of immunity to be a good one: it appeared that counsel had not been instructed to advise or to settle the statement of claim, but only to appear at the hearing;and it was held that preparation of a case out of court could not be divorced from presentation in court since the two activities were inextricably interwoven
4 In Landall v Dennis Faulkner and Alsop and others  5 Med LR 268 , the plaintiff had compromised his road accident claim in reliance on advice given at the door of the court by a medical consultant (the third defendant), his counsel (the second defendant) and his solicitors (the first defendant) The hopeful prognosis upon which the settlement was based was not in the event borne out, and the plaintiff claimed damages against the three defendants for negligence All claimed to be immune from suit The consultant's claim was upheld, it would seem under the general privilege protecting those who give, or prepare to give, evidence in court, and also on application of the Rees v Sinclair test Counsel's claim was upheld by analogy with the ruling in Biggar v McLeod The judge held (at page 275) that any act or omission on the part of counsel between delivery of his brief at the end of November 1986 and the hearing in the middle of February 1987 was so intimately connected with the February hearing as to be subject to immunity The claim against the solicitors was struck out as vexatious and an abuse of process, because no distinction was to be drawn between their position and that of counsel and to allow the matter to proceed against them would result in a blatant outflanking of counsel's immunity
5 The plaintiff in Bateman v Owen White and Another  1 PNLR 1 had been convicted at first instance but eventually acquitted on appeal He sued the solicitors and counsel who had represented him at his trial, complaining that they had failed to object to inadmissible evidence On application of the solicitors, counsel taking no active part, the judge struck out the plaintiff's claim on the ground that the solicitors were immune from suit in relation to the matters of which complaint was made Leave to appeal against this decision was refused: it was held that "the substance of the matter, given the special nature of the objection to admissibility which was available in the present case, is the failure to raise that objection at the trial rather than the previous negligence which is also alleged" Accordingly, the complaint was held to relate to the conduct of the trial No reference was made to any distinction between solicitors and barristers (pages 6 - 7) The decision bears a close resemblance to that in Giannarelli
6 The plaintiff in McFarlane v Wilkinson and Another  1 Lloyd's Rep 406 had sued defendants in common law negligence A preliminary issue was tried whether the defendants in that action owed him a duty of care At first instance the judge held that they did The Court of Appeal reversed that decision Having lost that action, the plaintiff sued leading and junior counsel who had represented him in that case complaining that they had been negligent in failing to include in his action a claim for breach of statutory duty This complaint related only to the period between the successful outcome at first instance and the unsuccessful outcome on appeal It was held that this complaint fell squarely within the scope of forensic immunity as defined by the House of Lords in Saif Ali
7 The defendant in Keegan Alexander Tedcastle and Friedlander v Hurst  DCR 481 complained that earlier proceedings had been unsuccessful as a result of inadequate research conducted by her advocate The advocate claimed immunity, and the claim was upheld The judge held (at page 484):
"In my view the preparation of the case for the High Court and, in particular, the legal research incidental thereto was work undertaken by Mr Vickerman as a barrister It was work which was so intimately connected with the conduct of the litigation that it comes within the scope of the protection"
8 In Yates Property Corporation Pty Limited v Boland and Others (1997) 145 ALR 169 the plaintiff made complaints against a firm of solicitors and against counsel whom he had retained in earlier proceedings In the course of a long judgment, all his complaints of negligence were dismissed There was also, however, a claim for forensic immunity advanced on behalf of counsel: the judge found (at page 221) that all of the allegations of negligence made against them, realistically analysed, related either to work done in court or to work done out of court which led to decisions affecting the conduct of the earlier proceedings He accordingly found that they were entitled to immunity
9 Kelley v Corston  QB 686 is a recent decision of the Court of Appeal to which much attention was devoted in argument The defendant, a barrister, had been instructed to represent the plaintiff at a hearing of the plaintiff's claim for financial relief A conference between the plaintiff and counsel took place on the day before the hearing On the day of the hearing both parties, and their representatives, attended at court and a compromise agreement was reached, embodied in a consent order by the deputy district judge Thereafter the plaintiff issued proceedings against the barrister claiming damages for negligence in "negotiating and advising the plaintiff to accept a settlement of her claim for ancillary relief against her husband" The critical allegation made by the plaintiff, as understood by the Court of Appeal (page 690), was that the overall effect of the settlement had left the plaintiff unable to finance the repayments of the mortgage on the former matrimonial home after it had been transferred into her name The barrister applied to strike out the claim on the basis that she was protected by forensic immunity All three members of the Court of Appeal upheld the barrister's claim to forensic immunity, but on different grounds
Judge LJ, giving the first judgment, did not conclude that the barrister's conduct in settling the litigation was covered by immunity He said:
"In my judgment the settlement of litigation is not normally encompassed within the principles on which the immunity of the advocate is based None of the relevant authorities requires and there are no public policy considerations which justify a blanket immunity from suit for negligent advice to a client which results in a settlement of his claim, whether the advice is given by counsel or a solicitor (whether advocate or not) and whether the settlement is reached before the hearing or at the door of the court"
To this general statement he acknowledged two exceptions: the first where a case was compromised after the trial had begun;and the second where a settlement was subject to or required the approval of the court In his judgment the barrister was entitled to claim immunity in that case because the settlement had required and received the approval of the court
