heinonline -- 21 legal stud. 644 2001

HeinOnline -- 21 Legal Stud. 644 2001

EHRLR 2002, 5, 660-663 FOR EDUCATIONAL USE ONLY Page 1E.H.R.L.R. 2002, 5, 660-663 (Cite as: E.H.R.L.R. 2002, 5, 660-663)

European Human Rights Law Review

2002

Case Comment

CIVIL PROCEDURE: RIGHT OF ACCESS TO COURT IMPEDED BY BARRISTER'S IMMUNITY TO PROSECUTION AND UNAVAILABILITY OF LEGAL AID

Copyright (c) 2002 Sweet and Maxwell Limited and Contributors

Case: Patel v United Kingdom (38199/97) (Unreported, Februrary 19, 2002) (ECHR)

Legislation: European Convention on Human Rights 1950 Art.6(1)

Subject: HUMAN RIGHTS. Other related subjects: Legal profession.

Negligence

Keywords: Barristers; European Court of Human Rights; Immunities; Professional negligence; Right to fair trial

Abstract: Admissibility of claim that striking out of claims for

negligence in preparation and conduct of case against barrister on basis of barristers' immunity and possible refusal of legal aid amounted to breach of Art.6(1) ECHR.

*660 Patel v. United Kingdom (Application No. 38199/97)

European Court of Human Rights (Second Section): February 19, 2002) (Admissibility). *661 Facts

The applicant was arrested on suspicion of prejudicing a drug trafficking investigation. He informed his counsel, Mr Y, that significant parts of two interviews with the police had never taken place and had been fabricated by them. Mr Y advised the applicant that accusing the police of lying would antagonise the judge. Following the advice of Mr Y, the applicant told the jury he had no recollection of parts of the incriminating interviews, rather than stating they never occurred. He was convicted and sentenced to four years' imprisonment. His appeal was rejected. The applicant's solicitor then applied to the Secretary of State and a complaint was made to the Police Complaints Authority ("PCA"). Although the PCA concluded that there were no grounds for criminal proceedings, during the investigation further material emerged which caused the Secretary of State to refer the case to the Court of Appeal.

Meanwhile, the applicant instituted proceedings for negligence against Mr Y. The applicant claimed that: (1) Mr Y recommended himself to act in the case which he was not professionally competent to conduct; (2) Mr Y was negligent in preparing the case for trial and in the advice which he gave; (3) Mr Y was negligent in the conduct of the case in court; (4) Mr Y gave incorrect and misleading information to the other lawyers involved in the case. The High Court struck out allegations (2) and (3) because they were covered by the immunity rule, but stayed the remaining heads pending the Court of Appeal decision. The Court of Appeal quashed the conviction because the evidence supported the applicant's claims of fabrication. The applicant then informed the Court that the parties to the civil litigation agreed for the proceedings to be discontinued.

The applicant argued that Article 6(1) had been violated because his civil claims against Mr Y were struck out on the basis of barristers' immunity. The Government maintained that the applicant had failed to exhaust his domestic remedies. Regarding allegations (1) and (4), the Government believed he could

Copr. © West 2004 No Claim to Orig. Govt. Works

EHRLR 2002, 5, 660-663 FOR EDUCATIONAL USE ONLY Page 2E.H.R.L.R. 2002, 5, 660-663 (Cite as: E.H.R.L.R. 2002, 5, 660-663) have pursued them because the Court of Appeal quashed the applicant's conviction. As for heads (2) and (3), which were struck out because of barristers' immunity, the Government argued that the applicant could have re-amended his statement of claim to include such grounds. The applicant argued he would have been denied access to court because he would not have been granted legal aid to revive claims (2) and (3) as he had already been given compensation. Decision

The application was declared inadmissible as being manifestly ill-founded (unanimously).

The Court found that Article 6(1) was applicable because the applicant was suing in negligence against his former counsel; however, the real issue turned on whether the applicant was barred from access to court to obtain a determination of such civil rights. The Court noted that the applicant could have pursued heads (1) and (4) because the criminal conviction was quashed, and therefore no longer posed any obstacle. Further, the applicant could have amended his statement of claim to include that which was no longer covered by barrister's immunity. If he had done that, he would have had the opportunity to pursue heads (2) and (3). The applicant had argued that he could not have pursued the latter remedy because legal aid might have been refused. However, *662 the Court decided that that objection was not based on any lack of reasonable prospects of success. Cases Considered

Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1.

Tre Traktorer v. Sweden (1989) 13 E.H.R.R. 309.

Z and Others v. United Kindgom [2001] 2 F.L.R. 612

Applicant's Representative: Mr. D. Machover (Solicitor, Hickman Rose). Commentary

The decision of the House of Lords in Arthur J. S. Hall and Co v. Simons and Others (July 20, 2000) effectively abolished barristers' immunity which had been upheld by the Lords' judgment in Rondel v. Worsley [1969] 1 A.C. 191. This admissibility decision of the European Court re-affirms the requirement for applicants to exhaust available and effective remedies before going to Strasbourg, which will include, where necessary, amending pleadings in response to a judgment, or other change in domestic law, which means that a cause of action newly becomes available to the applicant. See also Roche v. United Kingdom, above, where the applicant successfully applied to adjourn his pending European Court case in the light of the European Court's judgment in McGinley and Egan which confirmed the need for the applicant to reactivate his domestic proceedings for a war pension, prior to pursuing his Strasbourg case.

The Court has repeatedly held that there is no absolute right to receive legal aid for cases regarding civil rights and obligations. For example, in Airey, the Court held that to require States to provide legal aid for civil disputes would be "so far-reaching" an obligation because no Convention article exists pertaining to such a requirement (Airey v. Ireland 2 E.H.R.R. 305). In contrast to civil cases, Article 6(3) protects the right to legal aid in criminal trials if the applicant proves he lacks sufficient means and shows that the interests of justice require legal aid to be granted. Unfortunately, the Court's jurisprudence has not progressed far enough to consider any denial of legal aid as an exhaustion of domestic remedies, even if the applicant could show s/he lacks sufficient means and could show that it would be in the interests of justice to pursue the case.

Applying the Court's jurisprudence to the case at hand, the Court recognised that the applicant failed to apply for legal aid even though the possibility was available to him. The Court also found that the applicant could have continued with his claims of negligence in the civil courts as a litigant in person and that practical difficulties or doubt regarding the result of a case would not in


EHRLR 2002, 5, 660-663 FOR EDUCATIONAL USE ONLY Page 3E.H.R.L.R. 2002, 5, 660-663 (Cite as: E.H.R.L.R. 2002, 5, 660-663) itself render a remedy ineffective or give rise to a denial of access to court. Given the difficulties with taking a complicated case before the domestic courts as a litigant in person, it is surprising that the Court's jurisprudence continues to be consistent regarding the granting of legal aid in civil cases even though the need for proper representation remains a vital element for a successful trial. Although the denial of legal aid may present an issue if the denial of legal access deprives an individual of effective access to court, as alleged in the present case, the Court's rather restrictive approach to legal aid civil cases is regrettable. In Airey v. Ireland, the Court found that the applicant was deprived of effective access to *663 court after her legal aid was denied because she could not represent herself, as the case involved complicated points of law with necessary expert witness evidence and would be emotionally burdensome on her. As evidenced by Airey, the Court has strict requirements in finding the denial of legal aid as depriving an individual of effective access to court. That said it is conceded that given the applicant failed to apply for continued legal aid because he assumed it would be denied, the Court's decision may not be that surprising. END OF DOCUMENT


12095R Print Request: Selected Document(s): 4 Time of Request: March 10, 2006 10:25 AM EST Number of Lines: 121 Job Number: 1821:88133003 Client ID/Project Name: Research Information: UK Law Journals ("Moy v Pettman") Send to: LNEPROF, 12095R UNIVERSITY COLLEGE DUBLIN LIBRARY BELFIELD DUBLIN, IRL 4

4 of 10 DOCUMENTS

NEW LAW JOURNAL

11 March 2005

(c) Reed Elsevier (UK) Ltd 2005

NLJ 155.7167(352)

LENGTH: 1998 words TITLE: At the door of the court AUTHOR: Chlo Phillips

Chlo Phillips is a solicitor in the lawyers' liability group of Reynolds Por-ter Chamberlain TEXT:

Defensive advocacy is not in the interests of justice, the Law Lords held in a recent decision on professional negligence. Chlo Phillips explains how door-of-the-court pressures have been eased post-Moy, and the latest position on cli-ent advice

* Moy v Pettman Smith (a firm) and its implications for negligence and cau-sation

* a new role for expert legal evidence?

The House of Lords' recent judgment in Moy v Pettmann Smith (a firm) [2005] UKHL 7, [2005] NLJR 218 provides comfort to advocates in relation to advice given to clients at the door of the court. It overturns the Court of Appeal's judgment in this matter which was considered too harsh, and which could have given rise to difficult causation issues. Practitioners in the professional neg-ligence field will also find of interest the Law Lords' comments on expert evi-dence.

Background

The case arises from the handling of the claimant's medical negligence claim by the defendant solicitors (P) and counsel (C). Mr Moy (M) broke his leg while playing football. An operation was negligently carried out (as admitted by the health authority) and he instructed P to make a claim on his behalf. As a result of a series of delays, medical evidence supporting M's continuing disability and its cause was not served in time, and P's application for leave to adduce addi-tional evidence and to adjourn the trial was refused at first instance and on appeal. The trial was set for April 1998 and the intention was to apply again for leave.

The health authority paid £ 120,000 into court in February, and increased this to £ 150,000 in March 1998. C advised in conference that the "floor" of the claim was £ 200,000 net. M accepted her advice that the payment into court of £ 150,000 should not be accepted.

At the door of the court, the health authority said that the offer of £ 150,000 was open for acceptance until the judge came into court. C advised M that she was hopeful that the further evidence would be allowed, and that it would be better not to accept the monies in court. C bore in mind that if she was not successful in her application and M was awarded damages that did not re-flect his claim for his continuing disability and future loss, he could fall back on a claim against the solicitors for negligence.

C did not discuss her thought process with M, or say to him that her view was that there was a 50:50 chance of succeeding in the application to adduce further

NEW LAW JOURNAL

evidence, and to adjourn the trial. It became apparent after preliminary discus-sions in court that the application was unlikely to succeed, and while the judge rose in order to read papers, C advised M that he should take the best terms available. He accepted the health authority's reduced offer of £ 120,000.

Negligence action

M commenced proceedings against P and C for negligence. His Honour Judge Ged-des found that P had been negligent in the conduct of the claim, and that find-ing has not been the subject of an appeal. He concluded that C was not negligent in failing to advise M to accept the health authority's offer of £ 150,000 prior to trial. He stated: "I have to try and put myself into the position of [C] at the time, and decide whether her advice fell outside the range of possi-ble advice which reasonably competent counsel of her seniority and purported ex-pertise could be expected to make. In my judgment it did not."

The solicitors appealed to the Court of Appeal against the dismissal of the claim against C, and the Part 20 claim against her. Although the majority of the Court of Appeal agreed that C's advice not to accept the payment in court was correct, they held that C had been negligent in failing to give more detailed advice to M, in light of the considerations she had in mind. Latham LJ, giving the leading judgment, considered it was difficult for the Court of Appeal to say the judge was wrong in holding that C's assessment of the chances of obtaining leave for the further evidence was not negligent. However, he went on to hold that C had been negligent in failing to give more detailed advice: in his view, "the only proper advice that [C] could have given in the light of her own as-sessment of the chances of persuading the Court to give leave to adduce further evidence was that the chances were 50:50. He was not given that advice".

