1. Arthur J S Hall & Co (A Firm) v Simons; Woo(fSeddon (A Firm) v Barrett; Roberts & Hill (A Firm) v Harris (conjoined appeals) (2000) 3 WLR 543.

2. Castle, J and Tregear, F ‘The Bar Immunity: Private Interest or Public Policy? An Examination of Barristers' Immunity’ (1996) 8 International Insurance Law Review 239 at 239.Google Scholar

3. See Dugdale, T ‘Immunity for the Case plan- Atwell v Michael Perry & Co ’ (1998) 14(3) Professional Negligence 184 at 187.Google Scholar

4. The immunity used to be confined to barristers, but now covers solicitor advocates (see Saif Ali v Sidney Mitchell and Co (1980) AC 198), and indeed, all those permitted to perform advocacy services (see Courts and Legal Services Act 1990, s 62).

5. The Courts and Legal Services Act 1990, s 62 confirmed that the immunity provided by the common law extended to all advocates.

6. Rondel v Worsley (1967) 3 All ER 993; (1969) 1 AC 191.

7. Saif Ali v Sidney Mitchell and Co (1978) 2 All ER 1033; (1980) AC 198.

8. Miller, C ‘The advocate's duty to justice, where does it belong?’ (1981) 97 LQR 127 at 137.Google Scholar

9. Until recently, the issue of advocates ' immunity has primarily affected the Bar. Solicitors now routinely act as advocates in the lower courts, and can also act in the higher courts, although this is still relatively rare.

10. (1969) 1 AC 191.

11. (1963) 2 All ER 575.

12. These duties include the rule that counsel must not mislead the court; cannot cast any unjustified aspersions on any party or witness; and cannot withhold documents or authorities, even if they damage the client's case.

13. In the original criminal trial, Rondel was represented by Worsley as a result of a ‘dock brief’. This practice, which pre-dated legal aid, allowed a defendant to ask any banister robed in court to represent him for a nominal fee, without the need for a referral by a solicitor.

14. (1980) AC 198.

15. It was the owner's wife who had been driving. She admitted driving without due care and attention. Proceedings were issued against her husband on the basis that she had been driving as his agent.

16. The Courts and Legal Services Act 1990, s 62 extended the common law immunity from negligence enjoyed by barristers to all advocates. It did not give the immunity a statutory basis, but simply recognised that any immunity which did exist at common law should be available to all those providing advocacy services.

17. (1974) 1 NZLR 180.

18. A Aurora and A Francis (1998) The Rule of Lawyers Fabian Society, Discussion Paper 42, p 12.

19. Castle and Tregear, n 2 above, at 242.

20. Castle and Tregear, n 2 above, at 243.

21. Kelly v Corston (1997) 4 All ER 466 at 475 per Judge LJ.

22. Dugdale, T ‘Advocates' immunity under scrutiny’ (1998) 14(2) Professional Negligence 75 Google Scholar.

23. Atwell v Michurl Pern & Co (1998) 4 All ER 65.

24. Dickinson v Jones Alexander arid Co (1993) 2 FLR 521. In this case, the solicitors admitted liability for negligence, the only issue before the court being the quantum of damages which they should pay.

25. B v Miller and Co (1996) 2 FLR 23.

26. (1997) 4 All ER 466.

27. Dugdale, n 22 above.

28. See Burrows, D ‘Ancillary relief review’ (1998) 28 Fam Law 477 Google Scholar; Dugdale, n 22 above; Mitchell, J ‘Consent orders and advocates ' immunity’ (1998) 142(33) SJ 786 Google Scholar.

29. Burrows, n 28 above, at 480. Nor does the claimant have a remedy by means of an appeal. Consent orders cannot normally be varied (see Dinch v Dinch (1987) 2 FLR 162), even where they are agreed to as a result of bad legal advice (Harris v Manahan (1996) 4 All ER 454). An order can only normally be set aside where there has been fraud, misrepresentation, non-disclosure or a fundamental change of circumstances.

30. Frazer Harris v Scholfield Roberts & Hill (1998) 2 FLR 679.

31. Griffin v Kingsmill (1998) PIQR 24.

32. The settlement had to be approved by a consent order because the claimant was a minor. Although the court decided that the claim could not be struck out, on the facts, no negligence was found.