Pill LJ was of opinion (at page 710) that because the court had by giving its approval assumed responsibility for the merits of the consent order the advocate was immune from suit for his role in advising that the settlement be made However, Pill LJ was unwilling to decide the appeal on that basis, since this ground had never been pleaded or argued or relied on before the judge He therefore went on to consider whether the advocate was immune on application of the Rees v Sinclair test, and concluded that she was on the basis (page 711) that no sensible distinction could be drawn between a settlement made in the course of trial and one made at the door of the court before the trial began He held (page 712) that a settlement made at the door of the court in civil proceedings had a more intimate connection with a hearing about to begin than a plea of guilty in a criminal case
Butler-Sloss LJ agreed with Pill LJ's conclusion She held (at page 715) that a consent order made and approved under the Act of 1973 had such an intimate connection with the conduct of the cause in court that it came within the Rees v Sinclair test She also, however, as it would seem, hesitated to decide the appeal on this unpleaded ground, and so she too went on to consider whether forensic immunity extended to cover settlements made at the door of the court, although she thought her opinion on that matter might be strictly obiter She concluded (at page 718) that there was no real distinction between coming to an agreement while waiting to start a case and making it after the case had begun She said (at page 719):
"For my part, I do not believe it is in the interests of the administration of justice that any distinction should be drawn between the point at which the advocates attend court and thereafter for immunity against suit to apply It would also be a clear workable rule which was easy to apply"
10 The second defendant in Atwell v Michael Perry and Co and Another  4 All ER 65 was a barrister He had acted for the plaintiff in county court proceedings brought against him by neighbours in a boundary dispute In the proceedings the plaintiff had lost, and the second defendant had advised that there was no reasonable prospect of a successful appeal The plaintiff had then sought advice from a different member of the Bar who had advised that the plaintiff had a very good prospect of success on appeal, and this advice was vindicated when the plaintiff did indeed succeed in the Court of Appeal The plaintiff then claimed damages for negligence against the solicitors whom he had first instructed, as first defendants, and against the second defendant His complaints of negligence, summarised at page 72 of the report, alleged legal errors and oversights in the second defendant's assessment of the case and he also complained of the inaccurate advice that there were no grounds of appeal
Sir Richard Scott V-C held (at page 79) that all the plaintiff's complaints related to decisions of counsel as to how he proposed to conduct the case, and as such were covered by forensic immunity;but (at page 80) he concluded that the second defendant's advice on the prospect of successfully appealing against the adverse decision was not similarly protected The Vice Chancellor concluded, however, that even that allegation did not raise a sustainable claim for damages in negligence (pages 80-81) We understand that this decision is currently subject to appeal
1 In Somasundaram v M Julius Melchior and Co  1 WLR 1394 a defendant who had pleaded guilty and been sentenced at a trial thereafter sued the solicitors who had acted for him at the criminal trial complaining that they had wrongly pressurised him into pleading guilty It was argued for the solicitors that since counsel, if sued, would have been protected by forensic immunity from any claim based on his advice to plead guilty, the solicitors were entitled to a similar immunity This claim the Court of Appeal rejected, holding (at page 1403) that forensic immunity only extended to those, whether barristers or solicitors, who were acting as advocates when doing the work giving rise to the complaint The plaintiff's claim was, however, dismissed on other grounds (see below)
2 In Donellan v Watson (1990) 21 NSWLR 335, forensic immunity was denied to a solicitor who consented to a compromise of an appeal on terms quite different from those he had agreed with his client A somewhat similar decision had earlier been reached in New Zealand, without reference to forensic immunity, in Thompson v Howley  1 NZLR 16 These cases show that immunity does not necessarily attach to things done in court
3 The plaintiff in Acton v Graham Pearce and Co  3 All ER 909 had been convicted on criminal charges but the convictions had been quashed by the Court of Appeal following the reception of new evidence He complained in these proceedings that the defendant solicitors, who had acted for him at the trial, had conducted his defence negligently with the result that he had been wrongly convicted In these proceedings he complained that the solicitors had failed to take steps which reasonably competent solicitors would have taken, and the judge (at page 923) was satisfied that this complaint was made out The judge (at page 924) could not accept that the solicitors' failures could be said to be in the nature of preliminary decisions affecting the way that the plaintiff's defence was to be conducted when the proceedings came to trial, and was accordingly satisfied that the failures were not within the scope of the forensic immunity established by Rees v Sinclair The judge also held that there was no public policy objection to the plaintiff's claim since far from challenging the final subsisting decision of a court his claim was entirely consistent with his acquittal on appeal
4 In Keegan Alexander Tedcastle and Friedlander v Hurst, above, it was held that a solicitor was not protected by immunity against claims based on his failure to give full and reasoned written advice on the risks of the litigation on which the defendant was embarking and its likely cost (page 486)
5 The plaintiff in Griffin v Kingsmill and others  PIQR P 24 was a minor who suffered very serious injuries in a road traffic accident She sought damages from the driver of the car which had knocked her down, and her claim was settled and approved by the court under RSC Order 80 Rule 11 before proceedings were begun Under the settlement she received a sum very far below the value of the claim on a basis of full liability, and she thereafter sued as the first two defendants the solicitors who had previously represented her, and as the third defendant her counsel All three defendants applied to strike out the plaintiff's claim against them on the ground that they were immune from suit in relation to the compromise of the plaintiff's claim The deputy district judge refused to strike out, and his decision was affirmed on appeal by Timothy Walker J He held (at P 29-30):
"(1) Striking out these claims would, in my judgment, involve not just an application, but an extension of the obiter reasoning of the Court of Appeal [in Kelley v Corston] It necessarily involves the proposition that no matter how remote in time and space the advice to settle is from the court house door and the eventual court order, the advice to settle is immune just because of the court order I am far from satisfied that such a result could have been intended
