B e f o r e :
MR. JUSTICE LLOYD JONES
|| Patricia Stella Awoyomi
||- and -
||Nadine Radford and Julia Postill
Mr. Geraint Jones QC (Direct Public Access Scheme) for the Claimant
Mr. Justin Fenwick QC and Mr. Ben Elkington (instructed by Messrs. Fishburns, 60 Fenchurch Street, London EC3M 4AD)
for the Defendants
Hearing dates: 23rd and 24th April 2007
HTML VERSION OF JUDGMENT
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MR. JUSTICE LLOYD JONES:
- This is the trial of preliminary issues in an action in which the Claimant seeks damages for professional negligence against the defendants.
- The parties have agreed that I should proceed, for the purposes of the trial of the preliminary issues only, on the following assumed facts. The Claimant was charged on indictment at the Inner London Crown Court with dishonestly obtaining loans from building societies and obtaining housing benefit payments by furnishing false information. Her trial commenced on 16th October 1995. She pleaded not guilty to all charges. She was represented in the criminal proceedings by the barristers who are the First and Second Defendants in this action. Some days into the trial, on the 28th November 1995, the trial judge asked to see all counsel in chambers. All counsel, including the Defendants, attended that meeting. During the course of that meeting, the trial judge informed the Defendants that in the event of the Claimant then pleading guilty to some or all of the counts against her, she would not receive an immediate custodial sentence. The Defendants had a meeting with the Claimant immediately after the meeting with the trial judge ended. Neither Defendant informed the Claimant of the trial judge's indication of sentence in the event of the Claimant entering one or more guilty pleas at that stage of the proceedings. However, at that meeting with the Claimant the Second Defendant strenuously attempted to persuade the Claimant to change all or some of her pleas to guilty. The Second Defendant informed the Claimant that she had to plead guilty or she would go to jail. The Claimant, who had not been informed of the trial judge's statement, refused to plead guilty. The meeting between the Defendants and the Claimant became highly acrimonious.
- Following the meeting and after receiving advice from the Professional Standards Committee of the Bar Council, the Defendants declined to act further for the Claimant. The Claimant was then represented in the criminal trial by different counsel. At the end of the trial the Claimant was convicted of a number of offences and sentenced to three years' imprisonment. The Claimant accepts that she was rightly convicted.
- On 6th November 2000 the Claimant wrote to the Defendants informing each of them that she intended to commence proceedings against them for breach of retainer and negligence. She set out her case further in a letter of the 21st December 2000. The Defendants, through solicitors appointed on their behalf, acknowledged the Claimant's letters. However, nothing further was heard from the Claimant until 6th June 2006 when she served the claim form in this action. That claim form had been issued on 18th May 2006.
- On 20th July 2000 speeches were delivered in the House of Lords in Arthur JS Hall & Co. (a firm) v Simons  1 AC 615.
- The Defendants deny the allegations of negligence against them. However, this hearing has been limited to the following preliminary issues:
i) Whether the claim is statute barred;
ii) Whether (on the assumption that the Defendants were immune from suit in 1995) they now remain immune.
- Section 2, Limitation Act 1980 provides:
"An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
It is not suggested on behalf of the Claimant that any of the provisions of the Limitation Act which create exceptions to the operation of section 2 apply in this case.
- On behalf of the Claimant Mr. Geraint Jones QC submits that the effect of the decision of the House of Lords in Hall v Simons is that the Defendants no longer enjoy immunity. Furthermore, he submits that no cause of action can accrue in the absence of a competent Defendant. Accordingly, in the present case no cause of action arose while the Defendants enjoyed immunity. That immunity was only removed by the decision of the House of Lords in Hall v Simons with effect from the 20th July 2000, the date on which the speeches in that case were delivered. That was the first date upon which there was a person capable of being sued in respect of the negligence alleged. The six year limitation period only began to run against the Claimant from that date. The claim form was issued on the 18th May 2006 within the six year period.
- On behalf of the Defendants Mr. Justin Fenwick QC submits that time began to run against the Claimant for the purposes of limitation in 1995, despite the fact that the Defendants were then immune from suit in relation to their forensic conduct. Furthermore, when the decision in Hall v Simons was given, no cause of action arose for the first time, time did not begin to run for the first time on a pre-existing cause of action nor did time begin to run afresh on a pre-existing cause of action. Moreover, Hall v Simons did not have retrospective effect, with the consequence that the Defendants remain immune from suit in respect of their forensic conduct in 1995.
