FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord Osborne

Lord Johnston

 

 

 

 

 

[2006] CSIH 7

A5555/01

 

OPINION OF THE LORD PRESIDENT

 

in

 

RECLAIMING MOTION

 

by

 

TREVOR RUSH McCAFFERTY WRIGHT

Pursuer and Reclaimer;

 

against

 

PATON FARRELL and ROBERT PATON and PETER FARRELL

Defenders and Respondents:

 

_______

 

 

 

Act: Peoples, Q.C., McSporran; Bishops (Pursuer and Reclaimer)

Alt: Murphy, Q.C., Shand, Q.C.; Dundas & Wilson (Defenders and Respondents)

 

10 February 2006

 

Background

[1] The broad question to which the parties to this reclaiming motion invited a judicial answer is whether a solicitor, conducting in person the defence of an accused person in criminal proceedings, can be sued by his client for damages in respect of the negligent conduct of that defence.

[2] It may be doubted whether the circumstances of this case are best suited to answering that question. The party sued by the reclaimer is a partnership, comprising at the relevant time two partners, one of whom was the individual who conducted the defence at the trial. Although, in accordance with the usual convention, the partnership (a legal entity in Scotland) is sued along with the partners "as such partners and as individuals", personal liability of a partner arises in such circumstances only in the event of failure of the firm. Further the narrative given by the reclaimer tends to suggest that the failure lying at the root of the events complained of was a failure of the firm, and not necessarily of the individual who conducted the defence at trial, prior to the trial and in preparation for it; the acts and omissions complained of in respect of the individual who conducted the defence at the trial appear to be have been largely influenced by misapprehension on his part as to a particular date, that misapprehension stemming from circumstances which proceeded the trial's commencement.

[3] In the event this reclaiming motion falls, in my view, to be disposed of on a ground unrelated to the question referred to above. However, as the way in which the trial was conducted by the solicitor is at least in part the basis of the reclaimer's case and as we have heard detailed submission on the question and were informed that the views of this court on it were regarded as of general importance, I am prepared to make certain observations on it.

[4] Lord Osborne has set out the reclaimer's averments, in so far as material, and the submissions of parties. I am grateful to him for doing so. I adopt his narrative.

[5] The task of judges is to interpret the law and to apply it to the circumstances of the particular case before the court. Where the issue is one arising at common law, that will ordinarily involve an examination of the relevant law as established by earlier decisions or by acknowledged principle and the application of that law to the circumstances presently before the court. Occasionally, a higher court may require to make a judgment based less on legal precedent or on previously acknowledged principle and more on what is appropriate as a matter of current legal policy. An answer to the question posed would, in my view, require a judgment of the latter kind. In such circumstances, while what has gone before cannot be ignored, the issue is more what is, as a matter of legal policy, right now.

 

Historical perspective on the issue of immunity

[6] It is clear, in my view, that over time judges of the highest distinction have, at different times and on occasions at the same time, held differing views as to whether and, if so, in what circumstances legal practitioners may be sued by clients disappointed by their performance. At one point at least in the history of Scots law a clear distinction was drawn between the position of counsel on the one hand and their instructing agents on the other. In Batchelor v Pattison and Mackersy (1876) 3 R. 914 the immunity of counsel from suit for negligence was rested by the court on the public office which an advocate held. That position was contrasted with that of the agent, whose relationship with his client was stated to be one of a contract of employment

"by virtue of which the client, for certain settled rates of remuneration, is entitled to require from the agent the exercise of care and diligence, and professional skill and experience" (per Lord President Inglis at page 918).

That observation was made in the context of a litigation in the Court of Session for the purposes of which both counsel and agent had been instructed.

[7] While, accordingly, Batchelor was not to any extent concerned with the relationship between an agent (or solicitor) exercising a right of audience in a lower court, whether civil or criminal, and his client, there is no doubt, in my view, that such a relationship was and is essentially of a contractual or other obligatory character with, subject to an argument as to classification subsequently to be addressed, duties of care arising out of that relationship. Lord Osborne has examined the pre-1967 authorities touching on the relationship between a client and an agent performing court-related functions for that client. While no case deals precisely with conduct of the kind criticised in the present action, I agree with Lord Osborne that there is no suggestion that an agent enjoyed immunity from suit in respect of his conduct of litigation in a lower court in which he was exercising a right of audience. Despite counsel's careful analysis of passages from Bankton's Institutes, I am not persuaded that they give adequate support to the proposition that immunity attached to the function of "advocacy" (whatever precisely its parameters) such that an agent, exercising that function in a lower court, was essentially in the same position as counsel. Even if that proposition might have been maintainable at one stage in the development of the law, there is no support for its survival into the nineteenth century. Had it so survived, it is difficult to understand how the principles enunciated in Batchelor could have been expressed in the way they were. That said, none of the authorities discussed by Lord Osborne directly addressed, far less determined, the question whether a solicitor exercising a right of audience enjoyed immunity from suit; none of them, in my view, precludes this court, in the light of the current requirements of the due administration of criminal justice, from determining that question one way or the other.

[8] Important developments subsequently occurred, concerned immediately with the liability to suit of barristers appearing in the courts of England and Wales. In Rondel v Worsley [1969] 1 A.C. 191 (the speeches in which were delivered in November 1967) the House of Lords held that a barrister was immune from an action for negligence at the suit of a client in respect of his conduct and management of a case in court and in respect of preliminary work connected with court proceedings. The immunity, it was held, was not based on the absence of a contractual relationship between the barrister and the client but on certain public policy considerations (Lord Reid at page 227). Although the case concerned an English barrister and an accused person from whom he had accepted a dock brief, many Scottish authorities, including Batchelor, were cited in argument. Lord Reid, delivering the first speech and expressing the view that the existing rule was based on considerations of public policy, stated that there appeared to him to be no relevant difference in that respect between conditions in England and in Scotland (page 227). Although no issue arose in that case about the liability of solicitors, Lord Reid thought that some assistance could be got from looking at the record of solicitors (page 230). He observed:

"They are liable to be sued for negligence in conducting cases and they do conduct an immense number of cases in the lower courts".

Although reported decisions were few, Lord Reid noted that there had been

"one or two Scottish cases where a solicitor has been held negligent in carrying out work in court which would have been done by an advocate if counsel had been instructed" (page 231);

His Lordship does not name the Scottish cases which he had in mind but Ritchie v Macrosty (1854) 16 D. 554, Urquhart v Grigor (1857) 19 D. 853, Smith v Grant and Leslie (1858) 20 D. 1077 and Murray v Reilly 1963 S.L.T. (N) 49 are noted as having been cited in argument (page 207). Having held that, for the public policy reasons which he had expressed, it was in the public interest to retain, to the extent indicated, the existing immunity of barristers from actions for professional negligence, Lord Reid returned to the position of solicitors. At page 232 he indicated his "present view" as being that

"the public interest does require that a solicitor should not be liable for negligence in carrying out work in litigation which would have been carried out by counsel if counsel had been engaged".

[9] While that observation was obiter and expressed in an English case, it was, in my view, the logical consequence of the reasoning which had led Lord Reid to his conclusion in relation to barristers' immunity. The logic was endorsed by Lord Pearce at page 267, by Lord Upjohn at page 284 and by Lord Pearson at page 294. Thus, while there were prior indications, although not fully considered decisions, to the effect that solicitors were liable to be sued for negligence in the conduct of cases in the lower courts, public policy considerations, as at 1967 and equally applicable in Scotland as in England, pointed to the conclusion that solicitors should, in respect of equivalent work, have the same immunity as barristers or advocates.

[10] At page 227 Lord Reid had observed that public policy was not immutable. In Saif Ali v Sidney Mitchell & Co. [1980] A.C. 198 the House of Lords required to consider the scope of the immunity from suit enjoyed by a barrister - on this occasion in relation to civil proceedings. Their Lordships, by a majority, concluded that the scope of a barrister's immunity was less extensive than might have been taken from the speeches delivered in Rondel v Worsley. The barrister's immunity from suit in respect of proceedings in court was affirmed. Their Lordships in the majority opined in positive terms that the same immunity attached to a solicitor acting as an advocate in court as attached to a barrister (Lord Wilberforce at page 215G-H, Lord Diplock at page 224A and Lord Salmon at page 227H), thus supporting the view expressed on that matter by Lord Reid and others in Rondel v Worsley.

[11] Neither Rondel v Worsley nor Saif Ali v Sidney Mitchell & Co. was directly binding on the Scottish Courts but, in the absence of any existing or developing difference in the relevant conditions in the two jurisdictions, the views there expressed were strongly influential in Scotland. Lord Davidson (then a senior Scottish judge) and Lord Rodger of Earlsferry (then Lord Advocate) observed, with reference to the immunity of counsel,

"older Scottish discussions and decisions must now, it is submitted, be read in the light of the decisions of the House of Lords in the Rondel and Saif Ali cases". (Stair Encyclopaedia, vol. 13 para. 1380, published in 1992).