(2) Indeed, from the language of the judgments of the Court of Appeal, ((it seems to me more than arguable (which is all that matters for present purposes) that they did intend to confine the court order point to the specific facts before them Such facts do not (obviously) exist here
(3) The extension of the principle in the manner indicated would lead to wholly random results It would mean that the advice would be immune, depending upon the age of the client Indeed, advice given to a 17 year old whose settlement was activated swiftly would be immune Advice given to a 17 year old, the implementation of which was delayed beyond the next birthday, would not be immune
(4) Further, if the immunity arises solely from the court order (because essentially it is against public policy to inquire into whether the court discharged its duty to see that the settlement was a fair one) then, logically, I cannot see any reason why the immunity should not apply equally to the solicitors It is plain beyond argument that the first defendant performed no advocacy function of any kind here, yet she would still be immune For example, if a solicitor negligently failed to enclose a vital recent medical report when sending counsel instructions to advise on an infant's settlement, as a result of which the case was seriously under-valued, the solicitors, who had committed an elementary error which had nothing to do with the actual conduct of the case in court, would be immune("
6 On the trial of a preliminary issue in the same case (20 February 1998, unreported) Buckley J held that forensic immunity did not extend to cover counsel on the facts of the case, and that the first defendant was not protected by immunity in any event since she had not been acting as an advocate
7 In Connolly - Martin v D (21 July 1998, unreported) Sedley J refused to strike out on grounds of forensic immunity an action alleging that counsel had negligently and without the authority of his client given an undertaking binding on the client, an act done in court, and further alleging that counsel had negligently advised the client that she was bound by the undertaking, an act done out of court
Collateral challenge as abuse of process: the decided cases
The deputy judge allowed the contractors' appeal against the expert Applying a test analogous to that in Rees v Sinclair, he concluded that while the expert might be immune in relation to his evidence in court and the preparation of it, he might well not be immune in relation to his initial advice and his willingness to advise as an expert The deputy judge did not find it possible, on the pleadings, to rule where immunity began and ended and so reinstated the claim On the solicitors' summons, however, the deputy judge struck out those paragraphs of the contractors' pleading which, in his judgment, impugned the earlier consent judgment He rejected the argument that this had not been a final decision because the court had not itself pronounced on the merits of the claims, holding that a final decision for the relevant purpose was one which would give rise to a plea of res judicata, leaving nothing to be judicially determined or ascertained thereafter
accepted that he had a point arguable on appeal On the application of the solicitors, a judge struck out the plaintiff's claim against the solicitors as an abuse, holding that it made a collateral attack on the subsisting decision of the Crown Court The Court of Appeal took a different view, pointing out that the rule in Hunter was not absolute and holding for a number of reasons that the action against the solicitors was not necessarily to be regarded as abusive But the Court questioned whether Mr Tuckey had been right to strike out the claim against the solicitors in Palmer Ralph Gibson LJ (giving a judgment in which the other members of the court concurred)
(1) agreed that as between the contractors and the repairers the consent judgment had been final as giving rise to a plea of res judicata;but
(2) was not satisfied that that had been a decision against the contractors which they had had a full opportunity of contesting within the principle stated by Lord Diplock in Hunter;and
(3) held that the Hunter principle did not prevent a plaintiff attacking a prior decision if he had sufficient fresh evidence;and
(4) held (at pages 124-5):
"If there is a sufficiently arguable case to show that the defendant solicitors, by their breach of duty, put the plaintiffs in the position of being unable properly to contest the first decision, so that the plaintiffs were reasonably compelled to submit to judgment on the issue, then, in my judgment, the plaintiffs' claim is not shown to be an abuse of the process of the court merely because it will, if it succeeds, require the court to assess the damages on the basis that the prior decision of the court would not have been made if the solicitors had not been in breach of duty"
Thus on this reasoning the Hunter principle may not be irrelevant where there has been an unapproved judgment by consent (although Lord Diplock in the passage from Saif Ali at page 223 quoted above would appear to have taken a different view);but the principle in any event requires
some modification where the claim is against solicitors on the ground that the solicitors' negligence obliged the client to accept less than would have been recoverable but for the solicitors' negligence;and good reason must be shown for re-opening the matter Plainly, however, the Court of Appeal did not intend to sanction a new and undesirable form of satellite litigation It is very common for litigants, having compromised, to suffer post-settlement remorse Only rarely will an action against their legal advisers be otherwise than abusive
the lawyer will succeed in rebutting any accusation of negligence;but the question whether the lawyer is negligent is quite distinct from the question whether he is immune
(1) the ratio of the majority is somewhat elusive (the more so since Butler-Sloss LJ expressed agreement with the conclusions of Pill LJ but not with his reasoning);
(2) some doubt is cast on what appears to be the ratio of Butler-Sloss LJ's judgment by her suggestion (at page 716) that the views she went on to express might be said to be strictly obiter;
(3) two members of the court were, it seems, unwilling to rest their judgments on the only point on which all three members of the court were apparently agreed;
(4) the Hunter principle was not relied on, although it would seem to have provided the appropriate basis on which to consider the significance of the court's approval of the agreed terms of settlement (see Judge LJ at page 695;the other members of the court made no reference to Hunter);
(5) it is not easy to reconcile the apparent reliance of Pill and Butler-Sloss LJJ on the fact that settlement was agreed at court when the parties gathered for the hearing with the acceptance by counsel for the plaintiff (at page 691) that no distinction could be drawn between the advice given by the barrister at court on the morning of the trial and the advice which she had given the day before