- It is not necessary, for present purposes, to refer in any great detail to the history of the immunity from suit of advocates. A long-established rule of common law prevented barristers from being sued in negligence. Following the decision of the House of Lords in Hedley Byrne & Co. Ltd. v Heller & Partners Ltd.  AC 465 that a person who negligently performed professional or other duties could be sued in tort, barristers' immunity could no longer be justified on the basis that barristers had no contract with their clients. Accordingly, in Rondel v Worsley  1 AC 191 the House of Lords adopted a new rule confined to acts concerned with the conduct of litigation based on its view of the requirements of the public interest in the administration of justice. This immunity also extended to solicitors. The House of Lords justified the immunity by reference to the duty owed by advocates to the court, the analogy of the privilege enjoyed by witnesses in legal proceedings, the dangers of collateral challenge and the cab rank rule.
- In Saif Ali v Sydney Mitchell & Co. (a firm)  A.C. 199 the House of Lords considered the scope of the immunity established in Rondel v Worsley. The majority concluded that the immunity extended, so far as out of court activity was concerned, only to work which was so "intimately connected" with the conduct of the case in court as to amount to a decision as to how it should be conducted at the hearing. In that case, a barrister's failure to advise on the joinder of additional parties fell outside the scope of the immunity. There was no challenge to the authority of Rondel v Worsley itself.
- In 1998 in Hall v Simons the Court of Appeal heard three appeals concerning claims in professional negligence against solicitors in respect of advice they had given (or had not given) in relation to the settlement of actions. In each case, the judge at first instance had upheld the plea of advocates' immunity from suit and struck out the claim as an abuse of process of the court. The Court of Appeal heard the three appeals together. That Court was bound by Rondel v Worsley and Saif Ali and allowed all three appeals on the basis, entirely consistent with those authorities, that the alleged negligence was outside the scope of the immunity. The appeals against the decisions of the Court of Appeal came before a House of Lords comprising seven Law Lords. Following a fundamental attack by the respondents on the very existence of the immunity, the House of Lords considered whether the immunity could any longer be justified. Without challenging the authority of Rondel v Worsley, the House of Lords concluded (unanimously) that circumstances had changed to such an extent since 1969 that the public interest in the administration of justice no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of civil proceedings. It also held (by a majority) that the public interest no longer required that advocates enjoy immunity from suit for negligence in the conduct of criminal proceedings.
- In these proceedings its been submitted both by Mr. Jones on behalf of the Claimant and by Mr. Fenwick on behalf of the Defendant that the abolition of the immunity of advocates by the House of Lords in Hall v Simons has only prospective effect. It is necessary to consider this submission in some detail.
- The general rule is that when judges state what the law is, their decisions have a retrospective effect. In Kleinwort Benson Ltd. v Lincoln City Council  2 AC 349 Lord Goff considered (at pp. 378-9) that that is inevitable not only in relation to the particular case before the court, in which the events must have occurred some time before the judge's decision is made, but also in relation to other cases in which the law as so stated will in future fall to be applied. In Deutsche Morgan Grenfell Group plc. v. Inland Revenue Commissioners  UKHL 49;  3 WLR 781 Lord Hoffmann expressed the matter in the following terms:
"One [question] is whether judges change the law or merely declare what it has always been. The answer to this question is clear enough. To say that they never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude. But the other question is whether a judicial decision changes the law retrospectively and here the answer is equally clear. It does. It has the immediate practical consequence that the unsuccessful party loses, notwithstanding that, in the nature of things, the relevant events occurred before the court had changed the law
" (at p. 23)
- Prospective overruling would, therefore, be an exception to the general approach in this jurisdiction. Prospective overruling is well established in certain other jurisdictions, notably in the jurisprudence of the Court of Justice of European Communities (see Defrenne v Sabena  ICR 547; Case C-209/03 R (Bidar) v Ealing London Borough Council  QB 812; the Opinion of Advocate General Jacobs in Case C-475/03 Banca Popolare di Cremona v Agenzia Entrate Ufficio Cremona, 17 March 2005, at para. 75) and the European Court of Human Rights (see e.g. Marcks v Belgium (1979) 2 EHRR 330, 353, p.58.). Within the United Kingdom the devolution legislation makes express provision for courts to have the power to limit the temporal effect of certain decisions in limited circumstances (Government of Wales Act 1998, section 110; Scotland Act 1998, section 102; Northern Ireland Act 1998, section 81.) Notwithstanding the observation of Lord Goff in Kleinwort Benson Ltd. v Lincoln City Council (at p. 379) that a system of prospective overruling has no place in our legal system and the observation of Lord Hobhouse in R v Governor of Brockhill Prison, ex parte Evans (No. 2)  2 AC 19 that prospective overruling is a denial of the constitutional role of the court, in In Re Spectrum Plus Ltd.  UKHL 41;  2 AC 680 the House of Lords accepted that there could be circumstances where prospective overruling would be necessary to serve the underlying objective of the courts which is to administer justice fairly in accordance with the law. However, the seven members of the House of Lords who sat in that case made it clear that to overrule a case with prospective effect only would be a wholly exceptional course. Their Lordships did not consider that the case before them fell into that exceptional category of case in which prospective overruling would be legitimate.