Brooke LJ agreed with Latham LJ, and Hart J considered that in addition C's advice not to accept the offer of £ 150,000 was wrong and negligent.

House of Lords' decision

Defensive advice unhelpful

Lord Carswell gave the leading judgment in the House of Lords. He re-stated the basic principle as set out by Lord Salmon in Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 231: "Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barris-ters and, indeed, by judges, each of whom has exercised reasonable, and some-times far more than reasonable care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent."

Lord Carswell cited, with apparent approval, a passage from a case in the On-tario High Court Karpenko v Paroian, Courey, Cohen & Houston [1981] 117 DLR(3d) 383 which he considered material to this case. Anderson J stated, in relation to the situation where advice is sought on the question of settlement or continuing with proceedings: "I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst consti-tutes an error of judgment, which does not, is harder to answer. In my view it would only be in the case of some egregious error ... that negligence would be found."

The Law Lords acknowledged that the difficulties faced by an advocate who was advising on acceptance or rejection of a settlement are manifold and the pres-sures, especially if advice has to be given at the door of the Court, can be heavy. Lord Carswell said: "In such circumstances it would be surprising if every such piece of advice were reasoned with as much comprehensive precision as may be applied in hindsight by an appellate tribunal ... it would not be in the interests of ... clients if [advocates] were compelled by the effect of over-prescriptive decisions to adopt a practice of defensive advocacy in the conduct of litigation or advising litigants about the course to be taken ... Nor do I consider that to give clients a catalogue of every factor which might affect the course of action to be adopted ... would be a productive discharge of advocates' duty to give them proper advice."

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He noted that it was difficult to reconcile some of the comments made by the Court of Appeal, with its conclusion that C's failure to give detailed reasons for non-negligent advice meant that she was in breach of duty and therefore neg-ligent. Lord Carswell endorsed Brooke LJ's view that: "It would be a disaster to the conduct of litigation in this country if an effect of the decision of the House of Lords in Hall v Simons is that advocates believe that they have to hedge their opinions about with 'ifs' and 'buts' in order to avoid an adverse finding of professional negligence. They are being paid to express their opin-ion, and if they assess their clients' prospects at 25%, or 50:50 or 'strong', then that advice will usually suffice unless they are expressly invited to ex-plain it."

Their Lordships considered the Court of Appeal had been too harsh, and had difficulty following their logic for holding that C had been negligent, when the advice given to the client in terms of how to proceed had not been negligent.

Causation

The House of Lords considered it was not appropriate to consider the issue of whether sufficiently detailed advice was given separately from the issue of whether the advice given was non-negligent. It was not suggested that C's advice would not have been followed if she had explained the reasoning behind it, but had still made the same recommendation. The House of Lords therefore reinforced Arden LJ's remarks in White v Paul Davidson Taylor [2004] EWCA Civ 1511: LTL 18/11/04, indicating that the recent House of Lords decision of Chester v Afshar [2004] UKHL 41; [2004] 3WLR 927 is likely to be confined to medical negligence cases.

Baroness Hale of Richmond noted in Moy that while the law of medical negli-gence had developed principles governing what the patient is entitled to be told before deciding whether to agree to intrusive medical treatment, there is not a clear set of principles governing the terms in which an advocate's advice should be given. The advice was given at the court door, and Baroness Hale concluded that there is a respectable body of professional opinion that "the client pays for the advocate's opinions, not her doubts".

Implications for practitioners

The House of Lords recognised that, in practice, in the pressurised but all-too-common 'door of the court' situation, there is a limit to the amount of in-formation and options an advocate can convey to a client, and, in those circum-stances, the advocate is entitled to advise a course of action without detailing all the thought processes behind it. Clearly, what is expected where advice is given in conference or writing without the peculiar 'door of the court' pres-sures will be entirely different. However, lawyers may take comfort from this decision, which strengthens the line of authority indicating that it will be very difficult to show that 'door of the court' advice was negligent unless there has been an egregious error. It remains to be seen whether their Lord-ships' comments on expert evidence will result in practitioners seeking to ob-tain expert views on standards of care in all fields of legal practice.

A role for expert legal evidence in court?

Interesting comments were made by the Law Lords on how they could have been assisted by expert evidence in this case. Lord Hope made the point that in a claim for professional negligence, the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from, but no such evidence was adduced here. Practitioners dealing with claims against solicitors have, over recent years, encountered re-sistance to proposals that there should be evidence from legal experts, on the basis that a judge hearing the case will be in a position to take his own view on the appropriate legal practice once the facts have been determined (see, for example, the decision of Mr Justice Gray in Ball v Druces & Attlee [2003] EWHC 1360 QBD). Their Lordships' views in this case appear to indicate a shift away from that view, and it seems expert evidence may be helpful even in cases that do not involve particularly unusual circumstances or legal issues.

NEW LAW JOURNAL

Lord Hope said: "Judges, recalling how things were when they were in prac-tice, no doubt feel confident that they can do this for themselves [ie assess whether the relevant standard of care has been departed from] without evidence. But judges need to be careful lest the decision in the case depends on the stan-dard they would set for themselves. If this were to happen it would vary from judge to judge and become arbitrary. Considerable weight should therefore be given to the decision of the judge at first instance who heard all the evi-dence." (However, note the comments of His Honour Judge Geddes, p 352.)

Baroness Hale reinforced Lord Hope's views, stating: "In cases against advo-cates ... the court assumes that it can rely upon its own knowledge and experi-ence of advocacy ... . This brings, as Lord Hope has pointed out, an obvious risk that a judge will ask himself what he would have done in the particular circumstances of the case, but that is not the test. The doctor giving expert evidence in a medical negligence claim is not asked what he himself would have done, but what a reasonable doctor might have done."

International Insurance Law Review

1996

Article

THE BAR IMMUNITY: PRIVATE INTEREST OR PUBLIC POLICY? AN EXAMINATION OF

BARRISTERS' IMMUNITY

Francis Tregear.

Jacquetta Castle.

Copyright (c) 1996 Sweet & Maxwell Limited and Contributors

Subject: NEGLIGENCE. Other related subjects: Legal profession

Keywords: Barristers; Immunities; Professional negligence

Abstract: Origins and justification for barrister's immunity from liability for

negligence and its application in practice.

*239 INTRODUCTION

The immunity from liability for negligence enjoyed by barristers [FN1] remains

highly controversial. This is despite support in two House of Lords decisions and the

express extension of its application by Parliament in the Courts and Legal Services Act

1990 ("CLSA'). It is, however, clearly inconsistent with the important principle that

where there is a wrong there ought to be a remedy. It is also a source of discomfort to

barristers themselves. This may be because it can be perceived as favouritism entitling

them to unequal treatment under the law compared with other professionals. The

barrister's immunity, like any other immunity, is an exception and so will always be

the subject of sceptical scrutiny; it will constantly have to be justified.

THE IMMUNITY

In Rondel v Worsley the House of Lords held that a barrister was immune from an

action for negligence brought against him by a client in respect of his conduct and

management of a cause in court on the grounds of public policy. They also expressed

differing views (which were not necessary for the actual decision in that case) as to

the extent to which the immunity covered work outside court. In Saif Ali v Sidney

Mitchell & Co. the House of Lords had to determine the limits of the immunity in

relation to out-of-court work by a barrister, and held that the immunity covered not

only the conduct of a cause in court but extended to, but only to, any particular work

which was so intimately connected with the conduct of a cause in court that it could

fairly be said to be a preliminary decision affecting the way that the cause was to be

conducted when it came to a hearing.

THE ORIGINS

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In 1791, Lord Kenyon held that he could not entertain an action against a barrister for

negligence. With this, the bar immunity appears to have been born. [FN2] Lord Kenyon

seemed to regard the need for the immunity as being self-evident (he said that he

believed that the action was the first and, he hoped, would be the last of its kind).

It was only later that the soul-searching began and judges started looking for reasons

for the immunity and questioning why one small section of the professional community

should be accorded such a special privilege.

One reason suggested for the immunity was the absence of contract between the

barrister and his client (any contract was between the instructing solicitor and the

barrister). The barrister could not sue his client for fees; hence it followed that the

barrister could not be sued in negligence. [FN3] In Le Brasseur's case Lindley LJ

remarked that it was of the utmost importance that the court should not assist

barristers to recover their fees. If they did so the consequence would be to do away

with "the great protection of counsel against an action for negligence by his client'.

Following Hedley Byrne v Heller [FN4] and the recognition of tortious liability on the

part of professionals in the absence of any contractual relationship, the absence of

any contractual relationship could no longer be regarded as a valid reason for the

immunity and, indeed, was rejected by the House of Lords in Rondel v Worsley. [FN5]

The immunity has come instead to be based on "public policy'. As early as 1860, the

Court of Exchequer, in holding a barrister immune from suit, placed reliance on the

fact that in accepting instructions, counsel was taking on himself "an office or duty,

in the proper discharge of which not merely the client, but the court in which the duty

is to be performed, and the public at large, have an interest' and if a claim were to

be allowed "counsel would perform their duties under the peril of an action by every

disappointed and angry client'. [FN6] Of course, what can be justified on the grounds

of public policy in the year 1860 may, on those very grounds, be unsustainable at the

end of the 20th century. If the legal profession provides a service, why should the

consumer be deprived *240 of a valid remedy when a wrong has been committed and a loss

suffered? [FN7]

The modern basis of the bar immunity in the United Kingdom is explained in the two

House of Lords cases of Rondel v Worsley [FN8] and Saif Ali v Sidney Mitchell & Co.

[FN9]

Rondel v Worsley concerned a claim against a barrister in respect of pure "in-court'

work. Mr Rondel was in the service of the notorious landlord, Rachman. Early one

morning in April 1959, Mr Rondel went round to a property in west London owned by Mr

Rachman. At the house a violent altercation took place between Mr Rondel and the

doorkeeper and Mr Rondel was later convicted of grievous bodily harm, having bitten off

the doorkeeper's ear lobe and severely damaged his hand. At his trial Mr Rondel was

represented by Mr Worsley to whom he had given a "dock brief'. [FN10] Mr Rondel

subsequently sued his barrister, alleging that he had failed to call all relevant

witnesses and to put all necessary questions to the witnesses who were called. What

particularly upset Mr Rondel was the fact that he had wanted to establish that he had

inflicted the injury with his bare hands or by biting, rather than with the aid of a

knife, as the evidence indicated. The House of Lords unanimously held that a barrister

is immune from an action for negligence in respect of his "conduct and management' of a

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Int. I.L.R. 1996, 4(8), 234-244

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case in court. The immunity was not based on the absence of a contract between the

barrister and client but on public policy and long usage. Their Lordships considered

that the immunity could extend to pre-trial advice, but the question as to what extent

was left in some doubt. The precise limit of the immunity so far as it covers

"out-of-court' work is still uncertain (see below).

Saif Ali v Sidney Mitchell concerned the different issue of whether a barrister can

be liable for negligence in giving pre-trial advice. In this case the third party

barrister was instructed to settle proceedings on behalf of Mr Saif Ali who had been

injured while travelling as a passenger in a car. The barrister settled proceedings

against the owner (rather than driver) of the other car and failed to join either the

driver of the other car or the driver of the car in which Mr Saif Ali was travelling.