33. Arthur JS Hall & Co (A Firm) v Simons (1999) 3 WLR 873. This case involved four separate appeals.

34. Per Lord Bingham.

35. The judges felt that it was difficult to derive any clear principle from the case, as although all three members of the Court of Appeal had upheld the barrister's claim to forensic immunity, they did so on different grounds. The court also distinguished it from the appeals before it on the ground that they all concerned claims against solicitors, whereas Kelly v Corston had concerned a barrister.

36. See Lord Diplock's judgment in Saif Ali v Sidney Mitchell & Co (1980) AC 198, esp at 223, 229–230.

37. Chandran, R ‘No Immunity for Counsel in Singapore’ (1997) 13(4) Professional Negligence 116–118 at 118Google Scholar; see also Slapper, G ‘Advocate's immunity from an action for negligence’ (1996) 22(3/4) Commonwealth Law Bulletin 1013 Google Scholar (reprinted from Law Times, 23 January 1996), who argues that the rules ‘protective as they are to barristers, have been contrived by judges - mostly senior banisters who have spent their working lives in that profession - who have a particular sympathy for the work, worries and economic interests of advocates’.

38. Veljanivski, C G and Whelan, C J ‘Professional Negligence and the Quality of Legal Services - An economic perspective’ (1983) MLR 700 at 712Google Scholar.

39. National Consumer Council Ordinary Justice (London: HMSO, 1989) p 223.

40. Richards, K ‘Advocates' immunity: justice delivered by the law’ (1995) 5(5) Consumer Policy Review 161.Google Scholar

41. Of course, negligence actions are not the only, nor even the primary, remedy for dissatisfied consumers of legal services. Complaints systems operated by the professional bodies deal with inadequate professional services: see Seneviratne, M ‘Consumer complaints and the legal profession: making self-regulation work?’ (2000) 7(1) International Journal of the Legal Profession 39 CrossRefGoogle Scholar; Seneviratne, M The Legal Profession: Regulation and the Consumer (London: Sweet & Maxwell, 1999)Google Scholar. However, the General Council of the Bar's complaints scheme did not cover complaints of poor service relating to aspects of an advocate's conduct which attracted immunity from suit in contract or tort. This was described as an ‘impediment to a fully effective complaints system’ by the Legal Services Ombudsman (Reflecting Progress. Annual Report of the Legal Services Ombudsman 2000/2001, p 29). The Legal Services Ombudsman was prevented from investigating such conduct by virtue of s 22(7)(b) of the Courts and Legal Services Act 1990: see James, R and Seneviratne, M ‘The Legal Services Ombudsman: Form versus Function’ (1995) 8(2) MLR 187 at 197CrossRefGoogle Scholar. Other curbs on poor advocacy standards include disciplinary action and wasted costs orders. These sanctions do not compensate clients directly, although without doubt they act as powerful incentives on advocates to perform competently.

42. Indeed, the imposition of civil liability may be a means of improving the quality of legal services. It can act as an incentive system which can promote socially desirable goals: Veljanovski and Whelan, n 38 above.

43. Aurora and Francis, n 18 above, p 12.

44. Aurora and Francis, n 18 above, p 17.

45. See also English, R ‘Forensic Immunity Post-Osman’ (2001) 64(2) MLR 300 CrossRefGoogle Scholar; Leng, Ter Kah ‘The Demise of Advocates' Immunity’ (2000) 9(2) Nottingham LJ 74.Google Scholar

46. Arthur JS Hall & Co (A Firm) v Simons (1999) 3 WLR 873.

47. The Court of Appeal made it clear that later proceedings, which collaterally challenged an earlier subsisting judgment, would not necessarily be an abuse of process.

48. The case was heard by seven Law Lords: Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Millett.

49. Because of the importance of the case, the Bar Council also submitted evidence.

50. Indeed, even in the case of Saif Ali v Sidney Mitchell & Co, the House of Lords had not considered that all of the public policy reasons used in Rondel v Worsley had been valid to justify the basis for the immunity.

51. Castle and Tregear, n 2 above, at 243.

52. Chandran, n 37 above, at 117.

53. For a recent endorsement of this view, see Capital & Home Counties plc v Hampshire County Council (1997) 3 WLR 331. In this case, which dealt with the extent of liability for negligence of fire authorities, Stuart-Smith LJ said that there was ‘no general immunity for professionals or others carrying out difficult tasks in stressful circumstances’ (at 354). The forensic immunity enjoyed by solicitors and barristers was ‘because their duty to the court might conflict with their duty to their clients’ (at 354).