- I turn, therefore, to the submission that the abolition of immunity in Hall v Simons was intended to have only prospective effect. It is clear that Lord Hope would have followed such a course. In accepting that the House of Lords should accept the opportunity provided by the appeals for reviewing the fundamental question of immunity he observed:
while I would not regard it as necessary in order to dispose of these appeals for your Lordships to say that any change as regards the immunity rule should operate retrospectively, I consider it to be a legitimate exercise of your Lordships' judicial function to declare prospectively whether or not the immunity which is a judge-made rule is to be available in the future and, if so, in what circumstances." (at p.710 A-B)
In his conclusion, Lord Hope differed from the majority in that he considered that it is in the public interest that the core immunity of the advocate against the claims by his client in negligence should be retained in criminal cases. However, he considered that it could no longer be justified in civil cases. He continued:
"But I consider that this is a change in the law which should take effect only from the date when your Lordships deliver the judgment in this case. I also would dismiss these appeals but I would do so for the same reasons as those given by the Court of Appeal and not on the ground that by 1991 it was already clear that the core immunity did not extend to work done by advocates in civil cases." (at p.626 H).
It would have been open to the other members of the House of Lords to adopt a similar approach. They all agreed with the reasoning of the Court of Appeal that the conduct in question did not fall within the scope of the immunity. They could have decided the case on that basis and could have abolished the immunity with prospective effect. However it is clear that they did not do so. Had they intended to take such a radical approach they could have been expected to explain in terms that that was what they proposed to do, as did Lord Hope. It is clear, to my mind, that the other members of the House of Lords decided that no immunity applied to the conduct in question in those appeals, all of which conduct occurred in 1991. Thus, Lord Steyn expressed his conclusion in the following terms:
"Given the conclusion that the immunity no longer exists, it follows that the appeals must fail." (at p. 684 A).
(See also Lord Browne-Wilkinson at p. 684 B, Lord Hoffmann at p. 707 D-F, Lord Hutton at p.729 H; Lord Hobhouse at p. 752 A-B; Lord Millett at p.753 E-F.)
- It was to be another five years after the speeches were delivered in Hall v Simons before the House of Lords decided in In Re Spectrum Plus Ltd. that there could be circumstances in which prospective overruling would be necessary and appropriate. That was the first occasion on which that issue was decided by their Lordships and the entire tenor of the speeches in In Re Spectrum Plus Ltd. was that prospective overruling was not something which had occurred previously in this jurisdiction. (See, for example, Lord Hope at para. 66). Moreover, the discussion of Hall v Simons in the speeches in In Re Spectrum Plus is wholly inconsistent with Hall v Simons having been a case of prospective overruling. (See Lord Nicholls at para.14; Lord Hope at paras. 72-3.)
- Nevertheless, I readily accept that Hall v Simons is not a conventional application of the declaratory principle. There, the House of Lords concluded that in changed social circumstances the immunity of advocates could no longer be justified. As a result the immunity was abolished. However their Lordships emphasised that they were not to be taken as stating that Rondel v Worsley was wrongly decided at the time it was decided. (See e.g. Lord Steyn at pp.682H 683A; Lord Hoffmann at p.704B-C.) Rondel v Worsley was not overruled. Rather, the House of Lords considered that circumstances had changed and those changes had to be reflected in the law. Lord Nicholls describes such a situation in In Re Spectrum Plus at p.34:
"At one time the judicial function of overruling previous common law decisions was sought to be rationalised by the "declaratory" theory. Sir William Blackstone said that "if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law": Commentaries on the Laws of England 1st Ed. (1765) 401, p.70. If "law" is given one of its several possible meanings, this theory is still valid when applied to cases where a previous decision is overruled as wrong when given. Most overruling occurs on this basis. These cases are to be contrasted with cases where the later decision represents a response to changes in social conditions and expectations. Then, on any view, the declaratory approach is inapt. In this context the declaratory approach has long been discarded. It is at odds with reality." (at p.34)
However, it does not follow from this that the overruling was intended to have only prospective effect. On the contrary, the decision of the House of Lords in Hall v Simons proceeds, in my judgement, on the basis that the change in the law should apply retroactively to the conduct which formed the subject of the appeals. It is one thing to say that the earlier authorities were not wrong when decided and another to say that the new law has no retroactive effect.