The limitation period expired before it was considered that in fact the drivers of the

two cars ought to have been joined. The proceedings were discontinued and Mr Saif Ali

recovered nothing. The House of Lords, by a majority of three to two, held that the

work in settling the proceedings did not entitle the barrister to the benefit of the

immunity.

The House of Lords held that the immunity was not confined to what was done in court

but included some pre-trial work; the question at issue was how far and to what extent

it covered such work. Lord Wilberforce considered that the phrase used by the House of

Lords in Rondel, "conduct and management', was not a "sharp definition'. [FN11] A more

precise definition of the protection conferred by the immunity was necessary. It was

considered that the immunity should not be given any wider application than was

absolutely necessary in the interests of the administration of justice. The House of

Lords applied the words used by McCarthy P in the New Zealand Court of Appeal case of

Rees v Sinclair. [FN12] The test to apply was whether the particular work was so

intimately connected with the conduct of the cause in court that it could fairly be

said to be a preliminary decision affecting the way that cause is to be conducted when

it comes to a hearing. This formula has been adopted in a number of different

jurisdictions as the touchstone of whether certain work is or is not covered by the

immunity. Despite the enthusiasm with which the formula has been adopted its

application is far from predictable.

JUSTIFICATION FOR THE IMMUNITY

In Rondel the House of Lords based the public policy principally on four separate

grounds. In reviewing the immunity and the basis for it in Saif Ali the majority of the

House of Lords reconsidered the force of these public policy grounds. Lord Diplock, in

particular, considered that only some out of the original grounds formed a justifiable

basis for the immunity.

In Saif Ali the House of Lords adopted a specific and restrictive approach. This

restrictive approach is undoubtedly the judicial mood in which the immunity is

approached. As a result the immunity is being limited more and more to court as opposed

to pre-court work.

The grounds identified in Rondel for considering that public policy required an

immunity for barristers were:

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• A barrister owes an overriding duty to the court which he should be able to

carry out fearlessly and independently. This role is essential to the administration

of justice and should not be compromised by any fear of being sued by the client.

• The barrister's immunity in relation to "in-court' work is part of the general

immunity which attaches to all persons participating in the judicial process, such

as judges, witnesses and jurors.

• An action for negligence against a barrister in relation to his conduct of

litigation in court would entail a retrial of the original action, bringing the

legal system into disrepute.

• If the immunity were lost, the barrister would have an incentive to breach the

"cab rank rule' which obliges him to accept any client, however difficult, who seeks

his services.

THE BARRISTER'S DUTY TO THE COURT

The special character of a barrister's work means that he owes not only a duty to

his client but also an overriding independent duty to the court. Thus, even if the

client gives instructions to the contrary and even if it is to the disadvantage of *241

the client, the barrister's public duty to the court must prevail over his private duty

to his or her client.

Lord Morris in Rondel referred to counsel in terms of "an amicus curiae' and of

counsel's duty to "assist in ensuring that the administration of justice is not

thwarted or distorted by dishonest or disreputable practices'. [FN13] Lord Pearce

referred to counsel as being "entrusted with great licence and potent weapons. These

must not be used simply with an eye to his clients' advancement. They must be used in

the pursuit of justice and to elucidate the truth in the public interest ...'. [FN14]

For example, counsel must not mislead the court; he cannot cast any unjustified

aspersions on any party or witness; and he cannot withhold documents or authorities,

even if they damage his client's case. Lord Reid emphasised that there was an implicit

trust between the Bench and the Bar which did much to promote the smooth and speedy

conduct of the administration of justice. Accordingly, the judiciary relied on the

independence of counsel as part of the judicial process and, so the argument runs, if

the implicit trust that exists between Bench and Bar is undermined and the barrister is

induced to prefer the interests of the client to his duties to the court, the system of

administration of justice will in turn be undermined. [FN15]

At a time when case management and the speedy progress of litigation through the

courts appear to be all important, the role of counsel in contributing towards the

efficient conduct of proceedings is even more critical today. At present decisions

which necessarily influence the course of the trial and its duration are made by

counsel and not by judges, although the new pre-trial review procedure gives the trial

judge greater scope to consider the trial timetable and make his own views known about

how the trial should progress. There are now examples of cases where the trial judge

has sought to impose time limits on examination and cross-examination of witnesses and

submissions. (Such examples may reflect the preoccupations of particular judges rather

than an existing general practice.) Nevertheless, counsel is still primarily

responsible for selecting and limiting the number of witnesses to be called; deciding

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what questions will be asked in cross-examination and what topics will be raised in the

opening and what points of law will be developed. In so doing, he will be exercising

his independent judgment so that court time is not taken up unnecessarily, even though

the client may wish him to "chase every rabbit down its burrow'. [FN16]

If the immunity were to be abandoned on the ground that public policy no longer

required it, counsel might feel the need, in order to protect himself, to call

limitless irrelevant witnesses or ask unnecessary questions, thereby prolonging trials

unnecessarily. At that point new case management powers might have to evolve to enable

judges to exercise the control over the progress of a trial previously exercised by

counsel. It is true that the best advocate knows when he is pushing at open doors, or

when he might annoy a judge by wasting time. Experience, competence and professionalism

in themselves should naturally militate against undue prolixity and in favour of the

optimum deployment of witnesses. However counsel's duty to the court was seen in Rondel

as an essential part of the administration of justice which justified the immunity.

Advocacy in court was treated as being in a very different category from any other

professional activity undertaken, even urgent and impromptu oral advice given in a

meeting or on the telephone. In Saif Ali Lord Russell referred to the "heat of battle'

and to the "obscurity of dust and smoke' in which counsel is often called on to make

decisions with respect to the conduct of the case. [FN17] Interestingly, Lord Russell

did not consider this factor to be an adequate basis for the immunity. The advocate who

has to think on his feet in the "hurly burly of the trial' is in a different position

from the barrister advising in the "relative tranquillity of his chambers'. [FN18]

The duty owed by a barrister to the court and the difficulties attendant on the

obligation "fearlessly' to present a client's case without the threat of a negligence

action were considered a sufficient basis for the public policy conferring an immunity

in Rondel. They were grounds which did not, however, impress the majority of the House

of Lords in Saif Ali. Lord Diplock characterised it as a "pretentious way of saying

that when a barrister is taking part in litigation he must observe the rules; and this

is true of any profession'. [FN19] In relation to the point that a barrister may be

called on to exercise "finely balanced judgments on matters about which different

members of the profession might take different views' [FN20] Lord Diplock felt that

that was an insufficient reason for conferring immunity and compared the difficult

decisions which have to be made by salvors and surgeons, observing that the absence of

any immunity did not prevent them from giving their best services. It would seem,

therefore, that this public policy ground no longer forms the basis of the immunity.

THE GENERAL IMMUNITY FOR THOSE PARTICIPATING IN THE JUDICIAL PROCESS

Lord Diplock then dealt with the general immunity from civil liability available to

judges, court officials, witnesses, parties and legal representatives and considered

that it was a ground for protection from liability for a barrister. It was a general

immunity "designed to ensure that trials are conducted without avoidable stress and

tensions of alarm and fear in those who have to take part in them'. [FN21] As has been

observed by Michael Zander in his note on Saif Ali in the Modern Law Review [FN22] Lord

Diplock "did not explain how this reason justified an immunity which ... could not

validly be based on the nicety of decisions which had to be taken by advocates'

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


performing their duties to the court.'

*242 The Bar immunity was regarded by Lord Diplock as being part of this more

general immunity; by others, [FN23] however, it is seen as being a separate animal from

the witnesses' immunity which is relevant only by analogy. Witnesses are required to

give evidence as part of the machinery of justice; they must therefore be protected or

they would be afraid to give testimony. The immunity exists for the benefit of the

public at large in order that witnesses in general will not be constrained from giving

the evidence in court proceedings rather than for the benefit of the individual witness

concerned. Lord Diplock clearly considered that the benefit of the immunity from

liability should extend to the barrister. However, it would seem that the immunity is

not there to protect counsel, although that is an incidental effect, but rather to

enable the judicial process to operate.

THE NEED TO MAINTAIN THE INTEGRITY OF PUBLIC JUSTICE

In Saif Ali it was observed [FN24] that an action for negligence brought by a client

against a barrister for the way in which he has conducted a case in court is based on

the supposition that his lack of skill and care has led to the court reaching a

decision which was not only adverse to the client but wrongly so. Therefore it must be

proved that had the case been conducted competently by counsel the client would have

succeeded.

This means that the court hearing the client's claim must question the decision of

the court in the first action. If it decides in the client's favour it will reach the

decision in its judgment that the court in the first action was wrong. Under the

English system of justice the appropriate way of correcting a wrong decision of a court

of law is to appeal against the judgment to a superior court, not to require a court of

co-ordinate jurisdiction to impugn it.

This brings into operation a much wider principle of public policy which has

recently been upheld by the Court of Appeal [FN25] by which it is an abuse of process

to commence proceedings for the purpose of "mounting a collateral attack on a final

decision against the intending plaintiff which has been made by another court of

competent jurisdiction in which the intending plaintiff had a full opportunity of

contesting the decision in the court by which it was made'. [FN26] The existence of two

final but inconsistent decisions of courts of competent jurisdiction was described by

Sir Thomas Bingham in Smith v Linskills as "an affront to any coherent system of

justice'.

In the absence of this rule of public policy the trial of the second action would

need to be a retrial of the first action if the client were going to be able to prove

his case. However, it would not be possible to call the judge (or jury) to give

evidence of how, if at all, his view would have been altered had the first action been

competently conducted. The questions asked in examination and cross-examination would

be different as between the first and second trials and the circumstances of the first

trial could not be reproduced. Accordingly, it would be impossible authentically to

recreate the earlier trial.

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


This ground of public policy is buttressed by the importance of finality in litigation.

That aim would not be achieved if a client could relitigate the issue (against his

opposite party in the first action) against his counsel in the second action. If, in

the second action, the client felt his counsel had acted negligently, there would be no

reason, in principle, not to commence a third set of proceedings.

It has been suggested [FN27] that there is no need for this public policy ground

because "the natural inference would be that the court made a correct decision in the

first case given the information put before it and a separate court has made a second

correct decision when it allows recovery against the barrister given the information

that it has before it'. This somewhat facile view treats the court's decision as a

decision only of the factual material before it so that it is a species of conditional

decision, the condition being that no further or better information comes before it.

The basis for the barrister's immunity founded on the need to avoid relitigation is

a formidable one which ought to survive any attack on the immunity in the future.

[FN28] It allies the immunity with a fundamental principle relating to the

administration of justice and the potential abuse of process. It relates also to civil

and criminal jurisdictions equally. It is interesting to note that even the most

vigorous opponents of the immunity quail at the prospect of relitigation of issues in

criminal trials. [FN29] However, it would be peculiar if the immunity were to survive

for criminal advocates and not for advocates in civil courts.

Of course, as Lord Diplock observed in Saif Ali:

A similar objection 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 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'. [FN30]

On this subject Lord Wilberforce observed that "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' [FN31] and stated that that was a reason why the area of

immunity should be cautiously defined.