In Anderson v H.M. Advocate 1996 J.C. 29 a bench of five judges of the High Court of Justiciary had to consider the soundness of earlier authority to the effect that lack of skill and diligence in the preparation or conduct of an accused's defence could not be pleaded as a miscarriage of justice. In the event that earlier authority was overruled. At page 35 the court considered the position of solicitor-advocates and of solicitors. At page 35F-G Lord Justice General Hope (delivering the Opinion of the Court) said:

"In Rondel v Worsley the view was expressed that the rule of public policy which requires that a barrister should be able to carry out his duty to the court independently should apply also to solicitors, to give them immunity from suit for negligence in regard to work in litigation which would have been carried out by counsel if counsel had been acting in the case. Thus the solicitor when acting as his client's advocate is placed on the same footing as counsel in regard to the independence which he is entitled to exercise in the conduct of the case in court on his client's behalf".

The formulation of the latter sentence indicates, in my view, that the view expressed by Lord Reid in Rondel v Worsley and endorsed by Lords Wilberforce, Diplock and Salmon in Saif Ali v Sidney Mitchell & Co. as to the equivalence with respect to immunity from suit for negligence in regard to work in litigation, as between counsel on the one hand and a solicitor advocate or a solicitor acting as his client's advocate on the other, had been received into the law of Scotland. While the observation was obiter it was, in my view, consistent with the approach that, in this area of the law, evolution in accordance with public policy considerations was appropriate.

[12] But, as Lord Reid had said, public policy is not immutable. Mutation undoubtedly came with the decision of the House of Lords in Arthur J.S. Hall & Co. v. Simons [2002] 1 A.C. 615. There a committee of seven Lords of Appeal re-examined the issue of immunity from suit of advocates, in the wider sense of that expression. They were unanimously of the view that the public interest in the administration of justice no longer required that advocates have immunity for alleged negligence in the conduct of civil proceedings. They were divided on the issue whether the public interest now required that advocates have immunity from suit in negligence in the conduct of criminal cases. The majority were of the view that the public interest no longer required the latter immunity. Among the dissentients was Lord Hope of Craighead, a former Lord Justice General. Although the width of the views expressed by their Lordships may be said to have been unnecessary for the decision of the cases before the House, and these views were expressed largely in the context of procedural factors which are not applicable in Scotland, they require careful consideration by this court.

[13] It is, in my opinion, impossible to avoid the conclusion that, in the views of their Lordships, public interest considerations had moved on since the decision of the House in Rondel v Worsley. While that case was not overruled, it was not followed. The fact that their Lordships were unanimously of the view that, in so far as civil proceedings were concerned, advocates' immunity from suit was no longer justified is a telling pointer to a new perception. Counsel for the respondents in the present case urged us not to assume that the same conclusion would or should be reached in relation to civil proceedings in Scotland. It is unnecessary to make that assumption and I do not do so. But, as presently advised, I find it difficult to suppose that the unanimous views of their Lordships on that aspect, albeit expressed in the context of English procedural arrangements, would not be highly influential on a Scottish court.

 

Current considerations on immunity

[14] For present purposes the starting point, it seems to me, is the professional relationship between a solicitor and his client. That relationship, whether contractual or otherwise, carries with it a general obligation on the part of the person providing professional services to do so with reasonable skill and care; it further gives rise, again generally, to a remedy in damages for loss or detriment caused by failure in that regard. Any immunity from suit is a derogation from a person's fundamental right of access to the court which has to be justified (Hall, per Lord Hope at page 710). Justification would similarly, in my view, be required if the issue were to be approached, as the respondents argue, not on the basis of immunity from suit but on the basis of a restriction on the ambit of the duty of reasonable care.

[15] If the issue is addressed as a matter of human rights law, again justification would be required. In that context it would only be justifiable "if it is designed to pursue a legitimate aim and then only if it satisfies the test of proportionality" (Hall, per Lord Hope at page 711).

[16] In Hall Lord Hope, adopting an analysis favoured by Lord Steyn and Lord Hoffmann, listed four headings under which the arguments for immunity might be addressed. These were:

"(1) The cab rank rule; (2) the analogy of the immunity of others who participate in court proceedings; (3) re-litigation or collateral challenge and (4) divided loyalty or the duty of the advocate to the court". (page 714).

I also am content to adopt that analysis, although, as I shall later explain, the fourth factor may, in the context of Scottish criminal procedure, require to be looked at in an extended sense. Lord Hope subsequently observed that Mason C.J. in Giannarelli v Wraith (1988) 165 C.L.R. 543 at page 555, had said that, of the various public policy factors, only headings (3) and (4) warranted serious examination (page 715). For the reasons given by Lord Hope, headings (1) and (2) have, in my view, little if any weight and can, for present purposes, be disregarded; moreover the first of these has no application to solicitors. The remaining two are more formidable.

[17] There is, in my view, a strong public interest in the soundness of subsisting criminal convictions not being capable of challenge, directly or indirectly, otherwise than by the processes of appeal or review set down by Parliament or recognised by well-established criminal procedure. Under section 106(1) of the Criminal Procedure (Scotland) Act 1995 a person convicted on indictment may, with leave granted in accordance with section 107 of that Act, appeal under that Part of the Act to the High Court against such a conviction. Under section 175(2) of the Act an analogous right of appeal, with leave, lies to the High Court against a conviction in summary proceedings. In certain circumstances an appeal to the High Court against conviction in summary proceedings may be brought by bill of suspension (section 191). Under section 194B the Scottish Criminal Cases Review Commission on consideration of any conviction of a person convicted on indictment may, if they think fit, at any time and whether or not an appeal against such a conviction has previously been heard and determined by the High Court refer the whole case to the High Court where it is heard and determined, subject to directions, as if it were an appeal under the statute. The power to refer has been extended to convictions in summary proceedings (section 194E and Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999). The grounds on which the Commission may refer a case are that they believe (a) that a miscarriage of justice may have occurred; and (b) that it is in the interests of justice that a reference should be made (section 194C). In recent years a number of such references have been made, some of them resulting in the quashing of convictions. Since the decision in Anderson v H.M. Advocate an appeal to the High Court may be grounded on a failure by counsel or solicitor in the preparation or conduct of the defence leading to a miscarriage of justice.

[18] As Lord Hope observed in Hall at page 715 public confidence in the administration of criminal justice

"is likely to be shaken if a judge in a civil action were to hold that a person whose conviction has been upheld on appeal would not have been convicted but for his advocate's negligence".

A similar effect on public confidence is likely where no appeal is taken or where leave to appeal has been refused.

[19] Reference was made in the course of the discussion to section 10 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 which, by subsection (1) makes, for certain purposes, a subsisting criminal conviction admissible in civil proceedings. By subsection (2) it is provided that in the civil proceedings

"(a) he [the person against whom a conviction subsists] shall be taken to have committed that offence unless the contrary is proved".

The object of section 10 is to allow any pertinent conviction to be used for a purpose relevant to an issue in the civil proceedings but with a right to the civil party against whom the conviction is sought to be used to prove that he did not commit the offence in question. The section is most commonly invoked in actions of damages for personal injuries where the defender has been convicted in summary proceedings of a road traffic offence or of an offence related to health or safety at work. The soundness of the convictions in such cases are, in my experience, rarely challenged. The object of the exception is to afford, by way of defence, a means of rebutting the implication of relevant fault which might otherwise be drawn from the conviction. While a finding in the civil proceedings that the party convicted had not committed the offence in question might well raise a doubt as to the soundness of the conviction, it has never, so far as I am aware, been suggested that this provision made by Parliament is, given its scope and purpose, likely to shake general public confidence in the administration of criminal justice.

[20] The same cannot, in my view, be said for collateral challenges arising from civil actions for reparation by convicted persons. While a direct challenge in civil proceedings to a criminal conviction could be answered by a plea to the competency (Moore v Secretary of State for Scotland 1985 S.L.T. 38), an indirect challenge by way of an action of damages against the legal representative who conducted the trial would be less easy to deal with. It might well be difficult to distinguish, on the face of the pleadings, bona fide claims for damages for professional negligence from covert attempts by convicted persons to put in doubt their convictions. Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 has no direct application in Scotland; in any event, it appears to have proceeded on a view as to the underlying purpose of that litigation which in most cases might not be as readily capable of divination. While there are indications that the law of Scotland may be developing a principle of "abuse of process", I doubt whether it would be possible readily to identify and, under current procedural arrangements, to deal with cases falling within any such category. As Lord Osborne observes, the views of the majority in Hall appear to have been strongly influenced by the existence of well-developed procedural arrangements in England and Wales which have currently no equivalent in Scotland.