- However this does leave the question as to when advocates ceased to enjoy immunity. In this regard assistance is provided by the fact that in each of the three appeals before the House of Lords in Hall v Simons the alleged negligent conduct had taken place in 1991. For the reasons I have set out above, I consider that their Lordships, with the exception of Lord Hope, decided the appeals on the basis that the immunity of advocates in respect of the conduct of civil proceedings could in 1991 no longer be justified on grounds of public policy. (See, in this regard, Lord Hope's formulation, cited at para. 16 above, of the basis on which he chose not to put his decision.) By 1991 the immunity was no longer justified and accordingly no immunity should be accorded in proceedings relating to conduct at that date. Although the appeals which were the subject of Hall v. Simons concerned civil proceedings, the majority of their Lordships considered that there was no longer any justification for immunity in respect of civil or criminal proceedings. There is nothing in the speeches of the majority who considered that immunity could no longer be justified in criminal proceedings to suggest that this development occurred at a more recent date than the corresponding development in relation to civil proceedings.
- In the present case the conduct of the Defendants which the Claimant seeks to criticise occurred in 1995. For the reasons set out above, I consider that by that date advocates no longer enjoyed immunity in respect of civil or criminal proceedings. If that is correct, there could have been no impediment to the Claimant suing in negligence for the alleged breach of duty by her professional advisers once such breach had caused loss in the form of her imprisonment. There would have been a completely constituted cause of action and the Defendant would not have enjoyed any immunity from suit. Whatever might be the effect of immunity on the accrual of a cause of action, in the absence of any such immunity in the present case all of the elements of the cause of action accrued in 1995 and the limitation period of six years began to run. It expired before the claim was issued on the 18th May 2006 and the claim is therefore time barred.
- In these circumstances, it is strictly unnecessary to consider whether, had any immunity existed, it could have prevented the accrual of the cause of action. However, in deference to the arguments of counsel, I should nevertheless consider whether, had the advocates' immunity subsisted in 1995, it would have prevented the accrual of the cause of action.
- The starting point must be to consider what precisely is meant by the expression "accrual of a cause of action." In Sevcon Ltd. v Lucas CAV Ltd.  1 WLR 462 Lord Mackay adopted the definition of "cause of action" given by Lord Esher MR in Coburn v Colledge  1 QB 702, a definition which was agreed by the other members of the Court of Appeal and which has since been frequently applied by the courts. He defined "cause of action" as "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court."
- In support of his submission that the immunity of the defendant would have prevented the accrual of a cause of action Mr. Jones relies on the following passages from textbooks. First, he relies on Clerk & Lindsell on Torts, 19th Ed., (2006) which states at para. 3317:
"There can be no cause of action if there are not in existence both a potential claimant and a potential defendant and so, for example, if goods belonging to an intestate's estate are converted, time will not begin to run until letters of administration have been granted. Similarly, if the wrongdoer is entitled to diplomatic immunity at the time of the tort there is at that time no defendant capable of being sued and time will not, therefore, begin to run until he ceases to be so entitled."
The authorities referred to in footnotes in support of these propositions are Thomson v Lord Clanmorris  1 Ch 718 at pp. 728, 729; Musurus Bey v Gadban  1 QB 533; and Douglas v Forrest (1828) 4 Bing. 686 at p. 704.
Secondly, he refers to Halsbury's Laws of England, 4th Ed., (1997) Vol. 28 para. 822 which states:
"822 Persons capable of suing or of being sued. A cause of action cannot accrue unless there is someone in existence capable of instituting the action and another person in existence who can be sued. If a person is in such a position that, even if an action were brought and judgment given against him, the judgment could not be enforced, a cause of action cannot accrue against him."
The authorities referred to in the footnotes in support of the statements in the text relating to a person capable of being sued are Douglas v Forrest; Re Russo-Asiatic Bank, Re Russian Bank for Foreign Trade  Ch. 720; and Musurus Bey v Gadban.
I was also referred to Preston and Newsom on Limitation of Actions, 4th Ed., which states at paragraph 2.1.3 that:
"A cause of action arises therefore at the moment when a potential plaintiff first has a right to succeed in an action against a potential defendant. There must be a plaintiff who can succeed and a defendant against whom he can succeed: see Thomson v Lord Clanmorris
A person protected by diplomatic privilege cannot be sued: Musurus Bey v Gadban
- On behalf of the defendant, Mr. Fenwick accepts that before a cause of action can accrue there must be in existence a claimant and a defendant as a matter of fact. Thus, in the example given by Clerk & Lindsell, no cause of action can arise in favour of an intestate's estate until letters of administration have been granted. To my mind, a number of the authorities to which I have been referred are examples of the same principle. In In Re Russo-Asiatic Bank; In Re Russian Bank for Foreign Trade  1 Ch. 720 the Bank of England sought to prove in the liquidation of the English branch of a Russian bank for the proceeds of bills of exchange. Eve J. held that the Statute of Limitations was no defence to the application because the Russian bank ceased to have any corporate existence in Russia as a result of decrees of the Soviet Government made on a date before the bills matured. As from that date of the decrees there was no debtor who could be sued. In Douglas v. Forrest (1828) 4 Bing. 686 the Plaintiffs sought to claim in debt against Forrest as executor of Hunter. Forrest argued that the debt was statute barred. However, Best C.J. held that it was not. The plaintiffs had no cause of action until there was some person within the realm against whom the action could be brought. Best C.J. observed:
"Cause of action is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue." (at p. 704)
Hunter had never been in England after the cause of action accrued against him. After his death abroad there was no person in England against whom the plaintiffs could proceed until Forrest took upon himself to act as executor. However, it may be that this decision turns on the effect of the statute 4 & 5 Anne c. 3, s.19 (The Administration of Justice Act 1704), considered further below, which provided for limitation to run from the date of the return of a debtor to the jurisdiction and the principle that an action could not be maintained against an executor until he had taken upon himself to act as such or proved the will. The observation of Best C.J. that no one has a complete cause of action until there is somebody that he can sue must be considered in this context.