It is difficult to derive any clear principle from the case, a difficulty which we share with first
instance judges who have attempted to apply it It does not in any event govern these appeals, which all concern solicitors only
we draw together the main features of the law as we now understand it to be in cases where (1) a plaintiff in a later action seeks relief against legal advisers who acted for the plaintiff in an earlier action which ended in a considered decision of the court or an approved settlement and (2) the plaintiff's claim in the later action is based on negligence allegedly leading to an outcome less favourable than, but for the negligence, the plaintiff would and should have achieved and (3) the legal advisers sued in the later action apply to restrain further prosecution of the proceedings:
1 The first question to be asked is whether the plaintiff's claim represents an abusive collateral challenge to the earlier judgment of the court If it does the claim will ordinarily be dismissed or struck out unless there are grounds for not following that course
2 In deciding whether, in any given case, the later proceedings constitute an abusive collateral challenge to the earlier judgment of the court it is always necessary to consider (a) the nature and effect of the earlier judgment, (b) the nature and basis of the claim made in the later proceedings, and (c) any grounds relied on to justify the collateral challenge (if it is found to be such)
3 In considering the nature and effect of the earlier judgment, even greater weight will be accorded to a criminal conviction than to the final judgment in a contested civil trial, and greater weight will be accorded to the judgment in a contested civil trial than to an interlocutory judgment or order or a consent order approved by the court It can never, however, be appropriate to explore the extent to which an individual judge considered and appraised the merits of a proposed settlement in any particular case
4 Where the later proceedings do constitute a collateral attack upon a consent judgment approved by the court in previous proceedings they may, and ordinarily will, be an abuse of the process unless the plaintiff can properly allege a breach of duty which either (a) deprived the plaintiff of a reasonable opportunity of appreciating that better terms were available whether on settlement or at a contested hearing than the plaintiff obtained or (b) placed the plaintiff in the position of having to accept a settlement significantly less advantageous or more disadvantageous than he should have had
5 A plaintiff seeking to mount a collateral challenge to an earlier judgment or order will be required to explain why steps were not taken to set aside or challenge the judgment or order complained of in the original proceedings The court will be reluctant to sanction the initiation of satellite proceedings against legal advisers, and will never do so without substantial grounds It will never be enough that the plaintiff is suffering from post-settlement remorse
6 Pending reconsideration of Rondel v Worsley and Saif Ali by the House of Lords, the ratio of those cases is binding on lower courts Any extension of the core forensic immunity beyond the limit recognised in those cases must be rigorously scrutinised and clearly justified by considerations of public policy Where later proceedings are objectionable as an abusive collateral challenge to an earlier judgment of the court that fact cannot, on its own, afford a public policy ground for granting forensic immunity
7 Forensic immunity (as distinct from the protection accorded to those who, in any capacity, participate in legal proceedings in court) is enjoyed only by those who, whatever their professional qualification, are in respect of any relevant act or omission acting as advocates
8 There can be no general rule that a lawyer is or is not immune from liability in advising a client to settle a case, and immunity does not depend on when or where such advice is given All depends on the advice given, the reason for it and the complaint made about it
We now turn to the four appeals
Arthur JS Hall & Co v Simons
"each and every act or omission of [the Solicitors] relied upon is covered by the immunity from suit arising out of the conduct of the management of the cause"
made by Mr Simons against the Solicitors To explain what those allegations were and to provide the background to our conclusions it is necessary to describe the underlying disputes between Mr Simons and the Owner in greater detail
commence the following day, and the evidence to be led in the course of it in some detail At 230 pm the Owner and the Architect's solicitors also attended, though by this time Mr Charles Fox had left, leaving his assistant to hold the fort The note prepared by the assistant clearly records the progress of the negotiations and the agreement ultimately reached The Owner reduced his claim to £15,000 and his costs, the Architect increased his contribution from 50% to £14,000 and 75% of the Owner's costs and Mr Simons dropped his counterclaim and agreed to pay to the Owner £1,000 and 25% of the Owner's costs but on terms that he was free to pursue his third party claim against ALD The note records Counsel's consistent and strong advice to Mr Simons to settle and Mr Simon's reluctance to do so because "he could not see the point in the matter going on over five years [if] it was going to be settled eventually"
a) the Solicitors had failed to advise him that his defence based on the agreement with the Owner reached in May 1987 was weak and should be compromised;
b) the Solicitors were in breach of the express term of their retainer alleged by Mr Simons that he would at least recover his own costs;
c) the Solicitors had failed to inform Mr Simons at any time before 19th August 1991 that he should settle the Owner's claim on the terms that he was ultimately forced to accept;
d) the Solicitors had failed to understand the guarantee provided by Sovereign, to obtain proper expert evidence in time or at all, to advise on the liability of ALD or to investigate its solvency
The essence of Mr Simons' complaint is that either the Solicitors should have advised him in the beginning to settle or they should have properly prepared for trial so that he could fight the case with unimpaired prospects of success The relief sought was damages for the loss of the opportunity to recover £4,550 under his counterclaim against the Owner and in respect of the liability to pay £1,000 and 25% of his costs to the Owner pursuant to the consent order
a) "does the immunity from suit apply to the settlement of 19th August, the settlement which occurred the day before the trial took place, or more appropriately, was listed to
b) "can Simons, the builder, evade immunity by alleging antecedent acts of negligence?"
c) "if so, does that apply to any antecedent act of negligence or only those not included in the ambit of the settlement?"