[21] It is said, however, that whatever merits there may be generally in a concern about collateral challenge to criminal convictions, that concern can have no relevance where, by due criminal process, any such conviction has been set aside, as in the present case. There is force in that point. If heading (3) were the only consideration in favour of retaining an immunity, there would, in my view, be a strong argument for restricting that immunity to cases where there was, at the relevant time, a subsisting conviction.

[22] There remains the argument based on the factor of "divided loyalty", though, as I have said, that factor may require in the Scottish procedural context to be looked at in an extended sense. There can be no doubt that heavy responsibilities are rested on those, whether counsel, solicitor-advocates or solicitors, who exercise rights of audience in the criminal courts. They require constantly to bear in mind and to seek to reconcile the duties which they owe to the court, to the client, to the relative professional body and to the general public. To achieve such a reconciliation requires of the representative an independence of mind.

[23] The decision of the High Court of Justiciary in Anderson v H.M. Advocate has had a number of consequences for the administration of criminal justice in Scotland. The possibility that a conviction may be open to challenge on the ground that a miscarriage of justice has occurred by reason of an act or omission on the part of the legal representative conducting the trial has, it may readily be supposed, had the consequence that any such representative is aware of the risk to his or her professional reputation should an appeal against conviction be sustained on such a ground. While on one view that circumstance might be regarded as a stimulus to better performance, on the other hand there is a real risk that trials will be protracted by the defence insisting in lines of examination or of cross-examination designed more to negative any suggestion that all possibly relevant avenues have not been pursued than to deal with issues which are truly material to the outcome of the trial. There seems little doubt that trials, particularly jury trials, are in general more protracted today than they were ten or more years ago. There are no doubt many reasons for that development but, the perceived need for the defence to avoid any possible criticism cannot be excluded. The risk of such protraction, with its consequences for the efficient and effective disposal of criminal justice, is liable to be materially increased if a representative not only faces possible criticism in the appeal court process but is also potentially exposed to suit for damages in a civil court on the ground of alleged negligence. I find persuasive the reasoning in Hall of Lord Hope (and of the judges whose views he cites) at pages 715G-717D.

[24] But, so far as concerns the current administration of criminal justice in Scotland, the matter, in my view, goes further. The risk of prejudice to that administration is also increased by a related factor. In Anderson v H.M. Advocate the court recognised that, where questions of fact arose in a criminal appeal as to the nature of the defence presented at the trial or the effect on that defence of the conduct of the appellant's counsel or solicitor, it might be appropriate, before the court exercised any statutory powers, to have information from the legal representative who had conducted the defence at trial - inevitably in the circumstances a person different from the appellant's representative at the appeal. At page 45 Lord Justice General Hope said:

"Difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor. It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal. The advocate or solicitor may, if he feels able to do so, provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal. But he is under no obligation to provide any such statement. He may, if he prefers to do so, wait until the appeal is lodged and then lodge his statement with the Clerk of Justiciary. In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted, the Clerk of Justiciary will provide him with a copy of the ground of appeal so that he may respond to the allegation if he has not already done so. Once again we emphasise that he is under no obligation to respond at this stage to the allegations. But the court is likely to find it helpful to know whether the complaint is disputed, and if so on what grounds, before it reaches a decision as to whether an inquiry into the facts will be necessary to enable it to decide the appeal".

[25] When Anderson v H.M. Advocate was advised on 1 December 1995 there had been little experience of the requirement that leave to appeal be obtained; that requirement had been introduced by amendments made to the Criminal Procedure (Scotland) Act 1975 by section 42 of the Criminal Justice (Scotland) Act 1995, the latter provision being brought into force on 26 September 1995 (Criminal Justice (Scotland) Act 1995 (Commencement No. 1, Transitional Provisions and Savings) Order 1995). The amended provisions subsequently had and have force in the consolidating statute, the Criminal Procedure (Scotland) Act 1995, which received the Royal Assent on 8 November 1995.

[26] Section 106(1) of that Act provides that any person convicted on indictment

"may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court"

against such conviction and against certain other disposals. Section 175(2) makes equivalent provision in relation to persons convicted, or found to have committed an offence, in summary proceedings. The statutory provisions regulating consideration of leave to appeal are contained in section 107 in relation to proceedings on indictment and sections 180 and 187 in relation to summary proceedings. Each involves consideration of certain documents by a single judge with a right, in the event of refusal of leave to appeal, to apply to a prescribed quorum of judges of the High Court for such leave.

[27] Since the decision in Anderson v H.M. Advocate there have been a significant number of cases in which defective representation, at or prior to trial and leading to a miscarriage of justice, is alleged to have occurred. In such cases it has been the practice of the court to invite the legal representative who conducted the trial and, where that representative had been instructed by a solicitor, the instructing solicitor to respond in writing to the allegations. It has more recently become increasingly common in appropriate cases for the court to invite a response before determining whether or not leave to appeal should be granted.

[28] While, as is clear from the passage quoted from Anderson v H.M. Advocate, the persons to whom such invitations are issued are not under any legal obligation to respond at that stage, it is difficult to underestimate the importance, for the efficient and effective administration of criminal justice in Scotland, of the court having a full, frank and prompt response from the legal representative or representatives in question. The difficulties occasioned for such administration by the absence of a response or by a delayed response have been noted by the court on more than one occasion (McBrearty v H.M. Advocate 2004 S.C.C.R. 337; Gillespie v H.M. Advocate 2003 S.C.C.R. 82). Any development liable to exacerbate such difficulties is a matter of concern.

[29] In my view there is a real risk that, in the event of a legal representative being liable to be sued for alleged negligence in the conduct of a criminal trial, that representative will be less willing to assist the court by responding fully, frankly and promptly to an invitation to do so made by it in a criminal appeal where defective representation is alleged. This position is likely, in most if not in all cases, to be made the more difficult by the attitude of professional indemnity insurers to disclosure of information which may bear upon any issue of civil liability. That attitude may also affect the willingness of legal representatives to co-operate with enquiries made by the Scottish Criminal Cases Review Commission.


The issue of classification

[30] Before expressing any concluded view as to whether in current circumstances it is in accordance with sound legal policy in Scotland that a solicitor, who has conducted in person the defence of an accused person in criminal proceedings, should be liable to be sued for the way in which he has conducted them, I find it necessary to address the issue of classification raised by the respondents. Their contention, in summary, was that he was not so liable because no duty of care was owed by such a solicitor to his client (a matter of substantive law) rather than that the solicitor enjoyed an immunity from suit. As it was a matter of substantive law, Article 6 of the European Convention on Human Rights and Fundamental Freedoms was not engaged, so ran the argument, there being in such circumstances no denial of access to the court. Reliance was placed on the treatment by the European Court of Human Rights in Z and Others v United Kingdom (2001) 34 EHRR 97 of the claim made by abused children against the local authority responsible for social services. In my view that contention is unsound. It is not without significance that in all the British and Commonwealth authorities to which we were referred the issue of whether barristers or advocates, or solicitors performing advocacy functions, could be sued has been regarded as one of whether or not there was an immunity from suit. That is because it has been recognised, since at least Rondel v Worsley, that the relationship between a legal representative conducting proceedings in court on behalf of the client is one which, as a matter of principle, consistently with relationships between other professional persons and those for whom they provide services, gives rise to a duty of care which, in the absence of justification, in turn gives rise to a correlative remedy in damages to the person adversely affected. The exclusion of such a remedy is, in my view, a "true immunity" (see Hall, per Lord Hobhouse of Woodborough at page 736F). Of course it may well be that public policy considerations have a bearing on whether a member of a particular class of persons owes any duty of care to persons affected by the activities of a member of that class. In Brooks v Commissioner of Police [2005] 1 W.L.R. 1495 it was held that certain alleged duties of care were not incumbent on the police. It was further held that, while the core principle enunciated in Hill v Chief Constable of West Yorkshire [1989] A.C. 53 was sound, it was best that that principle be reformulated in terms of the absence of a duty of care rather than in terms of a blanket immunity (Lord Steyn at para. 27). But it by no means follows that all cases in which liability has been held not to exist on the ground of immunity from suit should be reclassified as based on the absence of a duty of care. Given the general professional relationship to which I have referred, I am satisfied that any exemption from liability must be rested on the basis of immunity.

[31] It follows, in my view, that if such immunity is to have effect it must not only be clearly justifiable as a matter of common law but must in human rights terms be designed to pursue a legitimate aim and satisfy the test of proportionality (Hall, per Lord Hope at page 711F-G). In Hall (at page 736G) Lord Hobhouse described the criteria applicable in the context of human rights as being "similar to and no more rigorous than those to be applied under the common law".