- These decisions should be contrasted with Smith v. White Knight Laundry Ltd.  EWCA Civ 660;  1 WLR 616. There a company was restored to the register pursuant to section 651 Companies Act 1985 on the application of claimants in a personal injury action. The Court of Appeal held that since the effect of restoration to the register was to render its dissolution void ab initio any cause of action against the company accrued on the date on which it would otherwise have accrued but for the dissolution.
- The other authority referred to by Clerk & Lindsell in the passage cited above is Thomson v Lord Clanmorris  1 Ch 718. There Vaughan Williams L.J. observed (at pp. 728-9) that a statute of limitations cannot begin to run unless there are two things present: a party capable of suing and a party liable to be sued. However, this observation was made in the context of the question of when a cause of action by shareholders arose against company directors for loss or damage sustained by reason of an untrue statement in the prospectus of a company on the basis of which they had subscribed for shares. Vaughan Williams L.J. explained that the Statute of Limitations could not run from the time of the preparation or issue of the documents containing the untrue statement. Under the statute in question there could not have been any cause of action until there had been a subscription for the shares. This statement, does not, therefore, provide any support for the Claimant's case.
- At the forefront of his submissions Mr. Jones places the decision of the Court of Appeal in Musurus Bey v Gadban  2 QB 352. Musurus Bey had been the accredited Ambassador of the Sultan of Turkey in London for some thirty years prior to his recall in December 1885. He wound up his official and personal business and in February 1886 he returned to Turkey where he lived until his death in 1890. In 1892 his executors brought proceedings against the defendants who sought to counterclaim in debt for money lent by them to Musurus Bey in 1873 while he was Ambassador in London and which, it was alleged, had never been repaid. The principal issue was whether the executors could rely on the statute of limitations in answer to that counterclaim. The Court of Appeal (A.L. Smith and Davey L.JJ.) held that the counterclaim was not statute barred.
- The decision has sometimes been cited as authority for the proposition that the existence of immunity in a defendant prevents the accrual of a cause of action. Thus in Smith v White Knight Laundry Ltd.  EWCA Civ 660;  1 WLR 616 Jonathan Parker L.J., in summarising the submissions of counsel, stated (at p.30) that in Musurus Bey "the Court of Appeal held that no cause of action could accrue against the debtor during such period as he enjoyed diplomatic immunity." Before me, both Mr. Jones and Mr. Fenwick accepted that Jonathan Parker L.J. should not be taken to have expressed a considered view on the point. However, on closer examination it may be that Musurus Bey is authority for a rather narrower proposition.
- The immunity in issue in Musurus Bey v. Gadban was the immunity ratione personae of an ambassador. That case was, therefore, concerned with a jurisdictional immunity accorded to accredited diplomats to enable them to perform their functions on behalf of the State they represent. It is capable of being waived by that State.
- It is also necessary to consider the legislation which was applicable in that case. The statute of limitations which was applicable was 21 Jac. 1, c. 16, s.3 (The Limitation Act 1623) which provided that all actions in debt should be commenced within six years after the cause of action and not after. Furthermore 4 & 5 Anne c. 3, s.19 (The Administration of Justice Act 1704) provided:
That if any Person or Persons against whom there is or shall be any such Cause of Suit or Action for Seamens Wages, or against whom there shall be any Cause of Action of Trespass, Detinue, Actions Sur Trover, or Replevin for taking away Goods or Cattle, or of Action of Account, or upon the Case, or of Debt grounded upon any Lending or Contract without Speciality, of Debt for Arrearages of Rent or Assault, Menace, Battery, Wounding and Imprisonment, or any of them, be or shall be, at the Time of any such Cause or Suit or Action given or accrued, fallen, or come, beyond the Seas; that then such Person or Persons, who is or shall be intitled to any such Suit or Action, shall be at Liberty to bring the said Actions against such Person and Persons, after their return from beyond the Seas, so as they take the same after their Return from beyond the Seas, within such Times as are respectively limited for the bringing of the said Actions before by this Act, and by the said Act made in the one and twentieth Year of the Reign of King James the First."