54. See Ipp, D A ‘Lawyers Duties to the Court’ (1998) 114 LQR 63 at 103Google Scholar.

55. Saif Ali v Sidney Mitchell and Co (1980) AC 198 at 233.

56. See Castle and Tregear, n 2 above, at 241. Interestingly, even in 1994, the judges were advocating being wary of penalising an advocate in wasted costs for decisions made under the pressure of a court hearing. In Ridehalgh v Horsefield and Watson v Watson (Wasted Costs Order) (1994) 2 FLR 194, Sir Thomas Bingham MR noted that an ‘advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill’ (at 209). See Burrows, n 28 above, at 986.

57. Cranston, R ‘Legal Ethics and Professional Responsibility’ in Cranston, R (ed) Legal Ethics and Professional Responsibility (Oxford: Clarendon Press, 1995) p 11.Google Scholar

58. Per Lord Steyn.

59. Castle and Tregear, n 2 above, at 241.

60. Section 62(1) of the Courts and Legal Services Act 1990 had not endorsed the immunity. It said that whatever immunity there was would be extended to solicitors.

61. This approach was followed in Heil v Rankin (2000) 3 All ER 138, where it was considered that it was appropriate for the court to increase damages for pain, suffering and loss of amenity, rather than leave the matter for the legislature. This was because it was felt that the court was only applying existing principles and updating them. There was no danger of injustice because there was the ‘possibility of change which insurers and others ought to foresee’: Lewis, P ‘Increasing the Price of Pain: Damages, the Law Commission and Heil v Runkin ’ (2000) 64(1) MLR 100 at 105CrossRefGoogle Scholar. Contrast this approach to that adopted in Australia. In Bolund v Yaks Corpn Pry Ltd (1999) HCA 64, Kirby J questioned whether the court could abolish the immunity, or restrict it to civil proceedings. The legislature would be able to ‘consider the limitations to be imposed’ and allow ‘those affected the opportunity of securing insurance or taking other steps to minimise their exposure to liability hithertofor thought not to exist’.

62. This applies when the judge is acting within jurisdiction, that is, where he or she has the authority to make the decision in question.

63. Palmer v Durnford Ford (a firm) (1992) 2 All ER 122 at 127 per Simin Tuckey QC; M (a minor) v Newham London Borough Council (1994) 4 All ER 602 at 618 per Bingham MR.

64. Stanton v Cullaghun (2000) QB 75, CA. Expert witnesses, however, are not immune in respect of advice given to clients as to the merits of the claim, or as to whether he or she was qualified to act at all. In the case of Palmer v Dunford (1992) 2 All ER 122, it was noted that experts are usually liable to their clients for advice given in breach of their contractual duty of care. The immunity is based on public policy, and should only be granted where its denial would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court.

65. M (a minor) v Newham London Borough Council (1994) 4 All ER 602 confirmed that the public interest which witness immunity protects is the proper administration of justice.

66. Suif Ali v Sidney Mitchell and Co (1980) AC 198 at 222 per Lord Diplock.

67. Per Lord Hope of Craighead.

68. Per Lord Steyn.

69. Lord Hoffmann was clear that it was only the advocate who had a duty of care. This case, therefore, does nothing to challenge the immunity afforded to expert witnesses. However, this blanket immunity may too come under scrutiny in the future. See English, n 45 above, who suggests that witness immunity might not be considered so ‘different in essence from the policy immunity of the police’ and queries whether it would ‘survive an Osmarz challenge’ (at 308).

70. (1982) AC 529.

71. Somusundaram v M Julius Melchior & Co (1988) 1 WLR 1394.

72. (1996) 2 All ER 763.

73. It should be noted that the same issue can be litigated in both the civil and criminal courts, with different outcomes. For example, a tort action in a health and safety case may come to a different conclusion at court from a criminal prosecution by the Health and Safety Executive. However, this does not present a challenge to the correctness of the decision in either court. The different outcome is a result of the different bases for liability in the two courts and differences in the burden of proof.

74. Castle and Tregear, n 2 above, at 242. See also J PowelL QC ‘Barrister's Immunity - Time to Go’ Counsel, March/April 1995; and R Jackson QC ‘Disappointed Litigants and Doubtful Actions’ Counsel, May/June 1995.