 

Conclusion on immunity

[32] I have come to the view that, in the context of the administration of justice in Scotland, an immunity from suit can be justified. The immunity to which I refer is that in respect of the negligent conduct in court of a solicitor exercising a right of audience in the defence of an accused person. The effect of that immunity is to deny such a person, in the event of his sustaining loss as a result of such negligent conduct, the ability effectively to sue the solicitor in civil proceedings for damages in compensation for that loss. In circumstances where, as I accept, a professional duty of care is owed by a solicitor to his client (including in the conduct of criminal proceedings in his defence), such an immunity is not lightly to be acknowledged. It involves the denial of the ordinary form of remedy for loss caused by a breach of such a duty. But if the public interest in the due administration of criminal justice is, as I believe it is, at risk of being materially impaired if such an immunity is not acknowledged, then the private interest in monetary compensation must yield to the interests of the administration of criminal justice, including its administration in the context of any appeal by that accused against a conviction arising out of the proceedings to which the complaint of negligent conduct relates. I have earlier endeavoured to identify the risks to which I refer. These relate both to the first instance proceedings themselves and to any subsequent proceedings, whether by appeal or otherwise. In particular, so far as regards the first of these, the difficulties facing a legal representative exercising rights of audience on the part of an accused person can readily, in my view, be underestimated. While it is, of course, true that the paramount duty is that owed to the court, the pressures brought to bear, or attempted to be so brought, on such a representative by the difficult or obdurate client can nonetheless be real and powerful. It is of the first importance that, while owing a duty to his client and fulfilling that duty, such a representative should nonetheless be assured that he has a status which will allow him or her fully and without qualification to observe the duties owed to the court and to the public generally in the administration of justice. So far as regards subsequent appellate proceedings, I have already noted the difficulties which can already occur in the court obtaining full and candid accounts of what has transpired in the lower court. Any exacerbation of such difficulties could lead only to impairment of the administration of justice, including potentially to the doing of justice to the convicted person who has complained of defective representation. Lack of co-operation by a former legal representative could impair not only immediate rights of appeal but also any subsequent investigation, leading potentially to a referral to the High Court, by the Scottish Criminal Cases Review Commission. For these reasons the immunity also in my view pursues a legitimate aim and is proportionate to securing that aim. The circumstance that in each of two cases on admissibility decided after Hall (namely, Patel v United Kingdom (Application No. 38199/97) and Green v United Kingdom (Application No. 41658/98) the United Kingdom Government submitted argument based, among other factors, on the decision in Hall does not preclude this court taking the view that, having regard to matters germane to Scotland, immunity falls to be recognised.

[33] I acknowledge that the effect of its recognition is to deny to a client with a well-founded complaint the opportunity to pursue it by civil action. On the other hand, regard being had to the need to prove not only a breach of duty but also the requisite causal connection (discussed below), it may be doubted whether the incidence of unremedied wrong would be high. However that may be, for the reasons I have given, the private interest should, in my view, yield to the public interest. However, as I agree with Lord Osborne that the reclaiming motion should be disposed of in the respondents' favour by sustaining their contention in the cross-appeal, the views which I have expressed on the issue of immunity are not necessary to that disposal.


The cross-appeal

[34] I now turn to the cross-appeal. The issue here, in my view, is narrow. The reclaimer's conviction was quashed because the High Court held that there had in the whole circumstances been a miscarriage of justice. That determination involved no adjudication on the then appellant's guilt or innocence of the charges which had been preferred against him. Following on and as a result of his conviction the reclaimer was sentenced to a term of imprisonment, part of which he served before being released on interim liberation. Although other elements of disadvantage may be hinted at (such that his conviction subsisted until the appeal proceedings were finally disposed of some sixteen months after he had been sentenced) the burden of the loss which he claims is the loss of liberty which he experienced. The reclaimer does not offer to prove in the civil proceedings that he was innocent of the charge of which he was convicted; nor does he offer to prove that, if his defence had been properly conducted, he would not have been convicted. All he offers to prove (which, though formally denied by the respondents, cannot in substance be disputed by them), is that there was a miscarriage of justice; it is manifest that there was. In these circumstances is his action for damages relevant for inquiry?

[35] Before the temporary Lord Ordinary there appears to have been a lengthy and elaborate discussion, in part based on whether or not certain English authorities, in particular Allied Maples Group v Simmons & Simmons [1995] 1 W.L.R. 1602, were consistent with the law of Scotland. To a more limited extent the same line of authority was traversed in the argument by the respondents before us. For my part I find it unnecessary to enter upon such a discussion. The reclaimer's senior counsel did not, as I understood him, rely on Allied Maples or on English authority concerned with the loss of a chance. I accept that compensation for loss of liberty proved to have been caused, or materially contributed to, by negligence or other fault is a relevant head of damages. The reclaimer's loss of his liberty was consequent upon his conviction on charges of contravention of certain sections of the Road Traffic Act 1988. The outcome of his trial, his conviction on these charges, was the essential prerequisite to any relevant loss of liberty. To succeed in a claim for negligence against his representative it would, in my view, be necessary for him to demonstrate that, but for that representative's negligence, the outcome of the trial would have been more favourable than it was (Hall, per Lord Steyn at page 682B-C; Lord Hoffmann at page 687D (summarising the grounds upon which it had been concluded in Rondel v Worsley that public policy required a modified immunity); see also D'Orta-Ekenaike v Victoria Legal Aid [2005] H.C.A. 12, per McHugh J. at paras. 143 and 162). In Rondel v Worsley Lord Morris of Borth-y-Gest said, at page 249:

"If someone has been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been unskilful unless he could prove that he would have been acquitted had his counsel conducted the case with due care and skill. He would have to prove that on a balance of probability".

(See also Lord Reid at page 230)

[36] A miscarriage of justice may arise in a variety of circumstances. In the context of criminal proceedings in Scotland it is the touchstone against which the right of appeal conferred by section 106 (and in summary causes section 175) of the Criminal Procedure (Scotland) Act 1995 must be tested. In the present case it occurred because, in the view of the High Court, the reclaimer "did not receive the fair trial to which he was entitled" (Wright v H.M. Advocate 2000 S.C.C.R. 638 at page 643B). A range of errors on the part of the Crown and of the defence played a part in the accused not receiving that entitlement; the court did not require to enter upon any assessment of causation. In particular, although the grounds of appeal in that case, both as formulated in writing and in so far as pursued at the hearing, were directed to alleged failures on the part of his solicitor, the court required to take a wider perspective (page 639F-G). A determination that there has been an unfair trial (and a miscarriage of justice as a result of it) is a determination about the trial process. It does not, or at least does not necessarily, involve a determination that there would, but for the unfair elements, have been no conviction. Accordingly, proof that a trial has been rendered unfair by the conduct of an accused's legal representative does not of itself import that a conviction (and any custodial or other disposal which has followed on it), would, in the absence of such conduct, have been avoided.

[37] In these circumstances the reclaimer's averments of loss are, in my view, irrelevant. As proof of loss as well as of breach of duty is a necessary requirement for an action of damages for delict, the reclaimer's action is not relevantly pled and must for that reason be dismissed.

 

Disposal

[38] I would dispose of the reclaiming motion by recalling the Lord Ordinary's interlocutor of 27 August 2002, sustaining the third plea-in-law for the defenders and respondents and dismissing the action.


FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord Osborne

Lord Johnston

 

 

 

 

 

 

 

[2006]CSIH 7

A5555/01

 

OPINION OF LORD OSBORNE

 

in

 

RECLAIMING MOTION

 

by

 

TREVOR RUSH McCAFFERTY WRIGHT

Pursuer and Reclaimer;

 

against

 

PATON FARRELL and ROBERT PATON and PETER FARRELL

Defenders and Respondents:

 

_______

 

 

 

Act: Peoples, Q.C., McSporran; Bishops (Pursuer and Reclaimer)

Alt: Murphy, Q.C., Shand, Q.C.; Dundas & Wilson (Defenders and Respondents)

 

10 February 2006

 

The background circumstances

[39] The pursuer and reclaimer in this reclaiming motion has raised an action of damages against the defenders and respondents, who are a firm of solicitors and the individual partners thereof. The circumstances giving rise to the action, as outlined in the reclaimer's averments, are these. On or about 14 December 1998, the reclaimer appeared for trial in respect of two indictments in Kilmarnock Sheriff Court. In the first indictment, he was charged with contraventions of section 103(1)(b) and section 143(1) and (2) of the Road Traffic Act 1988. In the second indictment, the reclaimer was charged, along with three other accused persons, with theft by housebreaking, theft of a motor car and a contravention of section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995.