If the relitigation ground of public policy is the most cogent basis for the

immunity of barristers, then it would seem to follow that where a case is not litigated

and there is no final decision of a court against the client, there is no call for the

immunity in respect of "out-of-court' work even if it *243 might qualify under the Rees

v Sinclair test. As is discussed below this test is not without its difficulties of

application.

THE CAB-RANK PRINCIPLE

Last, and probably least important, there is the "cab-rank' rule. A barrister is

obliged to accept all work from all comers, no matter how undesirable they might be,

[FN32] and if he lives under the fear of being sued, that principle will be eroded. It

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(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


is legitimate to wonder why barristers should be afforded an immunity on this ground

when doctors are not. "Cab-rank' has been used by the Bar as a reason for preserving

the status quo from change in a number of different areas. In respect of the immunity

it certainly failed to convince the majority of the House of Lords in Saif Ali that it

was a sufficient basis for the existence of the immunity. It did however find favour

with some of the members of the House of Lords in the two cases. [FN33]

As a final thought on this aspect, now that the statutory cap on auditors' liability

and other means excluding or limiting professional liability are seriously being

considered, perhaps the bar immunity may not be so out of step with trends in

contemporary professional life.

APPLICATION IN PRACTICE

As the law stands, "out-of-court' work which satisfies the Rees v Sinclair test is

work in respect of which a barrister is immune from liability in negligence. In Saif

Ali the three Law Lords in the majority had no difficulty in concluding that the work

in question in that case - advising as to who should be a party and settling pleadings

in accordance with that advice - fell outside the extension to the immunity in Rees v

Sinclair. Lord Diplock felt that it did so "manifestly'; Lord Salmon felt that there

was no connection between the advice and the conduct of a case in court because it was

"not even remotely connected with counsel's duty to the court nor with public policy';

Lord Wilberforce considered that the work fell well outside the "immunity area'. [FN34]

The Rees v Sinclair test does not wholly solve the problem of determining what is in

and what is outside the immunity area. While Lords Wilberforce, Diplock and Salmon felt

quite certain, it is worth noting that in the Court of Appeal Bridge LJ [FN35]

considered that the negligence alleged in Saif Ali fell within the immunity area. Lord

Salmon thought that the judge responsible for formulating the Rees v Sinclair test

would have been "astonished' at such a view.

The position is not made much clearer when one considers the detail of Lord Salmon's

opinion in Saif Ali where he deals with this issue. Speaking of his judgment in the

Court of Appeal in Rondel he said, "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 advising on evidence. I should have said that the immunity might

sometimes extend to drafting pleadings and advising on evidence.'

In a sense any pleading is a statement of a party's case in the form in which it is

to be presented in court. Since all litigation has as its object the presentation of a

case in court (failing earlier settlement), it seems quite reasonable to argue that a

decision as to how to plead a case is a decision "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 the cause is to be conducted when it comes to a hearing'. However, it

is clear that such an argument would not succeed.

Lord Diplock declined in Saif Ali to draw up a catalogue of out-of-court work which

would fall within the limited extension to the immunity on the grounds that it would

not be wise to do so. The difficulty for the practitioner is that the flexibility of

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


the test enables the answer to the question whether a piece of work is or is not within

the immunity to depend to a very great extent on the particular judge hearing the case.

Further, the test appears to make no distinction between those cases which proceed

through a trial to judgment and those cases which for whatever reason do not, or are

dismissed without any decision on the merits. It is, on the present state of the law,

perfectly possible for an actionably negligent piece of out-of-court work to fall

within the immunity in circumstances where there was no trial and so no public policy

purpose served by the immunity. Although the distinction between those cases which

result in trials and those which do not was observed by Lord Diplock in Saif Ali it was

not specifically addressed.

THE COURTS AND LEGAL SERVICES ACT 1990

The CLSA does not address the scope or reasons for the immunity but makes it

explicit that it applies not only to barristers but to those lawfully providing any

legal services in relation to any proceedings.

INTERNATIONAL ELEMENT

In New Zealand there is a right of immunity. In the case of Rees v Sinclair, [FN36]

the New Zealand Court of Appeal upheld the immunity and defined, at least in principle,

its limits. McCarthy P's dictum as to the extent of the immunity in relation to

pre-trial work has been very influential. The position on the immunity in New Zealand

is the same as in the United Kingdom. This is so, notwithstanding the fact that the New

Zealand legal profession can be viewed as being "fused' and a practitioner may practise

both as a barrister and solicitor (although there are distinct roles for barristers and

solicitors and the necessary qualifications for the two professions are stated

separately and are somewhat different).

Australia has followed the lead of New Zealand and the United Kingdom with the

decision in Giannarelli [FN37] on appeal from the Supreme Court of Victoria. Rondel v

Worsley, Rees v Sinclair and Saif v Ali were relied on, but in addition the *244 court

had recourse to a statutory provision in the form of the Victorian Legal Profession

Practice Act 1958. It is interesting that the decision was in the context of an

amalgamated profession where there is no bar on a barrister suing for his fees.

In Ireland the question whether a barrister should be liable in negligence has never

been fully explored. It appears that the UK position affords persuasive authority for

the courts in Ireland if the issue should arise. In 1971, the matter was the subject of

a report by the Committee on Court Practice and Procedure under the chairmanship of

Walsh J which broadly, at least for all practical purposes, came to the same conclusion

as in the United Kingdom.

Canada provides the most interesting departure. There used to be an immunity but it

was rejected in 1979 by the Ontario High Court in Demarco v Ungaro. [FN38] In that

case, Krever J undertook a full examination of the arguments advanced in Rondel and

Saif Ali but held that "It has not been, and is not now, and should not be, public

policy in Ontario to confer exclusively on lawyers engaged in court work an immunity

possessed by no other professional person. Public policy and public interest do not

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


exist in a vacuum. They must be examined against the background of a host of

sociological facts of the society concerned'. [FN39] He then proceeded to take note of

such sociological facts.

In the United States it appears that the courts have never seriously contemplated a

bar immunity, even for court work. It is understood that negligence actions against

lawyers in relation to their conduct of litigation take the form of a "case within the

case'. The experience of American lawyers is that actions against trial lawyers for

negligence in their conduct of litigation are very difficult to prove.

Apart from Ireland, the bar immunity does not exist in other countries in Europe.

[FN40] It has been suggested that with the harmonisation of laws of Member States of

the European Community, there is no place for the immunity, even in the United Kingdom.

CONCLUSION

If and when the immunity is again considered by the House of Lords, there remains a

strong public policy ground in favour of its retention, namely, the requirement to

protect the administration of justice from the consequences of relitigation of issues

which have been finally determined in another court. However critically or sceptically

the immunity is examined, it is considered that this public policy ground affords a

legitimate basis for it. Accordingly, despite the fact that the immunity has been

viewed as a retrograde eccentricity in English law [FN41] it has a sound basis and

should cover the conduct of litigation in court by all who are entitled to act as

advocates.

FN1. And any person lawfully providing legal services in relation to any proceedings -

section 62 Courts and Legal Services Act 1990.

FN2. Fell v Brown (1791) Peake 131.

FN3. Re Le Brasseur and Oakley [1896] 2 Ch. 487, 494 per Lindley LJ.

FN4. [1964] AC 465.

FN5. [1969] 1 AC 191 - per Lords Reid (232C), Morris (246 to 247) and Upjohn (281).

FN6. Swinfen v Lord Chelmsford (1860) 5 HN 890, 920, 921.

FN7. See submissions of Louis Blom-Cooper in Rondel v Worsley who approached the

question on a more sociological framework and from a more radical standpoint. Also see

Lord Diplock in Rondel v Worsley, Note 5 above, at 223 F and G.

FN8. Note 5 above.

FN9. [1980] AC 198.

FN10. This was a practice, before the introduction of legal aid, whereby a criminal

could ask any barrister robed in court to represent him for nominal fee, without the

need for a solicitor intermediary.

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


FN11. [1980] AC 198 at 215B.

FN12. [1974] 1 NZLR 180.

FN13. Note 5 above, at 247.

FN14. Ibid., at 274.

FN15. An accountant may of course owe "public duties', for example to report fraud, but

such a duty is a long way in nature from the barrister's duty.

FN16. Giannarelli v Wraith (1988) 62 ALJR 611 at 613.

FN17. [1980] AC 198 at 233C-D.

FN18. Saif v Ali, Note 9 above, per Lord Diplock at 220G but see Lord Russell at 233C.

FN19. [1980] AC 219H.

FN20. [1980] AC 198 at 220C.

FN21. [1980] AC 222A and B.

FN22. 1979 42 MLR 319.

FN23. For example Lord Russell in Saif Ali, Note 9 above, at 233C.

FN24. Ibid., at 222D.

FN25. Smith v Linskills [1996] 1 WLR 763.

FN26. Hunter v Chief Constable of West Midlands [1982] AC 529 at 541 - a "Birmingham

bombers' case.

FN27. "The Immunity of Barristers from Suit in Negligence - The Australian Experience',

1989 Professional Negligence 124.

FN28. See John Powell QC, "Barrister's Immunity - Time to Go', Counsel, March/April

1995 and Rupert Jackson QC, "Disappointed Litigants and Doubtful Actions', Counsel,

May/June 1995.

FN29. See John Powell QC, Note 28 above.

FN30. [1980] AC 198 at 223D-F.

FN31. [1980] AC 198 at 214-215A.

FN32. So long as the case is in the barrister's area of practice and an acceptable fee

is agreed.

FN33. For example Lord Reid in Rondel, Note 5 above, at 227D to F, but see, for

example, Lord Keith in Saif Ali, Note 9 above, at 236B.

INTILR 1996, 4(8),

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


FN34. Note 9 above, at 224 F to G; 232F to G; 216B to C.

FN35. [1978] 1 QB 95 at 107C-D.

FN36. Note 12 above.

FN37. Note 16 above.

FN38. 95 DLR (ed) 385.

FN39. Ibid., at 405.

FN40. See Hayes and Poll, Lawyers' Immunity: The Wider English and European Framework',

Professional Negligence, December 1991, at 184.

FN41. A not unfair reading of Hayes and Poll, ibid.

END OF DOCUMENT

INTILR 1996, 4(8),

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Int. I.L.R. 1996, 4(8), 234-244

(Cite as: Int. I.L.R. 1996, 4(8), 234-244)


HeinOnline -- 9 Nottingham L.J. 74 2000

HeinOnline -- 64 Mod. L. Rev. 300 2001

HeinOnline -- 27 Cambridge L.J. 205 1969

Construction Law Journal

2005

Article

A COMPARISON OF THE LIABILITY OF ARBITRATORS, ADJUDICATORS, EXPERTS AND

ADVOCATES

Jane Ryland.

Copyright (c) 2005 Sweet & Maxwell Limited and Contributors

Cases: Arthur JS Hall & Co v Simons [2002] 1 A.C. 615 (HL)

Stanton v Callaghan [2000] Q.B. 75 (CA (Civ Div))

Legislation: Arbitration Act 1996 s.29

Housing Grants, Construction and Regeneration Act 1996

s.108(4)

Subject: ARBITRATION. Other related subjects: Construction law. Legal

profession. Negligence. Professions. Torts

Keywords: Adjudicators; Arbitrators; Barristers; Commercial arbitration;

Construction contracts; Experts; Immunities; Professional negligence;

Professional performance; Solicitors

Abstract: Examines the extent to which different degrees of liability apply to

arbitrators, adjudicators, experts and advocates involved in construction

disputes. Compares the liability of arbitrators or adjudicators under the

Arbitration Act 1996 s.29 and the Housing Grants, Construction and

Regeneration Act 1996 s.108(4), including the position in the event of

negligence, bad faith, injuries to third parties, or resignation before

completing their duties. Comments on the position of adjudicator nominating

bodies, case law on the liability of expert witnesses, barristers or

solicitor advocates, the influence of public policy and the role of

professional bodies in ensuring competence.