75. Nicholson, K ‘The Immunity of Barristers from Suit in Negligence - The Australian Experience’ (1989) 5(4) Professional Negligence 124.Google Scholar

76. Zander, M Legal services for the community (London: Temple Smith, 1978) p 135.Google Scholar

77. (1987) 2 All ER 1085.

78. (1993) 1WLR 11811.

79. (1997) 3 All ER 909.

80. Acton v Graham Pearce Co (1997) 3 All ER 909. See also McLeish v Amoo-Gottfried & Co (1993) 10 Professional Negligence 102, where damages for mental distress were awarded to a claimant who had been wrongly convicted following the negligent preparation of his case by the defendant solicitor. The conviction had been subsequently quashed on appeal.

81. Dugdale, n 22 above.

82. Arthur J S Hall & Co (A Firm) v Simons (1999) 3 WLR 813.

83. Arthur J S Hall & Co (A Firm) v Simons (1999) 3 WLR 873 per Lord Bingham.

84. Per Lord Steyn.

85. Lords Hope and Hobhouse dissenting.

86. Per Lord Hope. Lords Hutton and Millett also mention art 6. Interestingly, Lord Hoffmann was of the opinion that the question of whether the immunity was contrary to art 6 did ‘not arise’.

87. Arthur J S Hall & Co (A Firm) v Simons (1999) 3 WLR 873.

88. See also Money-Kyrle, R ‘Advocates' immunity after Osman: Part 1’ (1999) 149(6893) NLJ 945 Google Scholar; ‘ Advocates' immunity after Osman: Part 2’ (1999) 149(6894) NLJ 981 Google Scholar.

89. Harris, D, O'Boyle, M and Warbrick, C Law of the European Convention on Human Rights (London: Butterworths, 1995) p 164 Google Scholar.

90. Wadham, J and Mountfield, H Human Rights Act 1998 (London: Blackstone, 1999) p 77.Google Scholar

91. Yourow, H C The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague: Kluwer, 1996)Google Scholar.

92. It should be noted that art 6(1) does not expressly guarantee a right of access to a court: see van Dijk, P ‘Access to Court’ in Macdonald, R St J, Matscher, F and Petzold, H (eds) The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993)Google Scholar. It could be interpreted as being limited to guaranteeing in substance the right to a fair trial in legal proceedings which are already pending. The scope of the article was clarified in Colders case in 1975 (Golder v United Kingdom (1975) 1 EHRR 524(21 February 1975)), where the European Court decided that the article embodied a right to have any claim relating to civil rights and obligations brought before a court or tribunal. The article thus guaranteed a right of access to a court, which, although not expressly stated, is inherent in the fact that there is a right to a fair trial.

93. See van Dijk, n 92 above.

94. For a comprehensive discussion of the development of art 6(1), see Gearty, C ‘Unravelling Osman’ (2001) 64(2) MLR 159 CrossRefGoogle Scholar.

95. Golder v United Kingdom (1975) 1 EHRR 524 (21 February 1975).

96. Three of the 12 judges dissented from this decision.

97. Since Golder, the right of access to a court is generally accepted as the starting point for art 6: van Dijk, n 92 above, p 346.

98. Ashingdane v United Kingdom (1985) 7 EHRR 528 (28 May 1985). The case concerned the right of a person detained under Mental Health Act legislation to sue the hospital where he was detained. Legislation provided that staff and responsible authorities were immune from suit. (This immunity was removed by the Mental Health Act 1983, s 139, so that there is now no longer this procedural bar). The Commission had ruled in a previous case (Dyer v United Kingdom (1984) 39 DR 246) that a right to compensation for damage caused by negligence is, as such, a civil right for the purposes of art 6. However, in Ashingdane it was decided that the immunity from claims in negligence provided in the legislation was justified, because it served a legitimate public policy function, by providing protection against unfair harassment by litigation. (There was a dissenting judgment, from Judge Pettiti, on the basis that the immunity did not respect the principle of proportionality).

99. For a general discussion about the scope of art 6, see McBride, J ‘Access to Justice and Human Rights Treaties’ (1998) 17 Civil Justice Quarterly 235 Google Scholar. See also Eissen, M ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in Macdonald, R St J, Matscher, F and Petzold, H (eds) The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993)Google Scholar.