The judge also recorded that counsel for Mr Simons had not argued the second or third questions but had "left the other two questions to be decided by this court, but to, as it were, hold his fire with regard to such questions"
"There can be no doubt that a settlement of the case at court would attract immunity The question I have to decide is: did the settlement of 19th and not 20th August 1991 attract this immunity?It seems to me if all the parties gather as if for a trial when a trial is imminent and settle the case they are not to be distinguished from the same group actually appearing and settling the case on the very day of that trialTherefore, I answer the question does immunity from suit apply to the settlement of 19th August 1991 with the answer, "yes""
He answered the second question in the negative He said [transcript:12A-G]
"The purpose of a settlement is to reach a conclusion which may be adverse to the interests of one party or adverse to the interests of all the parties It may well be that that melting pot includes all sorts of issues, some of which are connected closely with the evidence which the parties may wish to bring Others are not connected closely with that evidence, but are very important to the parties It is impossible to distinguish one from the othera settlement is very closely connected with the trial of the issues because in my view it is a form of trial in itself Because all the issues are gone through perhaps in a short period, perhaps not overtly between the parties, but they are gone through often enough in great detailtherefore I say that the builder cannot evade this immunity by alleging antecedent acts of negligence"
In respect of the third question he considered that the only antecedent acts which were not so immune were those "not referable to the matters contained in the settlement" He concluded [transcript:13F-H]
"I consider that the settlement of a claim is effectively the same as the result of a claim tried at law, provided that settlement was closely connected with and contained the same personnel and materials as would have been the case if the settlement had been concluded either at the door of the court or after the beginning of the trial and I would not extend the immunity as enunciated by the Court of Appeal to settlements of cases other than those"
then there was nothing left in the claim to be pursued at a trial In that event, he claimed, there was no point in analysing the pleadings to see which act or omission did not come within the Rees v Sinclair principle for there was no viable claim for damages consequential on that act or omission alone It is unnecessary for us to consider that submission further for we have concluded that no act or omission of the Solicitors could be immune It follows that the action must proceed to trial so that the facts may be found and any consequential liability ascertained
Barratt v Woolf Seddon (a firm)
enforce the agreement if he failed to sign the documents embodying the same, and that a refusal to sign would simply lead to extra costs being incurred
In the meanwhile, on 5 September 1991, on the basis of an agreed minute of order filed together with forms 76A from both the husband and the wife each asserting the approximate value of the home at £320,000, and in the husband's case the form being signed by the solicitors on his behalf, an order was made by District Judge Keyes which "by consent" provided that the minute of order should stand as the order of the court The minute recited "upon hearing the solicitors for the [husband and the wife] ", and provided, so far as material, for the sale of the home with the wife to receive £163,000 out of the net proceeds
During 1992 the husband's financial position worsened and the home did not sell, albeit the price was reduced
The home was ultimately sold in August 1993 for £249,000
1 failing at any stage to obtain or advise the obtaining of a valuation of the home;
2 failing to advise that any agreement or order providing for the division of proceeds of sale of the matrimonial home should provide for parties to receive percentage interests,
rather than for the wife to receive a guaranteed sum;
3 failing to advise that the court would not necessarily be obliged to make an order in the terms of the settlement reached between husband and wife;
4 lodging at the court a form 76A recording inaccurately the value of the home at £320,000
For the reasons already indicated he was wrong to take the view that B v Miller had been so comprehensively overruled What is more Blofeld J seems to have thought that the position of a solicitor and the position of an advocate were precisely the same and approached the case from that standpoint For reasons already discussed we disagree with that approach
In our view the case should not have been struck out for abuse of process on the collateral attack principle
The solicitors were not in our view acting as advocates in relation to any alleged act of negligence, and furthermore the conduct said to be negligent was not in any area where the solicitor could say that he was acting where public policy, the rationale for immunity, had any impact Even the failure to put in the correct value in a form to be presented to the court does not seem to us to fall within the area for which immunity was designed for advocates and should not therefore be held to exist for solicitors
We would allow the appeal
Cockbone v Atkinson, Dacre & Slack
20th June 1991, the Husband retained Atkinson, Dacre & Slack ("the Solicitors") to act for him
The claim was settled at the Harrogate County Court on 22nd August 1991 on terms that the Husband should pay £250,000 to the Wife by instalments, the unpaid part being secured on his farm in the meantime An order to that effect was made, pursuant to s33A Matrimonial Causes Act 1973, by District Judge Grills on the same day On 10th April 1992 the Husband, appearing in person, was refused leave to appeal from that order In May and June 1995 the Husband started proceedings in the Leeds County Court against, amongst others, the Solicitors claiming damages for negligent handling of his case, and for the use of undue pressure and blackmail inducing him to enter into the settlement and to consent to the order On 30th October 1997 His Honour Judge McGonigal, sitting as a deputy judge of the Queen's Bench Division, struck out the Husband's claim against the Solicitors on the grounds that they were immune from suit in respect of their actions and advice leading to the settlement on 22nd August 1991 This is an appeal of the Husband from that order
proper typed form but the Valuer communicated the results to the Solicitors that evening The Valuer also communicated with Mr Stephenson, and agreed to meet him at court the following day
"Cockbone is a typical farmer He lives in cloud cuckoo land and will say whatever comes into his head at that particular moment He persists in these arguments that the farm makes no money (which might be the case since it is clearly so badly managed), but nevertheless he has a large milk quota which should be profitable and a significant area of land, even if some is rough Also that equipment is leased, as if this makes any difference, and finally that the Partnership Agreement means that only one third or less can be taken into account
It is quite possible unless you stand your ground that you will be the subject of verbal bullying by Mr Cockbone The most robust stance with him is absolutely vital
The inadequacy and superficiality of these instructions is greatly regretted, but please be assured that it is only with very great effort and urgent expenditure of much time that we have got this far
Please conduct the case simply to the best of your ability with the information at your disposal We are well aware it is less than adequate"