*11 Introduction

Many construction professionals in the twenty-first century hold dual or

multiqualifications. It is not uncommon for someone who was simply an expert witness 10

years ago to now sit as an arbitrator and an adjudicator. Many barristers and

solicitors are also practising arbitrators and adjudicators. It is sometimes difficult,

particularly when the professional may be working in the different capacities over one

period of time, to remember which "hat" he or she is wearing and the rules, risks and

responsibilities of each role.

CONSTLJ 2005, 21(1),

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(Cite as: Const. L.J. 2005, 21(1), 11-18)


http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=2000440374

http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=UK-CASELOC&FindType=Y&SerialNum=1998264265

http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=121177&FindType=Y&SerialNum=0111051631

http://uk.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=121177&FindType=Y&SerialNum=0111088502

Arbitrators and adjudicators

Section 29 of the Arbitration Act 1996 provides arbitrators with statutory immunity

from prosecution for acts or omissions while carrying out their function. A

dissatisfied party cannot therefore allege failure on the part of the arbitrator and

bring proceedings against him (or her):

"(1) An arbitrator is not liable for anything done or omitted in the discharge

or purported discharge of his functions as arbitrator unless the act or omission

is shown to have been in bad faith.

(2) Subsection (1) applies to an employee or agent of an arbitrator as it

applies to the arbitrator himself".

The application of subsection (2) is generally thought to mean that any legal

adviser or expert appointed to assist the arbitrator is similarly immune.

Section 108(4) of the Housing Grants, Construction and Regeneration Act 1996 ("the

Construction Act") mirrors the Arbitration Act wording as follows:

"The contract shall also provide that the adjudicator is not liable for anything

done or omitted in the discharge or purported discharge of his functions as

adjudicator unless the act or omission is in bad faith, and that any employee or

agent of the adjudicator is similarly protected from liability".

*12 Under neither Act can the parties remove the protection enjoyed by the

arbitrator/adjudicator by agreement. The protection is mandatory.

Contractual immunity

The significant difference between the two forms of protection is contained in the

opening words of s.108(4): "The contract shall ... provide ... ". The Construction Act

does not confer direct statutory protection on the adjudicator. It is the precise

wording of the contract which provides the level of immunity. If the contract does not

comply with s.108(4) then the provisions of the statutory Scheme for Construction

Contracts will apply. Paragraph 26 of the Scheme repeats s.108(4) of the Construction

Act exactly.

Other sets of adjudication rules which might be referred to in the contract are

those such as the JCT, ICE and TeCSA rules.

Negligence

The JCT and ICE immunity provisions are similar to the Scheme. However, the TeCSA

and CIC rules go further. They say that the adjudicator is not liable for anything in

the discharge of his functions as adjudicator (whether in negligence or otherwise). If

the inclusion of the words "whether in negligence or otherwise" carries any weight then

this casts real doubt on the protection that the Scheme and rules such as the JCT or

ICE give to adjudicators.

The reason that TeCSA and the CIC have included the additional wording is that a

contractual exclusion of liability (as opposed to statutory immunity) is only effective

in excluding liability for negligence if the intention to exclude negligence is made

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Const. L.J. 2005, 21(1), 11-18

(Cite as: Const. L.J. 2005, 21(1), 11-18)


clear.

This is the legal position following Gillespie Bros & Co Ltd v Roy Bowles Transport

Ltd, [FN2] where the words "all claims or demands whatsoever" were held to constitute

an agreement in express terms that the trader indemnified the carrier against all

claims without exception, including a claim arising from the negligence of the carrier.

For an adjudicator to successfully defend a negligence claim he would have to show

that it was the intention of the parties when entering into their contract that his

liability for negligence should be excluded. An adjudicator could include in his own

terms and conditions a provision that the immunity includes claims for negligence. This

would, however, be dependent on the thorny issue of whether a separate contract exists

between the adjudicator and the parties. It is often the case that the contract

crystallises when the adjudicator accepts the nomination, and that his own terms and

conditions are too late to form part of the arrangement.

Nevertheless, except for a possible negligence action against an adjudicator, an

arbitrator and adjudicator currently enjoy immunity from suit.

This also means that a party cannot defend a claim brought by an

arbitrator/adjudicator for payment of his fees, on the basis that he allegedly did a

bad job. The fees themselves can only be challenged on grounds of the reasonableness of

the amount charged and time spent.

*13 Bad faith

The exception to both s.29 of the Arbitration Act and s.108 of the Construction Act

is where the arbitrator/adjudicator acted in "bad faith". In the context of the tort of

misfeasance in public office, or, as it is sometimes called, deliberate abuse of power,

the term "bad faith" has had a restricted meaning. Traditionally a moral element has

been an essential ingredient. Lack of good faith connotes either (1) malice in the

sense of personal spite or a desire to injure for improper reasons, or (2) knowing that

one does not actually have the power to make the decision in question. It remains to be

seen whether "bad faith" under the 1996 Arbitration Act and Construction Acts will be

interpreted more widely by the courts.

An allegation of bad faith is only to be made where there exists prima facie

evidence justifying the allegation. If there is no reasonable evidence or grounds to

support the allegation, the statement of claim making such an allegation will be struck

out as an abuse of process.

Third parties

It is possible that an adjudicator who makes a decision that a building is

structurally safe where the building subsequently collapses injuring a third party

might be liable in negligence to that person. The statutory Scheme does not make

provision for this situation. Some rules such as the ICE rules require the parties to

indemnify the adjudicator against claims from third parties. Others such as the CIC

rules state that no duty of care is owed to third parties, but there has yet to be a

court case to decide whether such a duty of care exists.

CONSTLJ 2005, 21(1),

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Const. L.J. 2005, 21(1), 11-18

(Cite as: Const. L.J. 2005, 21(1), 11-18)


Professional indemnity insurance

Given the uncertainties surrounding the potential liability of adjudicators, it is

important that sufficient PI insurance cover is maintained. Were there to be a

successful negligence claim against an adjudicator this would inevitably increase the

premiums for adjudicators and be another blow to the adjudication process. In contrast,

for arbitrators it is not essential that insurance is in place.

Resignation

The position if an arbitrator resigns without completing his duties is as follows;

s.29(3) of the Arbitration Act states that s.29(1) and (2) do not affect any liability

of an arbitrator by reason of his resigning, that is to say if the arbitrator resigns

he is no longer protected. However, under s.25 of the Act, unless the consequences have

been pre-agreed, an arbitrator may apply to the court to grant him relief from

liability incurred by reason of his resignation. Strangely, if an arbitrator is removed

by the court under s.24 of the Arbitration Act, he retains his immunity.

There is no similar wording in the Construction Act but an adjudicator, subject to

the applicable rules, may find himself unable to recover any fees or expenses if he has

failed to make a decision. The various adjudication rules do not deal expressly with

the issue of liability in the event of resignation and it appears therefore that

immunity is retained, except in instances of bad faith.

*14 Summary

The key difference between the protection given to arbitrators and adjudicators is

the greater immunity provided to arbitrators by reason of the statutory nature of their

role. Adjudicators are at greater risk from the tort of negligence.

Adjudicator nominating bodies ("ANBs") and arbitral institutions

Under s.74 of the Arbitration Act a person or institution designated to appoint or

nominate an arbitrator enjoys similar immunity. Again, this is subject to the exception

of bad faith.

The immunity only protects the institution from the consequences of anything done or

not done by the arbitrator simply because it has appointed or nominated him, but not in

other circumstances. So if the institution acts negligently in the discharge of its

other administrative functions, s.74 will not afford protection.

The majority of adjudication rules are silent on the potential liability of the

nominating body. Only the TeCSA rules expressly state that neither TeCSA, nor its

chairman or his deputy, shall be liable for anything done or not done in the discharge

or purported discharge of the functions of the adjudicator. Once again, this protection

is removed if the act or omission is in bad faith.

Public policy

The argument in favour of immunity for arbitrators and adjudicators is that, if they

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were exposed to claims from the parties, any award or decision might result in further

litigation, this time against the arbitrator, and the whole judicial process would be

undermined. Further, it is argued that the cost of PI insurance could be prohibitive.

However, as stated above, it is debatable whether PI insurance for arbitrators is even

required. It is also said that many arbitrators/adjudicators would simply be unwilling

to serve.

The same principle of public policy applies to judges, who cannot be called to

account even if they have a poorer than average record of their judgments being

overturned on appeal. The position was the same until recently for barristers, who were

immune from prosecution. However, their immunity from suit in respect of their advocacy

was removed in 2000 in the House of Lords decision in Hall v Simons, which is covered

later in this article.

Expert witnesses

It is important for professionals to remember that acting in the capacity of expert

is very different from sitting as arbitrator or adjudicator. It is still surprising

that many experts are not familiar with the requirements of the Civil Procedure Rules

and their Practice Directions, particularly if they have never appeared before a judge

or arbitrator to explain and justify their written report.

Perhaps this is because experts believe they enjoy considerable immunity. Evidence

given by the expert in court or arbitration, and work which is preliminary to the

giving of such evidence, are protected. This protection extends to the production of a

report or approval of a report which is disclosed. It also covers the contents of a

without prejudice agreed statement. [FN3]

*15 However, what is not covered is work done for the principal purpose of advising

the client on the merits of the claim, particularly before proceedings have commenced.

In essence there is a difference in the protection given to the expert in the

carrying out of his overriding duty to the court (CPR Pt 35) and in his role as adviser

to a party.

The principle of witness immunity dates back to Victorian times. As with judges,

arbitrators and adjudicators, the justification is that it is in the public interest.

However, with the payment of professional expert witnesses highlighted by the current

media interest in experts on "cot death", the right to protection from actions in

negligence is regularly questioned.

In Stanton v Callaghan, [FN4] Mr and Mrs Stanton wanted to bring a negligence claim

against the consulting engineer who had advised them in a subsidence claim against

their building insurers. Unfortunately for the Stantons, Mr Callaghan drastically

changed his advice following a meeting with the other side's expert, which resulted in

the Stantons reluctantly accepting an earlier payment into court with adverse costs

consequences to themselves. Mr Callaghan relied on his immunity as an expert witness,

but at first instance his application to have the claim against him struck out failed.

In the Court of Appeal, Chadwick L.J. traced the development of witness immunity

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from Dawkins v Lord Rokeby [FN5] and Watson v M'Ewan, [FN6] where immunity was based on

ensuring that witnesses were not deterred from coming forward, but thought that there

must be a difference "where the witness is a professional man who had agreed, for

reward, to give evidence in support of his opinion on matters within his own expertise

... ". He then considered the application of advocate immunity and compared the cases

of Rondel v Worsley [FN7] and Saif Ali v Sydney Mitchell and Co. [FN8] The first case

concerned a barrister's immunity in court and the immunity was upheld on three grounds:

(1) the administration of justice required that a barrister should be able to

carry out his duty to the court fearlessly and independently;

(2) actions for negligence would make re-trying of the original actions

inevitable and so prolong litigation, contrary to public interest; and

(3) the cab-rank rule by which a barrister is obliged to accept any client who

sought his services.