100. For example, in X v United Kingdom (1976) 8 DR 216 (10 December 1976). the Commission decided that the Convention does not guarantee a right to obtain compensation for injury sustained in an accident. In Dyer v United Kingdom (1984) 39 DR 246 (9 October 1984) it was decided that the fact that legislation may remove certain people from the general regime of civil liability, replacing it with a system of automatic compensation, is not contrary to art 6(1).

101. (2000) 29 EHRR 245.

102. See English, n 45 above, at 305.

103. See Gearty, n 94 above, at 161.

104. Gearty, n 94 above, at 159.

105. Baker, C ‘Local Government Update’ (1999) 143(4) SJ 86 Google Scholar. See also Gearty, n 94 above, at 185.

106. Morgan, E ‘Police immunity, public policy and proportionality’ (1999) 149(6870) NLJ 13 Google Scholar.

107. See English, n 45 above, at 306.

108. Gearty, n 94 above, at 185, fn 140.

109. See English, n 45 above, at 304; Gearty, n 94 above, at 186.

110. The government had been asked to justify the immunity by the European Court of Human Rights. This request was made as part of its investigation into a case brought by a bank accountant, Mohammed Yusof Patel, who was convicted of prejudicing a drug- traffcking investigation. He blamed his banister in part for what he alleged was a miscarriage of justice: see Law Society Gazette, 18 November 1998, p 5.

111. Gearty, C ‘An Ethical Infusion?’ Counsel, December 1998, p 11.Google Scholar

112. Money-Kyrle, R ‘Advocates' immunity after Osman: Part 2’ (1999) 149 (6894) NLJ 981 Google Scholar.

113. See also Hayes, J A and Poll, J ‘Lawyers immunity: the wider English and European framework’ (1991) 7(4) Professional Negligence 184 Google Scholar. In Ireland, the question of whether a banister should be liable in negligence has never been fully explored: Castle and Tregear, n 2 above, at 244.

114. Demarco v Ungaro (1979) 95 DLR (ed) 385.

115. In Currant v Moska (1985) 2 WWR 80, Matheson J observed that: ‘With respect to the duty of counsel to the court and the risk that, in the absence of the immunity, counsel will be tempted to prefer the interests of the client and thereby prolong trials … There is no empirical evidence that it is so serious to justify rendering the client remediless’ (at 82).

116. See Zirin, J D ‘Should clients be able to sue their lawyers?’ The Times, 15 June 1999 Google Scholar.

117. See Chandran, n 37 above.

118. In the case Chong Yeo and Partners v Guan Ming Hardware and Engineering Pte Ltd (1997) 2 SLR 729 it was decided that a finding of negligence did not affect the decision of the original trial. There was therefore no policy reason why counsel should be granted immunity. See also Ter Kah Leng, n 45 above, at 85.

119. See Rees v Sinclair (1974) 1 NZLR 180.

120. See Giannarelli v Wraith (1988) 81 ALR 417.

121. (1999) 74 ALJR 209.

122. (1988) 81 ALR 417.

123. Gleeson CJ, Gaudron, Gummow and Callinan JJ.

124. Saif Ali v Sidney Mitchell and Co (1978) 2 All ER 1033; (1980) AC 198.

125. Harris v Manahan (1997) FLR 205 at 209 per Lord LJ.

126. Although not client-centred, there were also other sanctions for poor advocacy standards, notably disciplinary action by professional bodies and wasted costs orders made by the court.

127. Nasir, K J ‘Advocates' immunity in the new professional landscape’ (1997) 141 (47) SJ 1174 Google Scholar.

128. English, n 45 above, at 304.

129. Sprince, A and Cooke, J ‘Article 6 and immunity in tort: let the facts speak for themselves’ (1999) 15(4) Professional Negligence 228 at 238Google Scholar.

130. So far, only a handful of cases involving alleged barristers' negligence have reached court, and in only two of them was the barrister found liable: Malkin, B ‘In the firing line' The Lawyer, 3 September 2001, p 29 Google Scholar.

131. In countries which do not have the immunity, there does not appear to be a flood of litigation from dissatisfied clients: see Chandran, n 37 above, at 118.

132. The Bar Mutual Management Company has not increased premiums for liability insurance, although it is monitoring the negligence claims position: Malkin, n 130 above.

133. ‘Barristers lose immunity from being sued’ The Times, 21 July 2000.