Accordingly, this provides that if persons are beyond the seas at the time of the accrual of a cause of action against them, the claimants shall be at liberty to bring such actions within six years after the defendant's return from beyond the seas.
Similarly, 3 & 4 William IV, c.42, s.4 provides:
That if any Person or Persons that is or are or shall be entitled to any such Action or Suit, or to such Scire Facias, is or are or shall be, at the Time of any such Cause of Action accrued, within the Age of Twenty-One Years, Feme Covert, Non compos mentis, or beyond the Seas, then such Person or Persons shall be at liberty to bring the same Actions, so as they commence the same within such Times after their coming to or being of full Age, discovert, of sound Memory, or returned from beyond the Seas, as other Persons having no such Impediment should according to the Provisions of this Act, have done; and that if any Person or Persons against whom there shall be any such Cause of Action is or are or shall be, at the Time such Cause of Action accrued, beyond the Seas, then the Person or Persons entitled to any such Cause or Action shall be at liberty to bring the same against such Person or Persons within such Times as are before limited after the Return of such Person or Persons from beyond the Seas."
So far as diplomatic immunity is concerned, 7 Anne, c.12, s.3 provided:
all writs and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador, authorized and received as such by Her Majesty, her heirs or successors, may be arrested and imprisoned, or his goods and chattels may be distrained seized, or attached, shall be deemed and adjudged to be utterly null and void to all intents constructions and purposes whatsoever."
- In his judgment in Musurus Bey, A.L. Smith L.J. referred to the statutory provisions cited above, other than the statute of William IV, and then cited the following passage from the judgment of the Court of Queen's Bench, delivered by Lord Campbell, in The Magdalena Steam Navigation Company v Martin 2 El. & El. 94:
"[An Ambassador] does not owe even a temporary allegiance to the Sovereign to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He is not supposed even to live within the territory of the Sovereign to whom he is accredited, and, if he has done nothing to forfeit or to waive his privilege, he is for all juridical purposes supposed still to be in his own country."
A.L. Smith L.J. then continued:
"These being the principles upon which an ambassador is independent of the civil jurisdiction of the country to which he is sent, in my judgment it is clearly inconsistent with them to hold that an ambassador, who has at least as great privileges of exemption from suits as the Sovereign whom he represents, can, even apart from the 7 Anne, c. 12, have a writ sued out against him commanding him in the name of Her Majesty to appear in her Court to answer the claim of one of her subjects, even although such writ is not to be served.
Moreover, what jurisdiction is there to sue out a writ in the form of a writ for service in this country against a Turk resident in Turkey, or to serve such a writ upon a Turk in Turkey? And yet this was and is the true legal position of Musurus Pacha, from the date he first became an ambassador in London until he died in Turkey in 1890."
This passage suggests very strongly that A.L. Smith L.J. considered that the combined effect of the fiction of extra-territoriality of an ambassador enunciated in the Magdalena Steam Navigation Co. case and the subsequent actual absence of Musurus Bey from this country led to the result that Musurus Bey was to be regarded as absent at all material times. (Both judges considered that during the period between his presentation of his letters of recall and his leaving the country, during which time he was reasonably winding up his official business, he was not to be deprived of his immunity.) On that basis, the limitation period would not begin to run until his return from beyond the seas.
- Later in his judgment A.L. Smith L.J., having concluded that it would not be open to a claimant to issue a writ and to renew it until such time as it was possible to serve it, continued:
"For these reasons, in my judgement, it is not competent either to sue out a writ against an ambassador, even though it is not to be served, or to renew it, and therefore Messrs Gadban & Watson had no cause of action against Musurus Pacha prior to December 7, 1885, when he presented his letters of recall. There is another ground which is also fatal to the contention of the plaintiff. It has been held that as on the one hand there cannot be a cause of action within the meaning of the Statute of James from which the six years will commence to run unless there be a person in existence capable of suing (Murray v East India Co. 5 B. & A. 204, at p. 214) so on the other hand there can be no such cause of action until there is somebody who can be sued: Douglas v Forrest 4 Bing. 686, at p. 704. "Cause of action" says Best C.J., "is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue". As Messrs Gadban & Watson had no such person, at any rate down to December 7, 1885, the statute had not commenced to run before that date." (at pp. 357-8)".
It is likely that this is the passage which has given rise to the statements in the textbooks quoted above. However, it is not clear from this passage whether the lack of somebody who can be sued is due to the immunity of the ambassador or, by virtue of the statute of 4&5 Anne, his actual or notional absence from the country.