By contrast, in the later case of Saif Ali v Mitchell, [FN9] a barrister had settled

claim documents and advised on the issue in dispute. The House of Lords held by a bare

majority that the barrister would not be immune on the basis that only pre-trial works

so intimately connected with the conduct of the hearing of the case in court would be

immune.

Applying this reasoning. the Court of Appeal struck out the negligence claim against

Mr Callaghan. Chadwick L.J. held that any joint statement following a *16 meeting of

experts should be immune, the public policy reason being to avoid a tension between the

duty to assist the court and fear of the consequences of departing from previous

advice. Since it was in the public interest to encourage full and frank discussion

between experts, and that required a freedom to make proper concessions without fear

that any departure from previous advice to the retaining party would be considered

negligent, an immunity was justified.

He did not, however, go so far as to say that all reports prepared for use in

proceedings where the expert has not given evidence would attract immunity.

It has also to be borne in mind that in 1998 when Stanton v Callaghan was decided,

the principle of advocate immunity in civil actions was still firmly in place.

A major change in the law occurred in Hall v Simons, [FN10] when the House of Lords

disapproved Rondel v Worsley and upheld a decision that solicitors were not protected

by an advocate's immunity from suit, holding that advocate's immunity was no longer

justified in the light of changes in the law of negligence, the functioning of the

legal profession, the administration of justice, and public perception.

The House of Lords held that the public policy arguments in favour of exemption were

no longer appropriate for the following reasons:

First, there was evidence that the standard of advocacy had not declined since the

introduction of the wasted costs jurisdiction under the CPR. The courts were able to

judge between inevitable errors of judgment and true negligence; thus the floodgates

would not be opened to negligence claims.

Secondly, the court was accustomed to dealing with the problems of re-litigation and

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had an intrinsic power to strike out claims for abuse of process.

Thirdly, the "cab-rank" argument was unverifiable and insubstantial.

Thus the immunity of an advocate was removed.

Summary

It is difficult to see why a distinction should continue to be made between

barristers/solicitor advocates and experts, all of whom owe a duty to the court.

Nevertheless in a later case, Raiss v Paimano, [FN11] not only did the expert

perform badly in the witness box to his client's disadvantage but it turned out that

his claim to be on the Panel of Arbitrators for the RICS was false. Because, on the

facts, the negligence claim was about his performance in court the judge applied

Stanton v Callaghan and held that witness immunity extended to his false statement,

stating that there was nothing in their Lordships' opinions in Hall v Simons which

undermined the authority or the rationale of the principle of witness immunity.

The current position therefore is not whether experts have immunity but how far that

immunity extends, i.e. how integral to the court hearing was the work or advice in

question.

*17 The argument yet to be decided is whether it is in the public interest that

experts should continue to be free to give evidence in court without fear of

repercussions (other than by the media) for what they say.

The rôle of professional bodies

In the field of construction law during the last three or so years, there has been

considerable criticism of the abilities of several qualified adjudicators and this has

been met in general by the nominating bodies responsible for their training and panel

membership issuing feedback forms to the parties, requiring proof of continuing

professional development in the adjudication field, and taking disciplinary action

including the removal of the adjudicator from their panel where it is felt necessary.

Interestingly, in the court case of Pearce v Ove Arup Partnership Ltd, [FN12] the

expert architect was strongly criticised by the judge for failing in his duty to the

court. Jacob J. stated that the expert bore "a heavy responsibility for this case ever

coming to trial--with its attendant cost, expense and waste of time ... ". He went on

to say that although there were no rules providing specific sanctions for breach of Pt

35, nor any system of accreditation of experts, he could see no reason why a judge

could not refer a serious breach to that professional's governing body.

He went on to refer the expert's conduct to the RIBA (who exonerated him).

The training of judges has also improved as part of Woolf L.J.'s investigations into

the civil justice procedure. In principle therefore there is no reason why judges who

make mistakes cannot be sent for further training or in extreme situations be "demoted"

in the ranks of the judiciary.

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(Cite as: Const. L.J. 2005, 21(1), 11-18)


Certainly the Chartered Institute of Arbitrators runs regular workshops and conferences

for their arbitrators to improve their skills and keep up to date with developments in

the law.

Conclusion

There is certainly a change in public perception that professionals engaged for

reward, or who hold a position of public office, should be accountable for loss or

damage occasioned by their actions or omissions. The question arises as to whether

there would be a dearth of judges, arbitrators, adjudicators and experts if immunity

were removed. This does not seem to affect the professions of solicitors, medics and

construction professionals, such as surveyors, engineers and architects from pursuing

their careers.

Equally well, there is arguably a balance to be struck so as to enable judges,

arbitrators and adjudicators to carry out their judicial functions. If the current

position on experts' immunity for giving evidence in court but not for advice to their

clients is correct, then it is right that similar immunity should extend to arbitrators

and adjudicators.

If the balance is right, then an aggrieved party or client's complaint is balanced

by the public good. This is in the interests of public policy in so far as it prevents

expensive re-hearings.

*18 The problem with this is that our system protects those who make the law and

those carrying out their duty to the court, while at the same time offering no or

little sanction for serious breaches of professional conduct. The public would be

better served by a more transparent and consistent system of calling to account by the

relevant appointing and professional bodies.

FN Solicitor and Partner, Cripps Harries Hall, Tunbridge Wells.

FN2. [1973] 1 Q.B. 400.

FN3. See Stanton v Callaghan [1998] All E.R. (D) 327.

FN4. ibid.

FN5. (1873) L.R. 8 Q.B. 255.

FN6. [1905] A.C. 480.

FN7. [1969] 1 A.C. 191.

FN8. [1980] A.C. 198.

FN9. ibid.

FN10. (2000) 3 W.L.R. 543.

FN11. [2000] All E.R. (D) 1266.

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FN12. [2002] E.C.D.R. CN2.

END OF DOCUMENT

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14 of 33 DOCUMENTS

Copyright 2000 Centaur Communications Ltd.

The Lawyer

July 24, 2000 SECTION: Pg. 2 LENGTH: 1009 words HEADLINE: Bar fears flood of claims after loss of immunity BODY:

By Matheu Swallow

Despite the Bar Council's best efforts, barristers' immunity from being sued for negligence in court has been abolished.

The move could result in a 50 per cent increase in the cost of indemnity in-surance as well as changing the way barristers receive instructions.

A typical chambers with between 35 and 45 tenants now pays about GBP 60,000 per year, to provide GBP 2.5m a head of cover. But this premium is set to rise to well above the GBP 100,000 mark.

While it is a breach of the bar's code of conduct for a barrister not to have professional indemnity insurance, the minimum amount of cover required is only GBP 250,000, and in many chambers it is left to individual practitioners to insure themselves.

One eminent silk at a leading commercial set says: "Cover will cost more simply because of the perception of insurers that the risk of exposure is greater." However, he stresses that many barristers already have extensive immu-nity cover, which for some leading silks can run to tens of millions of pounds.

Michael Meeson, chambers director at 39 Essex Street, says: "All our barris-ters are insured. It will lead to us considering the levels of insurance which must, inevitably, go up and premiums will go up."

Justin Fenwick QC, chairman of the Bar Mutual Indemnity Fund, says: "It is obviously an important decision and we will be studying the implications with care."

However, he was unwilling at this stage to comment on the potential cost im-plications for barristers' professional indemnity insurance.

One of the bar's main fears is that the floodgates will open and leave it exposed to a massive increase in the number of claims against barristers.

One leading silk says: "There may well be a move to barristers using con-tracts more, seeking to exclude or limit liability.

"It is all part of us having to recognise that we are service providers and that we have a duty of care, not just as individuals but corporately as a cham-bers."

Another eminent silk at a leading commercial set thinks that there could even be negligence actions taken against decisions already made. He says: "My gut reaction is that it could be retrospective up to six years."

He adds: "There is a risk that clients who insist on running bad cases may not be able to see, despite being advised, that that is indeed the position, and then pursue the barrister when the action fails."

Bar fears flood of claims after loss of immunity The Lawyer July 24, 200

However, the House of Lords emphasised that while many negligence actions might be started, few would be allowed to continue.

In his judgment, Lord Steyn says: "It will not be easy to establish negli-gence against a barrister."

He adds: "There would be benefits to be gained from the ending of immunity. First, and most importantly, it will bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong.

"There is no reason to fear a flood of negligence suits against barristers. The mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent."

If there is a flood of actions the bar will ultimately profit, with leading professional negligence sets, especially those that specialise in solicitors' negligence, best placed to take advantage of a new market.

Patrick Gaul, lead partner for Weightmans, the firm instructed by the So-licitors Indemnity Fund (SIF), says: "It will, I think, make barristers think more about accepting late or poorly prepared instructions. They will be more fastidious over instructions that they don't think are particularly good."

This, he says, could lead to an increased administrative burden on barris-ters, who may be forced to keep better records about when instructions are re-ceived late or not prepared properly.

He adds: "As Sumption (Jonathan Sumption QC for the SIF) said in the House of Lords, it may lead to some defensive lawyering in the same way as we already see defensive medicine."

A leading silk agrees that records must be improved and that the cost of this extra administrative burden will ultimately be passed to the client.

In his judgment, Lord Hoffmann agreed that Sumption's argument must be taken seriously.

Despite the greater risk of negligence actions against them, most barristers ultimately believe that the decision was both inevitable and correct.

Lord Hoffmann in his conclusion says: "I have now considered all the argu-ment relied upon in Rondel v Worsley. In the conditions of today, they no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity. The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way."

THE LAW LORDS' RULING

Arthur J S Hall & Co (a firm) v Melvyn Keith Simons; Barratt v Woolf Seddon (a firm); Harris v Scholfield Roberts & Hill (a firm)

Court: House of Lords

Judges: Lords Browne-Wilkinson, Steyn, Hoffmann, Hope, Hutton, Hobhouse and Millett

Held: (1) Given the changes in society and in the law that have taken place since the decision in Rondel it is appropriate to review the public policy deci-sion that advocates enjoyed immunity from liability for the negligent conduct of a case in court. The propriety of maintaining such immunity depended upon the balance between, on the one hand, the normal right of an individual to be com-pensated for a legal wrong done to him and, on the other, the advantages which accrued to the public interest from such immunity. In relation to claims for im-munity for an advocate in civil proceedings, such balance no longer showed suf-ficient public benefit as to justify the maintenance of the immunity of the ad-vocate. (2) (Lords Hope, Hutton and Hobhouse dissenting) The immunity should be abolished in relation to all proceedings, and not merely in relation to the con-duct of civil proceedings.

Bar fears flood of claims after loss of immunity The Lawyer July 24, 200

Appeals dismissed.

Source: Lawtel LOAD-DATE: September 1, 2000

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22 of 89 DOCUMENTS


The Lawyer

September 3, 2001 SECTION: Pg. 29 LENGTH: 958 words HEADLINE: In the firing line BODY:

The decision in Hall Simons was heralded as a defining moment in the history of the bar. A barrister's immunity from being sued for negligence in court was abolished, which led to claims that the floodgates would open, that the cost of indemnity cover would rocket and that barristers would be forced to change the way they practise.