"We [sc the Husband and sons] signed the order or they would come round with sale notices and sell the farm over our head How do you get on with Judge Grills if he does not like the look of you he can take a big swing against you Don't be a bloody fool, you will be in the driving seat Case is costing £20,000 a day It was heated and nasty
There was no discussion with us of how they came to the figure of £250,000 or what other option there was such as going in front of District Judge Grills for a full hearing where he would make a decision
The pressure was too much for us and with me nearly going to prison for not paying maintenance I had already paid and could not afford, we signed the Order We did not know we was giving Mrs Cockbone first legal charge on my property or how I was supposed to pay this huge amount of money and keep our living I did not go in front of the judge I was so upset I went straight home"
"Mr Walker of Atkinson Dacre and Slack was given Mrs P A Cockbone's valuation on 19 June 1991 He failed to have before the Court on 22 August 1991 the following on my behalf:-1 An accurate valuation of the matrimonial assets then available for distribution
2 A proper (or any) analysis of the indebtedness of my farming business
3 Evidence of the tax implications of the Consent Order (nor were the tax consequences of the Order considered)
4 Any evidence as to how I would be able to comply with the terms of the Consent Order
"There was no explanation of the legal ramifications of signing a Consent
Order nor of the fact that Mrs P A Cockbone was given Legal Charge and the right to sell the property to get the money
Mr Walker did not apply to the Court for an adjournment until 20 August 1991""Undue Pressure""Undue pressure in the Court Office was applied to force us to sign the consent Order by saying "If you don't sign the Consent Order they will come round and put sale notices up and sell the farm over your head" "How do you get on with Judge Grills? If he does not like you he will take big swings against you" "This case is costing £20,000 a day, don't be a bloody fool you will be in the driving seat" This was blackmail"
- The Husband contends that the valuations and financial statements were inaccurate in that the assets were overvalued, liabilities of the farming business were omitted and the tax and costs of the sales needed in order to comply with the order ignored He asserts that if these defects had been rectified then it would have been seen that his net assets did not exceed £189,500 In that event, he contends, the order in favour of the Wife would have been for substantially less and capable of being satisfied by a transfer to her of the two blocks of land, valued at £130,000, referred to by Stephensons in their valuation made in July 1990 The Husband contends, as alleged in the particulars,
"If the case on 22 August 1991 had been conducted and executed properly there would have been no need to try to get the Consent Order overturned"
All these allegations were denied by the Solicitors in their amended defence served in April 1997
- On 4th August 1997 (the trial of the action having been fixed for 4th November 1997), following the decision of the Court of Appeal in Kelley v Corston the Solicitors applied to strike out the proceedings against them on the grounds that they were frivolous and vexatious and otherwise an abuse of the process of the court At the commencement of the hearing before Judge McGonigal on 9th October 1997 he granted the application of the Solicitors to re-amend their defence By their re-amendment the Solicitors claim, relying so far as necessary on s62 Courts and Legal Services Act 1990, that (1) the settlement was negotiated by counsel instructed by them on behalf of the Husband at the door of the court and was therefore so intimately connected with the proceedings that counsel was immune from suit in respect of it;(2) the Solicitors having so instructed counsel properly relied on his advice in respect of the settlement so as themselves to be immune;(3) the consent order giving effect to the settlement had been approved by the court as required by s33A Matrimonial Causes Act 1973 so that by reason of such judicial intervention the Solicitors were immune
- In his reserved judgment delivered on 30th October 1997 Judge McGonigal considered the decision of this court in Kelley v Corston  QB 686 He concluded that counsel would have been immune from suit if sued by the Husband in respect of his advice regarding the settlement He then analysed the decision of Holland J in Landall v Dennis Faulkner & Alsop  5 MedLR 268, referred to the speeches of Lords Wilberforce and Diplock in Saif Ali v Sydney Mitchell & Co  AC 198 at pp214 and 222 and the terms of s62 Courts and Legal Services Act 1990 After observing that it was clear from the affidavit of the Husband that the advice as to the settlement came from both counsel and the Solicitors he said [transcript:15]
"In Kelley v Corston the Court of Appeal held that a barrister advising a client regarding a consent order under the Matrimonial Causes Act 1973 is immune from suit Accordingly, pursuant to section 62, a solicitor advising a client regarding such an order is also immune"
- The judge then dismissed the allegations of blackmail and undue pressure exerted on the Husband to induce him to settle As to those allegations he said [transcript:15]
"I am satisfied that [the Husband] is using these words as hyperbole The pressure he alleges consisted of such things as warning him that the court could order a sale of the farm to provide capital for [the Wife] or that continuance of the litigation would be very expensive"
He concluded, therefore, that the Solicitors were immune from suit in respect of any claims
brought by the Husband in respect of their actions and advice on 22nd August 1991 relating to
the consent order
- Judge McGonigal then dealt with the complaints against the Solicitors in respect of their acts and omissions before 22nd August 1991 He analysed them as being
a) the failure of the Solicitors to obtain a valuation of the matrimonial assets in sufficient time before the hearing fixed for 22nd August 1991 so as to enable them and counsel to advise the Husband as to the appropriate level of payment at which to settle;
b) the failure of the Solicitors to apply for an adjournment, so that such a valuation might be produced, until 16th August 1991;
c) the failure of the Solicitors to advise the Husband at any time as to the principles on which the court acts in determining the level of ancillary relief and the likely basis for a settlement or order;
d) the failure of the Solicitors properly to instruct counsel in time for him to give independent consideration to the issues and advice to the Husband;
e) the failure of the Solicitors to advise the Husband as to the implications of any settlement or order with regard to the realisation of sufficient money and the tax consequences of doing so
- In that context he considered the speeches of Lords Wilberforce, Diplock and Salmon in Saif Ali v Sydney Mitchell & Co  AC 191 at pp 213A-B, 222 and 227H, the test propounded in Rees v Sinclair and s62 Courts and Legal Services Act 1990 He concluded that any decision as to what pre-trial work attracted immunity should be tested by the reasons for the immunity, namely
"a) that all who participate in proceedings before a court should be immune from suit in /respect of what they do and say or omit to do or say;
b) that the integrity of public justice should be maintained by discouraging collateral attacks on a decision of one court by relitigation of the same issue before another court or by the need to prevent the immunity of participants in court proceedings being outflanked"
He considered that each of the complaints, as analysed by him, was immune for one or both of the reasons for the immunity to which he had referred However he also decided that if he were wrong about immunity he would not strike out the Husband's claims for they were not so obviously unfounded as to justify their summary dismissal before trial