- In his judgment Davey L.J. confined himself to considering three specific arguments, namely whether issuing a writ without serving it would have been a breach of the ambassador's privilege, whether during the two months that Musurus Bey remained in this country after his recall the writ might have been issued and served and whether Order 11 had had the effect of repealing the provisions of 4 & 5 Anne c. 16, s.19. In considering the first of these matters, Davey L.J. referred to the fact that the statute of 7 Anne c.12 makes all writs and processes against an ambassador null and void. Accordingly, any writ which might have been issued would have been void. There would have been a total want of jurisdiction of the court to entertain the action at all. He concluded that Gadban
"could not have properly issued a writ against Musurus Pacha or (in other words) had no right of action against him while he was ambassador". (at p.362).
While I would accept that this passage can be read as supporting Mr. Jones's submission that the immunity itself prevented the accrual of cause of action, the position is far from clear.
- I would respectfully agree with the observation of Diplock J., as he then was, in O'Connor v Isaacs  2 Q.B. 288 p.326 on the subject of Musurus Bey v Gadban:
"In that case it was held that while the Turkish Ambassador was entitled to diplomatic immunity time did not run. I will not cite the judgments in that case; I will merely say that I find considerable difficulty in understanding exactly what the ratio decidendi of the Musurus Bey case was. It seems to have been based, at any rate in part, on the view of the extra-territoriality of the Ambassador, or alternatively on the non-existence of a person who could be sued." (at p. 326).
It may well be that Musurus Bey turns on the effect of the statutory provisions referred to above, none of which remains in force, and the fiction of extra-territoriality which is no longer the basis of diplomatic immunity in English law or international law. At the very least, it can be said that one explanation of why no cause of action was considered to have accrued in that case is to be found in the combined effect of the statute of 4 & 5 Anne and the fiction of extra-territoriality, as opposed to the existence of immunity per se. As a result, I do not consider that Musurus Bey v Gadban provides unequivocal support for the wider proposition for which the claimant contends.
- Whatever may be the true explanation of Musurus Bey v Gadban, more recent authority on diplomatic immunity has adopted a different approach which it is difficult to reconcile with the submission on behalf of the claimant.
- In Dickinson v Del Solar  1 KB 376 the plaintiff sought to recover damages against the defendant, the First Secretary at the Peruvian Legation, in negligence following a road accident. Immunity was waived by the ambassador and judgment was entered against the defendant. The defendant's insurers refused to indemnify him, inter alia on the ground that the defendant was not under any liability. In holding the insurers liable Lord Hewart C.J. stated:
"Diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The accurate statement is that they are not liable to be sued in the English Courts unless they submit to the jurisdiction. Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction."
- In Empson v Smith  1 QB 426 the claimant had let her house to the defendant, an administrative officer in the Canadian High Commission in London. The defendant gave notice to terminate the tenancy. In March 1963 the plaintiff began proceedings in the county court for damages for breach of the tenancy agreement. The relevant law on diplomatic immunity at that date was contained in the Diplomatic Privileges Act 1708 (7 Anne, c.12) and the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act 1952. In March 1963 the registrar stayed the action on grounds of immunity. On 1st October 1964 the Diplomatic Privileges Act 1964 came into force. This had the effect of limiting the immunity of members of the administrative and technical staff of a mission to acts performed in the course of their duties. The plaintiff applied for removal of the stay and the defendant applied for an order dismissing the action on the ground that it was a nullity. The judge struck out the action on the ground that the proceedings were a nullity at the time they were begun and not affected by the Act of 1964. The plaintiff appealed to the Court of Appeal which allowed the appeal.
- The relevance of the decision for present purposes lies in the following matters. First, the Court of Appeal emphasised that diplomatic immunity is not immunity from legal liability but immunity from suit. Statutes relating to diplomatic immunity from suit are procedural statutes. Accordingly, the 1964 Act was applicable to suits brought after the date on which that statute came into force in respect of acts done before that date. Secondly, notwithstanding the terms of section 3, Diplomatic Privileges Act 1708 a writ issued in the High Court against a diplomat was not void ab initio. (See e.g. In Re Suarez  1 Ch.176.) It followed therefore that until steps were taken to set it aside or to dismiss the action the plaintiff's plaint was not a nullity but a valid plaint. The effect of the change in the law brought about by the commencement of the 1964 Act was, arguably, the removal of a procedural bar. Accordingly the appeal was allowed and the action remitted to the county court for determination of whether the acts complained of were performed outside the course of the defendant's duties. Thirdly, there is no suggestion in the judgments that no cause of action accrued until the removal of the immunity. On the contrary, the court clearly considered that a cause of action had arisen notwithstanding the previous existence of immunity. In this regard, Danckwerts LJ, with whose judgment Sellers LJ agreed, referred to the statement of Lord Hewart C.J. in Dickinson v Del Solar that diplomatic agents are not immune from legal liability and concluded:
"The result is that if the immunity ceases, the cause of action, if not barred by the Limitation Act, 1939, will remain." (at p.435 E-F).