[40] The date of the offences libelled in the charges in the first indictment was 28 August 1998. The date of the offences libelled in the first two charges in the second indictment was 28 August 1998 and, in the third charge, 29 August 1998. The reclaimer instructed the respondents to conduct his defence in relation to both of these indictments. A trial proceeded in respect of the first indictment. At the trial, the reclaimer was represented by the third named respondent, Peter Farrell. Prior to the commencement of the trial, a special defence of alibi had been intimated to the Crown by the respondents on the reclaimer's behalf. This special defence stated: " ... that at the time it is alleged the offences referred to in the indictment took place the panel was in Aberdeen" at a specified address in the presence of certain named individuals.

[41] The reclaimer avers that the date specified in the libel in the first indictment was incorrect. The car referred to in the charges had been stolen in the early hours of the morning of 29 August 1998. It is averred that this fact was apparent from the evidence of the Crown witnesses and ought to have been apparent to the respondents in advance of the commencement of the trial and to the solicitor conducting the trial. At the trial, the reclaimer was called to give evidence. He was examined in chief by his solicitor. It is averred that he was asked questions about 28 August 1998. He confirmed in evidence that it was a Friday. He was then asked if he could remember where he had been on the Friday evening. He deponed that he had gone to a night-club in Aberdeen with a number of people named in the special defence. The solicitor suggested to the reclaimer that he had made a mistake about the date when he was in Aberdeen. He suggested to him that the alleged offence had been committed on 28 August 1998. He questioned whether the reclaimer had made a mistake about his dates. The solicitor then insisted that the offence occurred on 28 August 1998. He asked the pursuer to say where he had been on the evening of 27 August 1998 into the early hours of 28 August 1998. The reclaimer gave an account of his activities during that period. The account which he gave was different from the account given in relation to the evening of 28 August 1998 and the early morning of 29 August 1998. In the course of cross-examination, the procurator fiscal depute suggested to the pursuer that he had given the "wrong story" at the commencement of his evidence. The procurator fiscal depute, without objection from the reclaimer's solicitor, challenged his credibility on the basis that he had "forgotten the script". The reclaimer's agent did not re-examine him. In due course the reclaimer was convicted of the offences libelled in the first indictment on 16 December 1998, following which he was sentenced to a period of imprisonment. The reclaimer avers that the conduct of the trial by the solicitor in asking the questions which he did and by failing to object to the suggestions made to the reclaimer by the procurator fiscal depute was such that doubt was cast upon the credibility of the pursuer. The reclaimer avers that, as a result of the events described, he did not receive a fair trial and a miscarriage of justice occurred. On appeal, the reclaimer's conviction was indeed quashed by the High Court of Justiciary on 11 April 2000. The circumstances of the trial and the reasons for the quashing of the conviction are described in the published report of the reclaimer's appeal, which appears at 2000 S.C.C.R. 638. It is averred that the reclaimer was denied a fair opportunity to present his defence.

[42] The reclaimer avers that the respondents were under a duty to take reasonable care in the conduct of his defence to the charges, including his representation at the trial, and to exercise the skill and care to be expected of reasonably competent solicitors. He avers that the defenders failed to conduct the reclaimer's defence according to that standard. He avers that such solicitors would have precognosced the Crown witnesses in advance of the trial. They would have ascertained the precise date and time when the offences were alleged to have been committed. They would have clarified that the offence in respect of which alibi evidence was to be led had taken place in the early hours of 29 August 1998 and led evidence from the reclaimer as to where he had been at that precise time. No reasonably competent solicitor exercising such knowledge, skill and care would have led evidence from him in the manner condescended upon. No such solicitor would have suggested to the pursuer that he had made a mistake when in fact he had not done so. No reasonably competent solicitor exercising such knowledge, skill and care would have put to him that the offence had been committed at a time different from the time it had in fact been committed. No reasonably competent solicitor exercising such knowledge, skill and care would have asked the pursuer to account for where he had been at a different time from the time when the offence had, in fact, been committed. Further, any such solicitor would have objected to suggestions made by the procurator fiscal depute in cross-examination. In any event, he would have re-examined the pursuer with a view to attempting to clear up the confusion inevitably created by the conduct of the case which, in fact, had occurred. The reclaimer avers that in each and all of these duties the defenders failed and by their failure caused loss and damage to him.

[43] In Condescendence 4 of his pleadings, the reclaimer avers:

"As a result of the defenders' fault and negligence the pursuer suffered loss and damage. He did not receive a fair trial. His defence was severely prejudiced. A miscarriage of justice occurred. On 16 December 1998 he was sentenced to a period of imprisonment. He remained in prison until he was released on interim liberation on 16 March 1999. His appeal in respect of the conviction was not finally disposed of until 11 April 2000."

In response to the case made against them, in Answer 3 of their pleadings, the respondents aver that the third named respondent is immune from suit based on his alleged acts and/or omissions in the conduct of said criminal trial.

[44] Both the reclaimer and the respondents have stated a number of preliminary pleas. For present purposes, it is necessary to notice only the respondents' second and third pleas-in-law. The former is to the effect that the action, in so far as based on alleged acts and/or omissions of the said Peter Farrell in the conduct of the criminal trial referred to on Record being irrelevant should be dismissed. The latter is to the effect that the reclaimer's averments of alleged loss and damage being irrelevant and lacking in specification, the action should be dismissed. After a debate on the parties' preliminary pleas, on 27 August 2002, the temporary Lord Ordinary sustained the second plea-in-law for the respondents and dismissed the action. Against that interlocutor the reclaimer has reclaimed to this court. The temporary Lord Ordinary, in paragraph [44] of his Opinion has indicated that, if his view of the law as regards immunity were incorrect, then he would have ordered a proof before answer on the pleadings as they stood, reserving all preliminary pleas apart from the second plea for the defenders. In respect of that part of the temporary Lord Ordinary's decision, the respondents also have enrolled a reclaiming motion.

 

Submissions by junior counsel for the reclaimer

[45] Counsel moved the court to recall the temporary Lord Ordinary's interlocutor of 27 August 2002 and to allow a proof before answer on parties' averments as they stood. It was submitted that the temporary Lord Ordinary had erred in sustaining the respondents' second plea-in-law upon the basis that a solicitor conducting a criminal trial enjoyed immunity from suit in respect of his actions in court. The reclaimer's position was that, in Scotland, there was a distinction between the situation of an advocate, that is to say, a member of the Faculty of Advocates, and that of a solicitor. It was not the reclaimer's contention that Batchelor v Pattison & Mackersy (1876) 3 R. 914 should be overruled. In any event, the court, as presently constituted, was not empowered to do that. A motion that a court of five judges ought to be convened had been refused on 28 January 2003. It was possible, however, that that decision might have to be reconsidered. If there was no distinction between the position of a solicitor and an advocate, the reclaimer's submissions would have implications for the position of the latter. However, the reclaimer's contention was that the court could deal with the position of a solicitor separately from that of an advocate, although, in England, no distinction between them was now recognised in the present context.

[46] The temporary Lord Ordinary had accepted the proposition that he was bound by Batchelor v Pattison & Mackersy, as appeared from paragraph [23] of his Opinion. In that respect he had erred. In the well known passage at page 918, the Lord President had drawn a distinction between the positions of an advocate and a solicitor. There was nothing in that case to show that a solicitor enjoyed the same immunity as an advocate had been taken to enjoy.

[47] That position contrasted with the position in England at the time of the decision of Rondel v Worsley [1969] 1 A.C. 191, in which the House of Lords had held that a barrister was immune from an action for negligence at the suit of a client in respect of his conduct and management of a cause in court and the preliminary work connected therewith. It had also been held that, on the grounds of public interest, a solicitor, while acting as an advocate, had the same immunity from an action for negligence as a barrister did. Of that part of that decision dealing with solicitors, it was submitted that the opinions were obiter. In any event, that decision had now been superseded by Arthur J. S. Hall & Co. v Simons [2002] 1 A.C. 615, a case which would require to be considered in detail. In it , a bench of seven Lords of Appeal in Ordinary had declared that there was no immunity from suit for barristers or solicitors in relation to civil matters. In criminal cases, by a majority of four to three, it had been decided that there was no such immunity. It was evident from that case that public policy could not be regarded as immutable. Thus Rondel v Worsley had to be seen as superseded, although not overruled.