- On 23rd October 1998 the Solicitors applied for leave to serve a respondent's notice out of time They ask this court to uphold the decision of the judge on the further grounds that the consent order made on 22nd August 1991 involved judicial intervention in the form of the court's approval, that the claim of the Husband involved a collateral attack on such order and because the judge should have concluded from all the papers before him that the claim of the Husband was bound to fail and should be struck out under the inherent jurisdiction of the court as an abuse of the process of the court This application was opposed by the Husband We consider that the Solicitors should have the extension of time they sought The questions of immunity were all questions of law which had been fully argued by counsel for parties in the same interest as the Husband in one or more of the other appeals Plainly such issues should be considered in the case of this appeal also With regard to the claim that the decision of the judge should be upheld because the Husband's claim was hopeless we do not think that the Husband would sustain any prejudice or disadvantage if the Solicitors are allowed to rely on that contention He did not suggest that he had relied in any way on the absence of a respondent's notice in his preparation for the hearing of the appeal Thus the questions which arise on this appeal are whether the claims against the Solicitors must fail because (1) the solicitors are immune from such suit (2) the claims are precluded by the Hunter principle and/or (3) they are wholly without merit
- Before us the Husband appeared in person In advance of the hearing he had sworn an affidavit on 14th May 1998 and submitted two skeleton arguments on 5th October and 1st November 1998 extending in all to 18 typed pages During the hearing he read to us from a manuscript with which he provided us with copies From these documents it is clear that he contests each and every one of the judge's findings against him In addition, though suffering from the disadvantages of extreme deafness, the gravamen of his complaint was clear enough He objected strongly to the patronising and dismissive tone of the confidential note from the Solicitors to counsel But he relied on it as showing clearly that the Solicitors had not properly prepared for the trial He contended that, though instructed on 20th June 1991, they had done much too little and much too late to prepare for the hearing in circumstances when they knew of the date for which it had been fixed and of his profound disagreement with the Stephenson valuation He submits that in these circumstances the Solicitors cannot escape liability by relying on the opinion of counsel when they knew that counsel had not been properly instructed by them He contends that what happened on 22nd August was not due to any judicial intervention but was the consequence of the almost total lack of preparation for the hearing
- In accordance with our conclusions as to the general principles to be applied we do not share the judge's conclusion that the Solicitors are entitled to the immunity attaching to an advocate The Solicitors did not act as advocates in relation to any of the matters of which the Husband complains Nor in failing to prepare adequately for the hearing did they rely on counsel's advice Accordingly the immunity, if any, must be found in the proper application of the Hunter principle That principle is available because the order required the intervention of the court because of the provisions of s33A Matrimonial Causes Act 1973
- There is no doubt that all the acts and omissions of the Solicitors of which the Husband complains are relied on for the proposition that but for those acts or omissions the order of the court would have been for a substantially lower sum But it does not follow from such consequence that immunity must attach to the act or omission in question The Hunter principle does not preclude relitigation in cases where there is fresh evidence which casts an entirely new light on the case In our view this exception is capable of applying in this case;whether it does will depend on the facts as found at the trial For that reason also we would not accept the contention advanced by the Solicitors that the whole of the Husband's claim is so lacking in merit as to be liable to be struck out under the inherent jurisdiction of the court
- It is elementary that in any contested application for ancillary relief it is necessary to have full and proper valuations and financial information The Solicitors knew from the outset that the Husband contested the figures on which the Wife relied No doubt they had problems obtaining the documents and clear instructions from the Husband but it has not been explained to
our satisfaction why there was not sufficient time to obtain all that was required between 10th July 1991, when the Solicitors knew that legal aid had been granted, and 22nd August when the hearing took place The valuations subsequently obtained by the Husband indicate that the court
might well have accepted substantially lower values than those attributed to the farming assets by Stephensons It is not at all clear to us that the liabilities of the business were fully taken into account nor that the liabilities for tax and the costs of sale which would arise from the sales necessary to enable the Husband to comply with an order for so large an amount as £250,000 were ever considered
- It is an integral part of the Husband's claim that undue pressure was put upon him and his sons to agree to the settlement because due to the lack of preparation by the Solicitors the case could not be fought with any prospect of success Though the judge may have been right about the hyperbole associated with the claim we do not think that the allegation of undue pressure should be struck out By contrast it is clear to us that the allegation of blackmail is without any foundation at all Indeed it appears to us that the Husband was using the word in a wholly different sense to that which would be understood by a lawyer As this allegation either adds nothing to the allegation of undue pressure or is without any factual foundation but is, in either event, liable to be misunderstood we agree with the judge that it should be struck out
- For these reasons we allow the appeal in this case also and, with the exception of the allegation of blackmail, which is to remain struck out, discharge the order of Judge McGonigal This action should now proceed to trial without further delay
Harris v Scholfield Roberts & Hill (a firm)
- This is an action brought by Mrs Harris (the wife) against two firms of solicitors As against the first firm (the first solicitors) she alleges negligence in relation to the conduct of her application for ancillary relief which resulted in a consent order being made by Deputy District Judge Derbyshire on 22 November 1991 at the Barnstaple County Court As against the second firm (the second solicitors) she alleges negligence in relation to the conduct of an appeal from that order which was struck out for want of prosecution
On 22 January 1998 District Judge White struck out the wife's claim against the first solicitors on the ground that it was vexatious and an abuse of the process of the court, but on 13
May 1998 Toulson J allowed the wife's appeal and reinstated the action against that firm No application was made by the second solicitors to strike out the claim against them
- This is the first solicitors' appeal from the decision of Toulson J, the grounds of the appeal being that (1) the wife's claim against the first solicitors constituted a collateral attack on the decision of Deputy District Judge Derbyshire, and was an abuse on that basis;(2) that in the alternative the role of the first solicitors was indistinguishable from that of counsel and that the first solicitors were entitled to immunity;and (3) that in any event the first solicitors and Mrs Harris acted on the basis of counsel's advice and thus the chain of causation was broken This latter point was not pursued