- Mr. Jones on behalf of the claimant submits that Empson v Smith was decided per incuriam because the court failed to take account of Musurus Bey v Gadban. Accordingly, he submits that I am bound by the earlier authority to hold that no cause of action arises so long as the immunity of the defendant subsists. I am unable to accept this submission. First, Musurus Bey was cited in Empson v Smith. It is referred to by Diplock L.J. at p.437E albeit in relation to the distinct point of the continuation of immunity after a diplomat ceases to be en poste. Nevertheless, the Court of Appeal in Empson would certainly have had in mind the reasoning of the court in Musurus Bey, not least because one member of the court in Empson, Diplock L.J., had previously referred to the difficulties of that reasoning in his judgment in O'Connor v Isaacs. Secondly, the reasoning of the court in Empson is entirely in accordance with principle. Immunity from suit is distinct from questions of liability and there is no reason why the existence of an immunity from suit should prevent the accrual of a cause of action. Accordingly, to my mind the clear and more recent reasoning in Empson v Smith is to be applied in preference to that of Musurus Bey, to the extent that they are inconsistent. Empson v Smith makes clear that the existence of diplomatic immunity does not prevent the accrual of a cause of action.
- Accordingly, even if one accepts the analogy which Mr. Jones seeks to draw with diplomatic immunity, these authorities do not to my mind support his contention.
- Mr. Fenwick relied on a number of reported cases in other contexts which show that the existence of a procedural bar to bringing proceedings does not prevent accrual of a cause of action for purposes of limitation. In particular, he relied on Sevcon Ltd. v Lucas Ltd.  1 WLR 462 where the House of Lords held that on its true construction section 13(4) of the Patents Act 1949 provided rights to an applicant for letters patent immediately after the publication of the complete specification and that a cause of action accrued at the date of a subsequent act of infringement notwithstanding that at that date the letters patent had not been granted. The leading speech was delivered by Lord Mackay who, having referred to Coburn v Colledge  Q.B. 702 and Central Electricity Board v Halifax Corporation  AC 785, concluded:
"[T]he true principle as illustrated in the cases to which I have referred is that time runs generally when a cause of action accrues and that bars to enforcement of accrued causes of action which are merely procedural do not prevent the running of time unless they are covered by one of the exceptions provided in the Limitation Act itself." (at p. 467 G)
- The former principle of advocates' immunity was an immunity and not a non-liability. It was an immunity from suit and restricted access to the court. It is referred to throughout the speeches in Rondel v Worsley, Saif Ali and Hall v Simons as an immunity rooted in public policy. In Saif Ali Lord Wilberforce referred to the evolution of the duty of care in the tort of negligence and its expansion as new situations come before the courts, but considered that this process which bears upon the existence of a duty of care should not lead the House of Lords to sweep away "an immunity from suit on special grounds of principle" (at p.213 D-E). In this regard, he also distinguished "immunity from an action which depends upon public policy" from the privilege which protects participants in legal proceedings (which is unconnected with a barrister's duty to his client) and the substantive defences available to barristers (at pp. 214 E 215 A). In Hall v. Simons Lord Steyn (at p. 681 F-G) referred to the immunity as an anomalous exception to the basic premise that there should be a remedy for a wrong. Lord Hoffmann (at p. 688 G-H) took as his starting point the proposition that in general English law provides a remedy in damages for a person who has suffered injury as a result of professional negligence and considered that any exception which denies such a remedy requires a sound justification. Lord Hope (at p 711 F) considered that under the common law the presumption is strongly in favour of the right of the individual to a remedy and that any immunity from suit must be clearly justifiable. In terms of human rights law the immunity was a derogation from the right of access to the court which required to be justified under Article 6 ECHR on the grounds of public interest (at p. 711 F-G, 724 H). Lord Hobhouse (at p. 736 E-F) considered a submission that the rule was, in truth, a statement that no duty of care existed within the "immune" area, apparently as an application of the public policy third leg of the "Wilberforce" test. Lord Hobhouse rejected that submission, concluding that what is in issue is a true immunity.
- It appears that in other contexts the modern tendency may be to give effect to public policy considerations by reference to the scope of the duty of care: see, for example, Capital and Counties plc v. Hampshire C.C.  QB 1004. However, I consider that it is clear from the authorities cited in the preceding paragraph that the former rule of "advocates' immunity" was indeed an immunity from suit as opposed to a limitation on the scope of a substantive duty of care.
- For these reasons, if it were necessary to decide the point, I would hold that even if the rule of advocates' immunity had subsisted in 1995 it would not have prevented the accrual of a cause of action and would not have prevented the running of time for the purposes of limitation. However, it is not necessary for me to decide this point and I prefer to rest my decision on the basis that in 1995 there was no impediment to the Claimant bringing proceedings against these Defendants for alleged breach of professional duty.
- Accordingly, I decide the preliminary issues as follows:
i) The claim is statute barred.
ii) The Defendants were not immune from suit in 1995.