Certainly, advocates are now much more in the firing line. Richard de Lacy QC of 3 Verulam Buildings, for example, was roped into a multi- million pound negligence claim against Rowe & Maw as a direct consequence of the ruling (see case study). It was only as a result of the Lords decision in the conjoined ap-peal of three cases - Hall Simons, Barratt Woolf Seddon, and Harris Schofield Roberts & Hill - that Abbey Life widened its claim to include de Lacy's conduct in court, specifically the nature of his cross-examination.

Then, last week, The Lawyer was contacted by a chartered accountant claiming to have instructed counsel to bring a negligence claim against a barrister whose conduct in court, he alleges, resulted in him losing his case and ruining his career.

However, these do appear to be the exception rather than the rule. Only a handful of cases involving alleged barristers' negligence have reached court, and in only two of those was the barrister found liable.

Speaking on the de Lacy case, one source says: "I am not aware of any claim that has more money at stake since Hall Simons in which an advocate's conduct at trial has been criticised."

Andrew Hughes, a managing associate in the professional negligence team at Linklaters & Alliance, confirms there are cases of alleged advocates' negligence working their way through to the courts. However, he does not anticipate a large number of claims because of the significant hurdles a claimant still faces on liability and causation.

"Although Hall Simons recognised the conduct of litigation is not the only professional activity requiring delicate judgments under pressure, it remains the case that a claimant will need a strong case to be confident of establishing that an error of judgment in the courtroom amounted to negligent advocacy and that such advocacy caused an unfavourable outcome at trial," he says.

Christopher Symons QC, head of 3 Verulam Buildings, points to the pressures barristers are uniquely placed under, thus rendering it hard to secure a prose-cution against them. "He is making a decision on the spur of the moment and it's a question of balance whether he should call a witness, or approach a case one way rather than another."

The other factor acting against applicants is that they have to show that the barrister would have achieved a different result but for the advocate's neg-ligence. Therefore, this would involve consulting judges. However, judges cannot be compelled to give evidence and are unlikely to do so.

In the firing line The Lawyer September 3, 2001

In addition, in criminal cases clients will have to successfully appeal their conviction prior to suing their counsel, and then have to show they would not have been sentenced but for the conduct of the advocate. There is also the Civil Procedure Rule that a court can give summary judgment in favour of the de-fendant if it believes the applicant has no chance of success.

Barristers argue that cases against them for allegedly negligent advice, as opposed to their conduct in court, are also few and far between. This also ap-plies to cases against solicitor-advocates, who are subject to the Law Society's Code for Advocacy. This states that they must take proper steps to "keep proper records" - that is with material intimately tied to a court case for which they can be sued as a result of Hall Simons.

Some barristers have claimed that the case will change little because they didn't face many large claims anyway. However, the recent case involving Judge Peter Clark, now a judge on the Midlands circuit and chairman of the Employment Appeal Tribunal, clearly illustrates that the potential for a massive claim is there. As The Lawyer recently reported (13 August), Clark, then a barrister at Devereux Chambers, was found guilty by the Court of Appeal of professional neg-ligence for advice he gave to a road traffic accident victim. As a result Clark, the deputy chairman of the Competition Commission Denise Kingsmill and DJ Free-man are being sued for GBP 1.7m by the claimant. The Lords are considering their application for leave to appeal to them.

The Bar Mutual Management Company is monitoring the claims position as a re-sult of the Lords ruling, but considers it early days to tell whether the pre-mium will be affected. Last week, a spokesman for the fund said it was in no hurry to increase premiums.

The top premiums already run to GBP 5m of cover, but Bar Mutual does report that some barristers have been getting top-ups. Also, some barristers are get-ting jittery over the decision in Brocklesby applied in Liverpool Roman Catholic Archdiocesan Trust Goldberg (David Goldberg QC of Gray's Inn Tax Chambers), in which the six-year cut-off point in tort cases does not apply if material was deliberately concealed, so it could not feasibly come to the attention of the barrister for some time.

Ben Pilling, a barrister at 4 Pump Court, says: "Barristers would be foolish if they did not retain material going back to the beginning of their practice, and also retain their insurance until they die."

Barristers have clearly not faced the flood of claims many anticipated. They continue to enjoy strong protection from actions, because the threshold for es-tablishing negligence continues to be very high.

But these are early days, and the examples of de Lacy and Clark illustrate that the landscape is still shifting. LOAD-DATE: September 5, 2001

11 of 89 DOCUMENTS


The Lawyer

September 13, 2004 SECTION: Pg. 25 LENGTH: 1134 words HEADLINE: Insurance/Reinsurance: Blasts from the past BODY:

With the removal of barristers' immunity from negligence actions, a raft of claims was predicted. But as John Bennett reports, this has not transpired

When the House of Lords in Arthur JS Hall v Simons (2000) abolished a bar-rister's automatic immunity from law suits for negligent work carried out in court, there were fears that the floodgates would open and that disgruntled un-successful litigants, or defendants in criminal cases, would bring claims against their former barristers and that insurance premiums would rise accord-ingly.

The Lawyer (3 September 2001) reported that "advocates are now much more in the firing line". While it is true that claims can now be made against barris-ters which were unlikely to have got off the ground before Hall v Simons, this is not necessarily the case in reality. According to the bar's insurers, Bar Mu-tual Indemnity Fund Limited (BMIF), the number of claims notified is stable, and although premiums have risen for barristers carrying out some categories of work, they have fallen in other areas by way of compensation. BMIF has noticed a slight rise in the number of claims made in respect of alleged under- settlement of personal injury claims, but this is far from a "trend".

There have been some claims brought where a claimant criticises a barris-ter's conduct in court, but a large proportion of those claimants have been litigants-in-person. There have been some serious claims, of course, one such being Chetan Popat v Barnes (2004). The claimant was convicted of various of-fences in July 1997 and his appeal was dismissed in March 1998; on both occa-sions he was represented by the defendant barrister. The case went back to the Court of Appeal in July 1999 through the Criminal Cases Review Commission, and a retrial was ordered at which the claimant's conviction was quashed; the defen-dant did not represent the claimant at the second Court of Appeal hearing or at the retrial. At the first trial, a Notice of Alibi had been served on behalf of the claimant and the claimant's parents had given evidence that the claimant had been with them when the alleged offences were committed. The first trial judge did not give an alibi direction to the jury in his summing up. The only allega-tion raised by the claimant against the defendant in the professional negligence action was that her "failure" to draw this omission to the attention of the trial judge and to the first Court of Appeal had lost the claimant the chance of obtaining a not guilty verdict at the first trial, or of having the verdict overturned at the first appeal. The judge hearing the professional negligence action, Mr Justice Buckley, accepted evidence from the defendant that she had discussed the issue with counsel for the prosecution at the first trial and that she honestly believed that to recall the jury for them to be given an alibi di-rection by the first trial judge would be against the claimant's best interests and that the claimant had agreed with this approach at the time. The defendant did not believe it was appropriate to raise the point as a ground of appeal at the first appeal in light of the claimant's consent. Barristers have to take many tactical decisions and Judge Buckley was able to come to the view that the decisions by the defendant not to draw the lack of an alibi direction to the

Insurance/Reinsurance: Blasts from the past The Lawyer September 13, 200

trial judge's attention, nor to use the lack of such a direction as a ground of appeal, were not decisions that no reasonably competent member of the bar would have taken.

That a barrister cannot be held to have acted negligently unless they have made an error "such as no reasonably well-informed and competent" barrister would have made (the words used in Saif Ali v Sydney Mitchell & Co (1980) by Lord Salmon) appear time and again in the law reports. Not only was the defen-dant barrister in Popat making a tactical decision which any other reasonably competent barrister could have taken, but the barristers in Bark v Hawley & Rod-gers (2004) and Luke and Anor v Wansbroughs and Anor (2003) were advising in a way in which other barristers could have advised.

The Bark case in particular is interesting. The claimant had cerebral palsy from birth in 1969 and had consulted solicitors in 1996 in respect of a possible claim against her GP arising out of these events. Legal aid was obtained. The solicitors had instructed the barrister in 1999 and 2000, but the barrister's advice on the second occasion was that an application under Section 33 of the Limitation Act 1980 would almost inevitably fail. No proceedings were commenced against the GP. However, the claimant then commenced proceedings against the so-licitors, alleging that they had negligently failed to commence proceedings against the GP. Naturally, the solicitor's firm defended the claim, alleging that the potential claim against the GP would not have got off the ground as it was stale by the time it was instructed in 1996, but it also commenced Part 20 proceedings against the barrister on the basis that if it was liable to the claimant, then so too was the barrister for advising in 2000 that a claim against the GP brought out of time, but under Section 33 of the Limitation Act, would inevitably fail. On the face of it, this was a risky tactic by the solici-tors' firm, as it exposed it to a large claim for costs if it defeated the claimant's claim. In any event, the barrister applied for summary judgment in the Part 20 claim, or in the alternative for it to be struck out. Mr Justice Hughes struck out the Part 20 claim. His view was that the barrister's advice was one that could have been given by a reasonably competent member of the bar and, moreover, was in fact correct. The judge commented that the solicitors had not believed that the barrister's advice was wrong when the firm had received it and nor had it sought a second opinion. Although not as persuasive as the fact that in Popat the barrister had obtained the lay client's consent to her pro-posed course of action, the firm's lack of concern over the barrister's advice in Bark cannot have helped its case.

Therefore, if a barrister considers the relevant authorities or makes an in-formed tactical decision, a finding of negligence in respect of the barrister's advice is unlikely if that advice was one which a reasonably competent member of the bar could have given. Previously, barristers have seldom retained notebooks or papers or made notes of why they gave a particular piece of advice, but this too is changing, making it easier to provide evidence to support the barrister's defence.

If the courts continue to adopt the same robust approach as the judges in Popat and Bark, then a flood of cases against the bar would appear unlikely. John Bennett is a partner at Weightmans LOAD-DATE: September 16, 2004

9 of 89 DOCUMENTS

Copyright 2004 Legal Week

Legal Week

November 18, 2004

LENGTH: 1098 words HEADLINE: Legal Developments: Worth the risk? BYLINE: Peter Causton; [email protected] BODY: The Professional Standards Committee of the Bar Council has this month issued guidance to all barristers regarding their professional indemnity cover. It ad-vises that it is rarely appropriate for a barrister to seek to limit their li-ability for professional negligence claims and that this could amount to profes-sional misconduct. However, it states that it is seeking approval for amendments to its code of conduct to allow barristers to refuse work if the potential li-ability for professional negligence could exceed the levels of professional in-demnity cover. Otherwise, to refuse work in these circumstances would offend against the cab rank rule. Interestingly, the Bar Council also warns that the Bar Mutual Indemnity Fund's (BMIF's) minimum cover should not be assumed to be sufficient and that it is in discussions as to whether the minimum cover should be increased.

This is interesting, because the Bar Council clearly considers that there is an increased risk of claims and that barristers may not be adequately covered by the BMIF. Following the decision in Arthur JS Hall v Simons 2000 , which abol-ished a barrister's automatic immunity from negligence claims arising out of court work, the floodgates could have been opened for claims but, so far, this has not materialised. However, following the Bar Council's recent introduction of new rules permitting direct access to barristers from the general public for limited types of work, bypassing the solicitor, the position may change.