[48] Reverting to the position in Scots law, Batchelor v Pattison & Mackersy had been concerned with the conduct of a case by counsel and the requirement of a solicitor to follow the directions of counsel once a case had been placed in the hands of the latter. It had not dealt directly with the issue of the liability of a solicitor while conducting a case in court without the involvement of counsel. Indeed, at page 918, the Lord President had highlighted the distinction between the position of counsel and solicitor. The reclaimer's submission was that there was no Scottish authority binding on the temporary Lord Ordinary supporting the proposition that a solicitor, acting in court in civil proceedings or a criminal trial, enjoyed the same immunity as an advocate. However, in Rondel v Worsley, the position had been reviewed. At pages 230-232, Lord Reid had dealt with the matter. He had concluded that the public interest required that a solicitor should not be liable to be sued for negligence in carrying out in litigation that which would have been carried out by counsel, if counsel had been engaged in the case. However, that was an English case and what had been said in it concerning solicitors was obiter. In any event, what had been said there had been superseded by the decision in Arthur J. S. Hall & Co. v Simons.

[49] Junior counsel next turned to consider a series of Scottish cases. The first of these was Frame v Campbell (1836) 14 S. 914 which had been concerned with the liability of a solicitor in respect of culpable preparation of a petition on behalf of a client. The solicitor had been held liable. Hart v John Frame & Son (1836) 14 S. 922; (1839) Macl. and R. 595; involved circumstances similar to those which were the subject of Frame v Campbell. The result had been the same. Purves v Landell (1845) 4 Bell's App. 46, a case which had not been cited to the temporary Lord Ordinary, involved circumstances in which a so-called Border Warrant had been obtained where there had been no jurisdiction so to do. The House of Lords had decided that while a solicitor might be liable for the consequences of acts done by him in his professional capacity, in the particular circumstances of the case, insufficient averments of negligence had been made. The significance of the case was that it had concerned a court related document. Ritchie v Macrosty (1854) 16 D. 554, which also had not been cited to the temporary Lord Ordinary, was a case in which an action of damages had been brought by a client against an agent on the allegation of gross negligence and want of skill, or mismanagement from improper motives; it had resulted in a remit being made to the sheriff to enquire into the conduct of the procurator; it had not been dismissed as irrelevant. It had been concerned with circumstances where in-court advocacy was indubitably involved. Immunity had not been pled or affirmed. In Urquhart v Grigor (1857) 19 D. 853, the liability of an agent for alleged neglect of professional duty was in issue. It had been decided that if an agent, in the exercise of his discretion, departed from the usual course of procedure and acted with gross negligence, he would be responsible to the client. In Smith v Grant & Leslie (1858) 20 D. 1077, agents had been found guilty of gross negligence or want of skill in not seeing to the due authentication of certain declarations and to the regularity of proceedings and a warrant of imprisonment of a servant and were liable to relief to their employer. At pages 1080-1083, it was pointed out that the agents' blunder arose from inexcusable and careless inattention to the proceedings going on before their very eyes. These events took place before the agents in open court. There was no suggestion of immunity in that case.

[50] Junior counsel then moved on to consider what had been said by legal writers at the relevant time. He referred first to Begg on Law Agents, 2nd Edition, (1883). The learned author opined at page 90 that, as long as a law agent did not deviate from the lawful and proper instructions of his client, he was entitled to exercise his own discretion in the general conduct of judicial proceedings, subject to the directions of counsel when counsel were employed, without the necessity of communicating with his client at every stage. Only fraud, or gross negligence, or want of skill would render him liable in damages for the loss of an action. But he was not entitled to abandon an action without previously communicating which his client. At page 233, the learned author stated that, by the mere acceptance of employment, a law agent undertook to perform, with due diligence and the requisite skill the business committed to his charge; he was liable to his employers for any loss or damage that they might sustain through the breach of his implied undertaking. At page 247, it was indicated, however, that a law agent who bona fide acted under the direction or by the advice of counsel, was not responsible to his client for any error or miscarriage in judicial proceedings. The learned author, at page 248, indicated that there were no reported cases in which legal liability had been held to attach to law agents for want of professional skill in the conduct of litigation in the Supreme Courts, owing, apparently to the employment of counsel in the Supreme Courts, and to the immunity thereby conferred. On the other hand, there were several reported cases in which law agents practising in the inferior courts, without the assistance of counsel, had been found liable in damages to their clients on the ground of unskilfulness. Reference was also made to Green's Encyclopaedia of the Laws of Scotland, Vol. IX, paragraph 90. No suggestion of immunity attaching to law agents was found there. Junior counsel went on to rely upon Murray v Reilly 1963 S.L.T. (Notes) 49, in which a proof before answer had been allowed in an action at the instance of a client against his former solicitor in respect of the conduct of an action of damages in the sheriff court. It was accepted that the issue of immunity had not been addressed in that case; had it been thought to exist, it would have been. Thus, there was no binding Scottish authority to show the existence of immunity for a solicitor, in particular, in connection with the conduct of a criminal case.

[51] The legal landscape in England as regards this matter had been altered by the decision and observations in Rondel v Worsley. It had been concerned with an action of damages for professional negligence against a barrister. Accordingly, any observations which it contained regarding the position of solicitors were obiter and, in any event, not binding in Scotland. It was accepted, however, that there were dicta in the case dealing with aspects of the position in Scotland. Furthermore, certain Scottish cases had been cited in the House of Lords. At page 227, Lord Reid expressed the opinion that rules in this area of law were based upon considerations of public policy, which was not immutable. In that regard he considered that there was no relevant difference between conditions in England and Scotland. He considered that it was in the public interest to retain the existing immunity of barristers from action by clients for professional negligence, at least so far as it related to their work in conducting litigation. He concluded that the case for immunity of counsel appeared to be so strong that it would be difficult to justify a different rule for solicitors. Thus he reached the view that it was in the public interest that a solicitor should not be liable to be sued for negligence in carrying out work in litigation which would have been carried out by counsel, if counsel had been engaged in the case.

[52] A further stage in the development of the law in England had been reached in Saif Ali v Sidney Mitchell & Co. [1980] A.C. 198, in which the liability of solicitors and a barrister for the conduct of an action of damages for personal injuries was considered. It had been held that the barrister's immunity from suit for negligence in respect of his conduct of litigation on the ground of public policy was an exception to a general rule and applied only in the area to which it extended. The immunity was not confined to what was done in court, but included some pre-trial work, but the protection should not be given any wider application than was absolutely necessary in the interests of the administration of justice. The acts complained of in that case did not come within the rule defining the scope of immunity. The rule was expressed that the same immunity attached to a solicitor acting as an advocate in court as attached to a barrister.

[53] The position of advocates, solicitor advocates and solicitors in relation to clients had been the subject of some consideration in Anderson v H.M. Advocate 1996 J.C. 29. Lord Justice General Hope opined that the position of a solicitor advocate was indistinguishable in regard to the principle of independence as affects the performance of his duty from the position of an advocate. He also recognised that, in Rondel v Worsley, a solicitor, when acting as his client's advocate, had been placed on the same footing as counsel. It was submitted that these observations were at odds with the earlier Scottish authorities, which had not been cited in that case. In any event, Anderson v H.M. Advocate had been concerned with the issue of whether the conduct of a legal adviser could be founded upon as a ground of appeal in showing that a miscarriage of justice had occurred. Furthermore, to the extent that Lord Justice General Hope had founded upon dicta in Rondel v Worsley, his observations could no longer be seen as sound.

[54] Junior counsel went on to consider in detail the implications of Arthur J. S. Hall & Co. v Simons. It was plain that, as a result of the expression of views by the majority in the case, a barrister and a solicitor in England would now understand that they possessed no immunity from suit at all. It was evident from the speeches in the case that it had been considered that the law of England provided adequate protection for barristers against unmeritorious litigation; accordingly, public policy did not require that the immunity which they had formerly enjoyed should survive. In the present case, the temporary Lord Ordinary had not analysed the position in Scotland in this regard. The reclaimer submitted that the law of Scotland likewise provided adequate protection for members of the legal profession against unmeritorious litigation. Accordingly, in Scotland also, there was no public policy justification for the continuance of immunity.

[55] In that connection reference was made to Clarke v Fennoscandia Limited & Others (2 December 2004; unreported). At paragraphs [17], [18], [40] and [44] views were expressed to the effect that this court possessed an inherent power similar to that of the High Court in England to strike out an action that amounted to an abuse of process. These observations were supportive of the reclaimer's position. However, it was recognised that there was no Scottish authority in which this power to strike out an action had actually been exercised.

[56] Another protection which would exist for an advocate or solicitor advocate against unmeritorious litigation would be that afforded by the legal aid system. It would be very likely that any claimant would require legal aid to proceed. To obtain it, he would require to demonstrate probabilis causa litigandi; in particular, that he could satisfy the requirements for professional negligence set forth in Hunter v Hanley 1955 S.C. 200. There were no obvious differences between the law of Scotland and the law of England to justify a different position in this context in the two jurisdictions. The temporary Lord Ordinary had misdirected himself in saying that he was bound by the decision in Batchelor v Pattison & Mackersy. The ratio of that case had no application to the circumstances of the present case.