- Once again the facts must be taken essentially from the statement of claim and the presumption must be that the facts would be established if there was a trial
On 8 November 1991, the first solicitors on behalf of the wife obtained counsel's advice in relation to her claim for ancillary relief On the basis that the husband was earning £40,000, and that the wife was on income support (she being a self-employed psychotherapist/lecturer whose earnings were equalled by her business expenditure), he advised that the wife was entitled to periodical payments for herself, unlimited in time, of £8,120 per annum The counsel also advised that since the husband was apparently cohabiting with a female colleague at work, the solicitors should obtain discovery of the financial position of that colleague by way of voluntary disclosure or a witness summons
- The same counsel was briefed for the hearing of the wife's ancillary relief hearing on 22 November 1991 Shortly before that date he became unavailable, and the solicitors had to brief different counsel at short notice Outside the court this counsel advised that the wife should consent to an order that she should be provided with "periodical payments at the rate of £5,500 per annum payable in equal monthly instalments on 24th each month commencing 24th December 1991 and ceasing 24th November 1993" ie a total of £11,000 The order further provided that the parties' capital claims should be dismissed The husband, prior to the order being made, had represented that his relationship with his colleague had broken down, and that thus her financial position was irrelevant That was untrue in that in fact the husband had married the colleague on 30 July 1991
Once the wife discovered that the husband had deceived her and the court she went to the second solicitors They commenced an appeal against the consent order, and much later commenced a further application to set aside the consent order Both the appeal and the application to set aside were dismissed for want of prosecution on 24 November 1994
- The allegations of negligence against the first solicitors can be summarised as follows:
1 failure to brief counsel competent in the relevant field;
2 failure to inform themselves of counsel's advice on lifelong maintenance and/or the authorities that told against termination of maintenance;
3 failure to take account of the wife's instructions;
4 failure to investigate properly the position of the colleague;
5 incorrect advice that it was easy to overturn a consent order if the husband turned out to be lying
- Toulson J held first, that the action was not an abuse of process on the collateral attack principle, and second, that public policy did not seem to him to require the solicitors to be held immune for the acts of negligence alleged His approach is not far removed from that suggested as appropriate in this judgment He suggested that the approach of Judge LJ (supported obiter by Pill and Butler Sloss LJJ) in Kelley v Corston justifying immunity came close to applying the collateral attack principle under another guise He also made the point that whereas full hearings carry with them all the normal rights of appeal, consent orders have the feature that there may be
only very limited rights of appeal, and thus it would be ironic if the collateral attack principle applied with the same rigour to such orders when the action was alleging negligence against the lawyers who advised the entry into the consent order He distinguished the factual situation in Kelley v Corston from the facts of the case before him on the basis that there was no suggestion that the court that made the order in Kelley v Corston had not been properly informed, and he held that the action was not an abuse of process on the collateral attack principle
- On immunity he reviewed certain of the authorities and concluded that the authorities
were based on the view of the court as to where public policy lay, and he took the view that if the allegations made against the solicitors were true then public policy did not require the plaintiff to be left without a remedy
- In accordance with the principles discussed earlier in this judgment, we start with the question whether this action is an abuse of process on the collateral attack principle In our view it clearly is not, because the alleged breaches of duty (which it has to be said are credible allegations), if established, prevented the plaintiff having a reasonable opportunity of appreciating that there were very much better terms available either on settlement or on a full hearing It can properly be alleged that if they had briefed competent counsel, taken account of relevant authorities and investigated the colleague's position, an entirely different and more advantageous settlement would have been likely
The fact that the order as obtained was appealable because of the dishonesty of the husband and then not pursued by the second solicitors may be a factor to be considered in relation to causation, but it was not (as recorded by Toulson J's judgment page 73), a point taken as being decisive of the appeal on its own
In our view the judge was right to conclude that the action was not an abuse of process on the collateral attack principle
- Are the solicitors immune?
The solicitors in this case were not acting in any way as advocates That disposes of any suggestion that there might be immunity But in any event if it could be contemplated that a barrister as advocate might lawfully have performed any of the actions for which the solicitors are criticised, it does not seem to us that there would be immunity for the barrister Even if we had felt constrained by Kelley v Corston to hold that counsel were immune insofar as he was advising on settlement at the door of the court, we would not have been prepared to hold that acts done, or more accurately not done, prior to the settlement negotiations starting and which would lead to an inadequate settlement being concluded would be immune unless those acts could be said to be protected for public policy reasons ie by the rationale for which immunity can be justified An example of such an act would be an insistence that certain witnesses should not be called as part of the advice leading to settlement, but none of the acts alleged can be supported by any public policy rationale
In our view the judge was right on this issue also and this appeal should be dismissed
- In summary, therefore, we allow the appeal in Hall v Simons, Barratt v Woolf Seddon and Cockbone v Atkinson Dacre & Slack, with the minor or consequential orders we have indicated and dismiss the appeal in Harris v Scholfield Roberts & Hill Before parting with these appeals we should like to add our appreciation for the assistance we have obtained from all counsel involved We also commend the practice of grouping for a single hearing a number of appeals raising the same general point of law in different factual circumstances It saves time and helps the court to appreciate the ramifications of its decision
ORDER (not part of judgment):
Appeals allowed with costs in the cases of Simons, Cockbone and Barratt;appeal dismissed with costs in the case of Harris;there to be a new trial of the action and counterclaim in the case of Hall;the application to strike out in the case of Cockbone be dismissed save for the allegation of blackmail which shall remain dismissed;the application to strike out the statement of claim in the case of Barratt to be dismissed;legal aid taxation in the cases of Simons, Barratt and Harris;the matter to be taxed but not paid until final outcome of action;application for leave to appeal refused