It is likely that the abolishing of immunity and the taking on of direct ac-cess work are two developments that will have an impact on barristers' insurance arrangements. Unlike solicitors, barristers still maintain a mutual fund. They are only obliged to take out a minimum of £ 250,000 worth of cover from the BMIF (although the maximum available is £ 5m and the BMIF looks at each individual's practice area to ascertain what level of cover within this band is appropriate), but as a minimum figure, this is likely to be inappropriate going forward given the changes to barristers' practice.

The Bar Council granted approval to further relax the restrictions on access to the Bar, effective from 6 July, prompted by the Office of Fair Trading re-view.

As the guidance issued by the Bar Council recognises, the absence of the so-licitor represents a major change in the way in which barristers practise and the relationship between the lay client and the barrister. The no doubt well-intentioned aim of this change was to remove unnecessary barriers as to the pro-vision of services and to save costs by cutting out superfluous intermediaries. The Bar Council has chosen to retain its traditional and less burdensome regula-tion and is following a model whereby the lay client will have direct access to conventional barrister services, rather than full litigation services.

In formulating its rules, the Bar Council has attempted to distinguish be-tween these two functions, because not to have done so would have removed the distinction between the two branches of the profession and also increased over-heads for barristers. They are still not permitted to conduct litigation, but to all intents and purposes can do so in all but name, carrying out tasks such as

Legal Developments: Worth the risk? Legal Week November 18, 2004

drafting of all documents and correspondence for the lay client or solicitor to send to the opponent and the court. They are not allowed to issue the proceed-ings or to handle client money. Although they are permitted to take witness statements, they are not permitted to ""investigate or collect evidence for use in any court"".

The objective is to avoid barristers having to operate like solicitors' firms, having to pay for administrative functions such as office accounts and a secretary. However, they will still have to comply with money laundering regula-tions, where appropriate, and to send out client care letters. The rules also provide that the relationship will be a contractual one, opening up for the first time the possibility that a barrister could be in breach of contract, and also enabling them to sue for their fees.

In order to safeguard the public, the Bar Council has imposed a rule whereby only those who have at least three years' experience will be able to undertake direct access work and comply with training requirements - at present a one-day course. It is questionable whether a one-day training course will be sufficient to prepare barristers for the rigours of direct access to the public, given that they generally have no experience of drafting letters and dealing with client care issues.

The cab rank rule will not apply to direct access and a barrister must re-fuse instructions if they consider that it is in the interests of the client, or justice, for the client to instruct a solicitor. Barristers have to exercise their discretion in order to take on direct access work and whether to withdraw from a case, which is likely to lead to confusion and uncertainty among barris-ters and lay clients as to whether they can act, at least while the rules bed down.

Overall, the Bar Council has attempted to permit greater freedom to barris-ters to accept direct instructions from the lay client, while trying to restrict this to the barrister's traditional role. Inevitably, without an intermediary to act as a buffer, the consequence is bound to be that barristers will face more, or certainly differently formulated claims.

Previously, when a client has made a claim in respect of failed or mishan-dled litigation, there have usually been two targets, with the most convenient being the open market insurer-backed solicitor. If a barrister accepts direct instructions from a lay client, they will be standing directly in the firing line. In order to protect their position, the barrister will have to tread a careful path through the minefield of the Bar Council's regulations and will also have to keep records of meetings and advice given and send out client care correspondence to clients which they may not be accustomed to doing.

As is apparent from the recent guidance issued by the Bar Council, premiums will now increase, particularly for those barristers undertaking direct access work, and it will be more expensive for the clients (thus undermining one of the purposes of the reforms). The question remains whether direct access will take off, or whether it is really worth the risk for most barristers.

Peter Causton is a solicitor in the business and professional risks team at Browne Jacobson.

" LOAD-DATE: November 18, 2004

5 of 89 DOCUMENTS

Copyright 2005 Legal Week

Legal Week

April 14, 2005

LENGTH: 1563 words HEADLINE: Professional Negligence: The millionaires' club BYLINE: Mark Hick & Samantha Holland; [email protected] BODY:

On 1 September, 2000, the provision of the £ 1m minimum level of compulsory professional indemnity (PI) insurance under the Solicitors' Indemnity Insurance Rules switched from the Solicitors' Indemnity Fund (SIF) to the commercial in-surance market. For many solicitors, PI insurance premium payments constitute their largest annual outlay, after rent and salaries. The aim of the move to the commercial market was improved competition, leading to greater choice and re-duced premiums for solicitors' firms. Five years on, has this aim been achieved in practice?

Reduction in premiums?

During the last year of SIF, total premiums collected for the compulsory £ 1m cover amounted to £ 258m. To some extent, this reflected a loading of premi-ums by some £ 10m to £ 15m. Partially this was a result of the uncertainty sur-rounding Y2K, and partially, it was because of the inevitable laundry listing' which followed the Law Society recommendation that all firms notify all existing claims to SIF prior to the move to the open market.

Following the move to the open market, figures suggest the total value of premiums collected by those qualifying insurers who were providing cover under the minimum terms and conditions laid down by the Law Society fell dramatically to £ 160m. In reality, there was inevitably some jostling for market share by many of the large qualifying insurers, who were prepared to offer competitive terms, particularly to those firms with good claims records.

Since then, the cumulative value of premiums has risen gradually to £ 242m in 2004 (for 12 months' cover). This was prompted by unexpected eventualities such as 9/11, together with soaring reinsurance rates. While the total level of premiums is now equivalent to those taken by SIF in 1999, Trevor Moss at Willis believes there has been a softening in what is now a mature market. Among bro-kers, the general view appears to be that, going forward, there should be a gradual reduction in the level of premiums.

Aggregation of claims and minimum level of cover

However, it is not clear how the recent change in treatment of the aggrega-tion of claims, and the resulting rise in the minimum level of cover with effect from 1 October, 2005, will impact on the softening insurance market.

Clause 2.5 of the minimum terms, which specify the cover to be provided by qualifying insurers, provides that: "All claims against any one or more insured arising from the same act or omission or from one series of related acts or omissions will be regarded as one claim."

Qualifying insurers had assumed this wording would entitle them to treat multiple claims arising not only from a series of related acts, but also from a series of similar acts, as one claim for the purpose of the limits of indemnity. However, the House of Lords' decision in the case of Lloyds TSB General Insur-

Professional Negligence: The millionaires' club Legal Week April 14

ance Holdings Ltd and others v Lloyds Bank Group Insurance Co Ltd 2003 now means the qualifying insurers' assumption was wrong.

Undoubtedly, pressure has been placed on the Law Society by qualifying in-surers in light of widely anticipated claims relating to The Accident Group. A change of wording which essentially increases the scope of the aggregation clause has been agreed. It puts those insurers in the position they thought they had been in prior to the Lloyds TSB decision. The provision of one limit of in-demnity per transaction represents a substantial dilution of what has hitherto been one limit of indemnity for each and every claim.

To some extent, the latest change of wording could be symbolic of pressure being put on the Law Society by qualifying insurers in connection with the mini-mum terms - in reality, the broadest PI wording on the market compared to other professionals. In essence, qualifying insurers do not have available to them the array of standard tools, including material non-disclosure, to challenge policy coverage. It will be interesting to see if this change in the wording of the minimum terms leads to further changes slightly in favour of those qualifying insurers in coming years.

Certainly, the Law Society has increased the compulsory level of cover from £ 1m to £ 2m for any one claim (£ 2m to £ 3m for limited liability partnerships) with effect from 1 October, 2005, ostensibly as a result of the change to the aggregation provisions. It is estimated that some 5,000-5,500 smaller firms usu-ally take out the minimum level of cover every year and will be affected by this change.

This suggests that further cover of some £ 5bn will be required from the market. While the capacity appears to be available, it is uncertain how insurers will underwrite this additional cover. Some will inevitably wish to properly un-derwrite and rate the additional £ 1m.

However, there is a general feeling among brokers that other insurers will be prepared to be more competitive, particularly in relation to those firms with good claims records and adequate risk management procedures in place.

The move may also provide a good opportunity for restructuring, with quali-fying insurers being prepared to underwrite perhaps £ 3m or £ 4m, rather than the compulsory £ 2m cover. In turn, it is hoped this will lead to improved rates being offered by excess layer insurers.

Risk management

Risk management is one aspect that has perhaps changed with the introduction of the commercial market. Clearly, risk management is relevant not just to the level of premium a firm might pay, but also to improving productivity and ser-vice delivery, and to maintaining reputation. In the days of SIF, it was perhaps seen as a nice to have', but you were still insured whether you managed your PI risk or not. Now, the market will consider a firm's risk management processes in deciding whether they are an attractive proposition or not.

Firms should be able to demonstrate that they have identified the risks at-taching to their particular types of work, and that they can prop-erly manage those risks. Only when the management of those risks results in a reduction of the number of claims is it likely to also result in lower premiums. It is the reduction in claims insurers are interested in, not simply the fact that a proc-ess is in place, and that takes time.

Inevitably, this more enlightened approach to risk management by commercial insurers impacts on sole practitioners, who, figures suggest, traditionally con-tribute only 12% of premiums, while accounting for some 21% of claims. Sole practitioners already have greater spend on insurance in terms of fee income to premium ratio. If they cannot satisfy the qualifying insurers that they have the time and resources to put proper risk management systems in place, the gulf in insurance spend between sole practitioners and larger firms could continue to grow.

Professional Negligence: The millionaires' club Legal Week April 14

Similarly, larger firms have benefited from an ability to self-insure to a greater extent than they had been able to do previously under SIF. Prior to Sep-tember 2000, there was a prescribed policy excess of 1% of fee income up to a maximum of £ 150,000. Hence firms with a fee income of more than than £ 15m were restricted to a policy excess of £ 150,000. The new regime allows those firms greater potential for self-insurance over and above that figure, with some sav-ing on their overall PI insurance cost.

Trends in claims

The last boom in negligence cases came in the property crash of the early 1990s, with buyers and lenders claiming mortgages had not been properly ex-plained. With the move away from SIF, it is difficult to gather collective in-formation about the number of claims or trends in any one practice area. But, according to figures published by Zurich Professional last year, residential conveyancing claims continued to account for a third of all claims notified to them.

Brokers report a slow increase in the quantum rather than the frequency of claims. Five years ago, the incidence of paid claims over £ 1m was rare, but such claims are more common now.

There has also been an increase in paid claims of £ 5m and even £ 10m, which were previously almost unheard of.

It seems the rising quantum of claims has not led to increased suits against our colleagues at the Bar. With the abandonment of the advocates' immunity from suit following the House of Lords' decision in Hall v Simmons 1999 , and the move from SIF to the commercial insurance market in September 2000, a deluge of claims against barristers was widely anticipated.

But, according to Hugh Wodehouse of Bar Mutual, this has not happened in practice. Given the recent comments of the House of Lords in Moy v Pettman Smith 2005 , it seems the respective overall risks for the advocate barristers' pro-fession remain below those faced by solicitors.

Often solicitors can be heard complaining about the level of their third largest overhead - PI insurance. However, even with the latest dilution in each and every claim cover, the Law Society minimum terms give solicitors better pro-tections as insureds than virtually any other profession. Furthermore, there is plenty of scope for law firms, which live and breathe' effective risk manage-ment, to achieve very competitive terms from the PI market.

Mark Hick is a professional negligence partner and Samantha Holland an asso-ciate at Wragge & Co. LOAD-DATE: April 14, 2005

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