[57] Junior counsel next proceeded to consider in greater detail why public policy in Scotland did not require the immunity founded upon by the respondents to be recognised. He began by making two points. First, public policy could not be seen as immutable. What might be required by public policy could change with changes in circumstances and conditions. In that connection, reliance was placed on the observations of Lord Reid in Rondel v Worsley at page 227 and of Lord Morris of Borth-y-Gest at page 243. There was a continuing recognition of that feature of public policy, as was to be seen from observations in Arthur J. S. Hall & Co. v Simons by Lord Hoffmann at page 688 and 704, of Lord Hope of Craighead, at page 709 and of Lord Hobhouse of Woodborough at page 736. Secondly, the concept of immunity was to be viewed as an exception to a fundamental right to damages. That was how it was viewed by Lord Pearson in Rondel v Worsley at page 289, by Lord Diplock in Saif Ali v Sidney Mitchell & Co., at page 218 and, in Arthur J. S. Hall & Co v Simons, by Lord Hoffmann at page 688 and Lord Hope of Craighead at page 610.

[58] In assessing whether the requirements of public policy had changed so far as Scotland was concerned since Rondel v Worsley, it was necessary to examine Arthur J. S. Hall & Co v Simons in more detail. In the speeches of Lord Steyn, Lord Hobhouse of Woodborough and Lord Hope of Craighead, four main justifications for immunity had been examined. These were: (1) the cab-rank rule; (2) the witness analogy; (3) the danger of re-litigation; and (4) a duty owed to the court as well as to the client, the performance of which might be hampered by a fear of litigation. This approach was evident from the speech of Lord Steyn at page 678 to 681. In that passage, Lord Steyn considered each of these four considerations and held that none of them justified the continued immunity of barristers in the public interest. What was important was to compare the situation as dealt with by the House of Lords with that in Scotland. In Moore v Secretary of State for Scotland 1985 S.L.T. 38, the Court of Session had held that it was incompetent for that Court to review an appellant's criminal conviction. However, junior counsel recognised that section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 recognised the possibility of an indirect challenge to a criminal conviction in civil proceedings, which might include a claim for damages. Reliance was also placed upon Montgomery v H.M. Advocate 2000 S.C.C.R. 1044 at page 1091. Junior counsel accepted that, in Lord Steyn's treatment of the issue of re-litigation, he had placed emphasis on Hunter v The Chief Constable of the West Midlands Police [1982] A.C. 529. In that case, Lord Diplock at page 536 had considered that any court of justice possessed an inherent power to prevent misuse of its procedure. At this point, junior counsel referred to Acton v Graham Pearce & Co. [1997] 3 All E.R. 909, in order to contrast the position of a person who sued following upon the overturning of his conviction, as opposed to one who sought to do so when that had not occurred.

[59] In any event, it was evident, particularly from the observations of Lord Steyn at page 679-680 in Arthur J. S. Hall & Co. v Simons, that, in the English system, there was sufficient protection against unmeritorious litigation without that afforded by a barrister's immunity. Junior counsel recognised that the question was whether there was similar protection in Scotland. In that connection he relied upon the Opinion of Lord Gill, as he then was, in Shetland Sea Farms Ltd. v Assuranceforeningen Skuld & Others (4th July 2001; unreported). At paragraph [138] and following, he considered whether the Court of Session had an inherent power to dismiss a claim where its pursuance would be an abuse of process. His conclusion was that there was such a power, although he decided that the instant case was not one in which it should be exercised. It was accepted that all of the authorities on which he relied on reaching his view, save one, were English. That one case was Levison v The Jewish Chronicle Ltd. 1924 SL.T. 755, in which Lord Ashmore had granted a decree of absolvitor with expenses in circumstances in which he held that the pursuer had been guilty of conduct amounting to contempt of court.

[60] Reverting to Arthur J. S. Hall & Co. v Simons, junior counsel drew attention to the fourth of the factors considered by Lord Steyn at page 680, that is to say, the duty of a barrister or advocate to the court. He explained that the position in Australia and New Zealand was that the issue of a barrister's immunity was under review. He submitted that the duty of the barrister to the court did not necessarily involve the need for immunity from suit. In England, for some time, barristers had been exposed to the risk of being made liable in certain costs under the so-called wasted cost order system. There was no evidence to show that the administration of justice had suffered in consequence of the imposition upon them of that limited liability.

[61] Junior counsel next drew attention to the speech of Lord Browne-Wilkinson at page 684; he was one of the majority of four for abolition of immunity in criminal matters. It was recognised that his approach to the undesirability of repeated litigation was heavily dependent upon the power of the English courts to strike out a claim as an abuse of process, as exemplified in Hunter v Chief Constable of the West Midlands Police. Junior counsel went on to draw attention to the reasoning of Lord Hoffmann at page 685 and following, whose reasoning he commended. Thereafter he examined the speech of Lord Hope of Craighead, who was one of the unanimous bench in relation to the issue of immunity in civil cases, but who was in the minority of three in relation to immunity in criminal proceedings. It was accepted that Lord Hope of Craighead considered that the power of the court to strike out a civil action on the ground that it was an abuse of process had not yet been recognised in Scotland, as appeared from page 715.

[62] Lord Hope of Craighead had maintained a distinction between the situation in civil proceedings and that in criminal proceedings. However, junior counsel submitted that it was difficult to accept a valid distinction. In each case, the advocate had a duty to the court. The perceived threat to the performance of the advocate's duty to the court in the event of immunity not being recognised, was illusory. The passage in the speech of Lord Hope between pages 717 and 718 was alarmist. None of Lord Hope's reasoning justified the conclusion that the immunity should be recognised as applying to the position of solicitors acting as advocates in Scotland.

[63] Junior counsel went on to consider the speeches of Lord Hutton and Lord Hobhouse of Woodborough. One of the problems created by the position of the minority of Arthur J. S. Hall & Co. v Simons was that, if there were to be an immunity, it would be necessary for its limits to be defined. That was not a straightforward matter. Commenting upon the speeches of the minority, it was submitted that there was little unanimity among them as to the reasons why they considered that, in criminal matters, immunity ought to be preserved. That was a matter of some importance.

[64] One particular aspect of the problem remained; there was no unanimity in relation to the extent of any immunity which might be recognised as existing. This matter was dealt with in the speech of Lord Keith of Kinkel in Saif Ali v Sidney Mitchell & Co. at pages 236 to 237. He rejected the formulation of intimate connection favoured in Rees v Sinclair [1974] 1 N.Z.L.R. 180 and favoured a wider immunity extending to all matters in connection with the conduct of litigation.

[65] At this point in his submissions, junior counsel focussed attention upon the approach of the temporary Lord Ordinary at paragraph [21] of his Opinion and following. In this connection, he submitted that Rondel v Worsley was not binding on the temporary Lord Ordinary. He had relied upon the observations of Lord Hope at page 35 in Anderson v H.M. Advocate, which were obiter. The truth of the matter was that solicitors had never enjoyed immunity in Scotland. Lord Hope's reliance upon Rondel v Worsley was misconceived. Furthermore, the temporary Lord Ordinary's reliance upon Batchelor v Pattison & Mackersy, in paragraph [23] of his Opinion was unsound. In paragraph [22], the temporary Lord Ordinary had stated that the decision in Arthur J. S. Hall & Co. v Simons had been subsequent to the date of the trial in the present case. The decision had not expressly overruled Rondel v Worsley, merely holding that, since public policy considerations had changed in England, Rondel v Worsley no longer applied. Thus Rondel v Worsley had remained good law until the decision in Arthur J. S. Hall & Co. v Simons had been pronounced. On this aspect of the case junior counsel submitted that the position of solicitors in Scotland had never been governed by English law. Looking purely at Scots law, there never had been any immunity. The reliance on Rondel v Worsley was misplaced. He went on to rely on Patel v United Kingdom E.C.H.R. 19 February 2002; unreported. On the basis of that case, it was submitted that Arthur J. S. Hall & Co. v Simons was concerned with a procedural bar. When that had been removed, a claim arising from events prior to its removal might be pursued. Accordingly the temporary Lord Ordinary's approach at paragraph [22] of his Opinion was unsound; he had regarded what he was considering to be a matter of substantive law, rather than procedural bar.

[66] Junior counsel turned next to the human rights aspect of the case. It was submitted that the temporary Lord Ordinary had erred in holding that the immunity that he held to exist was not inconsistent with Article 6 of the European Convention on Human Rights and Fundamental Freedoms. His approach appeared to depend upon the view that the immunity was a provision of substantive law, as opposed to a procedural bar. Article 6(1) of the Convention guaranteed the right of access to a court to an applicant who had at least on arguable grounds a claim concerning a civil right or obligation. It had to be recognised however that the right of access to the court secured by Article 6(1) was not absolute, but might be subject to limitations. A limitation would be compatible with Article 6(1) if it pursued a legitimate aim and was proportionate. In this connection reference was made to Human Rights Law and Practice, 2nd Edition, Lester & Pannick.

[67] In the whole circumstances, the reclaimer's motion was for the recall of the interlocutor of the temporary Lord Ordinary of 27 August 2002 and the allowance of a proof before answer.


Submissions by junior counsel for the respondents

[68] Junior counsel for the respondents moved the court to refuse the reclaiming motion. The temporary Lord Ordinary had not erred in law in holding that the third named respondent was immune from liability in negligence while acting as an advocate in the criminal trial of the reclaimer.

[69] The respondents would seek to show, first, that, at the time of Bankton at least, it was the function of advocacy that attracted immunity, rather than the identity of the individual performing it. Secondly, it would be demonstrated that the cases relied on by the reclaimer for the contention that solicitors were not immune did not relate to solicitors acting as advocates, exercising advocacy functions; in any event, they did not show a clear line of authority. Thirdly, there was a rationale underlying the immunity contended for, based on the public interest in the administration of justice; that had been identified in Rondel v Worsley. Fourthly, having regard to the rationale for immunity common to both the Scottish and English legal systems, namely the public interest in the administration of justice, there was no sound basis in law for immunity not applying to solicitors acting as advocates, whether they were solicitor advocates or solicitors acting in the lower courts. Further, since the reclaimer was contending that, if there were an immunity for solicitors acting as advocates, it should be ended, the view of the court was critical. If the case were to go further, this court's view on the matter of public policy in Scotland would be critical. It would be contended that there were strong public policy considerations in favour of immunity. Arthur J. S. Hall and Co. v Simons would be examined in that context. Lastly, it would be contended that, even if the court decided against the respondents' position as outlined, in any event, the action should be dismissed because there were no relevant averments of loss said to have been caused by the alleged negligence.

[70] Junior counsel began her submissions by quoting extensively from, Legal History of Scotland, Walker, Volumes 3 and 4, with a view to showing the origins of the designations of members of the Scottish legal profession. She contended that, for many years, there had been no clear distinction between law agents and advocates. It was only with the enactment of the Solicitors (Scotland) Act 1933 that the word solicitor had come into common use as a designation for a law agent. In Bankton's Institute of the Laws of Scotland, Book IV, Title III, Section 7, the position of members of the Faculty of Advocates was considered. In section 12 their duties were considered. In section 24 of the work it was stated that lawyers were "liable to the client's damage", but if through his mistake a client was injured, he had no remedy against the advocate.

[71] In the Stair Memorial Encyclopaedia of the Laws of Scotland, Volume 13, at paragraph 1380, the liability of counsel was considered, in an article written by Lord Rodger of Earlsferry. The view was expressed that, while counsel owed a duty of care to the client, advocates were entitled to some immunity from actions of professional negligence. That immunity was now properly to be regarded as an exception from the basic principle that advocates owed a duty of care to their clients; the exception was recognised only to the extent that it was absolutely necessary in the interests of the administration of justice. It was submitted that the examination of the history of the legal profession showed that there was originally no divide between members of the Faculty of Advocates and others doing like work. In Rondel v Worsley, Lord Reid considered that those undertaking the function of advocacy had the privilege of the immunity. On a proper reading of Bankton, the immunity was not restricted to members of the Faculty of Advocates but was available to others undertaking like functions.

[72] Junior counsel next went on to consider the cases cited by the reclaimer, to show that solicitors were liable for negligence in advocacy. The first of those cases was Frame v Campbell. It was submitted that that case had not been concerned with what might be called "in-court advocacy". The fault of the agent lay in the preparation of a petition prior to any court hearing. Accordingly the case did not support the reclaimer's submissions. The position in Hart v John Frame & Son was the same. No advocacy function was involved. Turning to Urquhart v Grigor, it had been concerned with an alleged failure to intimate an interlocutor allowing proof to the clients. It was submitted that the case had not involved the advocacy function; rather administrative responsibilities. In Murray v Reilly no immunity had been pleaded by the defender and accordingly the issue of immunity had not been raised. The defender had agreed to a discharge of a diet or proof. It was contended that the decision had been taken out of court. Thus, the case was not supportive of the reclaimer's submissions. Smith v Grant & Leslie was a case involving a failure to see that warrants were in proper form. It was contended that that was an administrative function that had been badly performed. It did not support the appellant's contentions. Ritchie v Macrosty (1854) 16 D. 554 was of a different nature. Many things were complained of, as could be seen from the record which was available. Some of these matters involved advocacy. However, immunity had not been pleaded. The foundation of the action was negligence and "improper motives". This case did not support the appellant's position. Purves v Landell was a case involving advice to obtain and the obtaining of a so-called Border Warrant. It was not one concerned with advocacy. Immunity was not raised as an issue in it. Accordingly, it did not support the reclaimer's contentions. There were observations in the House of Lords by Lord Campbell at page 61which tended to suggest that there was a distinction between the position of an advocate or barrister and that of an attorney or procurator, against whom, it was said, an action could be maintained. It was submitted that those observations were obiter and without support, or too wide. His Lordship said nothing about the position of solicitors undertaking the advocacy function. Thus, even those observations did not support the position of the reclaimer. In summary, junior counsel submitted that, on the basis of the foregoing cases, there was no indication of a liability such as contended for by the reclaimer. However, there was recognition that those performing the function of advocacy should be protected for reasons of public policy.

[73] Junior counsel went on to embark upon a detailed consideration of the decision in Rondel v Worsley. What was evident from that case was that the immunity affirmed was based, not upon the inability of a barrister to sue for fees, but upon the basis that it was in accordance with public policy that the immunity should exist. The respondents' position was that they sought to show that the public policy considerations underlying the immunity of the barrister applied equally to a solicitor undertaking the advocacy function. Particular reference was made to the observations of Lord Morris of Borth-y-Gest at page 243. The observations of Lord Pearce, at page 266 and 267, were to a similar effect. It was the view of Lord Reid at page 227 that conditions in England and Scotland did not differ relevantly. Lord Reid's conclusion at page 232 was that the public interest did require that a solicitor should not be liable to be sued for negligence in carrying out work in litigation which would have been carried out by counsel, if counsel had been engaged in the case. To a limited extent, Lord Upjohn at page 285 took a similar view.

[74] Junior counsel next proceeded to consider certain other cases, the first of which was Stokes v Trumper (1855) 2 K.J. 232 (page 766). It was concerned with the implementation of a solicitor's contract with his client. There had been negligence in the conduct of legal proceedings, with the result that the solicitor was disentitled to recover any portion of his bill of costs. The decision did not bear directly upon the issues in the present case. Giannarelli & Others v Wraith & Others, (1988) 165 C.L.R. 543, an Australian case, showed that the same immunity attached to a solicitor, acting as an advocate in court, as to a barrister. Summarising her position, junior counsel submitted that there was no material to show that historically solicitors in Scotland had been liable for in-court negligence. Following Rondel v Worsley, it was made clear that the immunity available attached to the function of advocacy. Coming to more recent cases, in Arthur J. S. Hall & Co v Simons, it had been accepted that Rondel v Worsley had not been wrongly decided. So, unless Lord Reid had been wrong to equiparate the position in Scotland and England as regards public policy considerations, it was inescapable that the law of Scotland furnished immunity in relation to the function of advocacy, not on the basis of the categorisation of the individual practising it. That was consistent with what had been said by Lord Hope in Anderson v H.M. Advocate at page 35. It was of interest to observe the contents of the consultation paper on the Legal Profession in Scotland, of March 1989, in which, at paragraph 5.24, it was considered that an advocate and a solicitor enjoyed immunity from suit in relation to alleged negligence in the conduct of a case in court. Reference was also made to paragraph 4.6.

[75] Turning to the Opinion of the temporary Lord Ordinary, it was submitted that, in all the circumstances, he had not erred in law in holding that the respondents were entitled to immunity from suit. In paragraph [23] of the Opinion, he considered that he was bound by Batchelor v Pattison & Mackersy. It was submitted that that part of his Opinion was not pertinent. It did not undermine his decision.

[76] Junior counsel went on to consider the reclaimer's criticism of the temporary Lord Ordinary's decision to the effect that public policy in Scotland did not require the abandonment of the core immunity recognised in Rondel v Worsley. In this connection, the respondents' submission was that the effect of the decision in Arthur J. S. Hall & Co v Simons was confined to England, on account of the protective mechanisms available there, which were not available in Scotland. That case had not over-ruled Rondel v Worsley. So, the question arose of the function of this Court in the situation outlined. It was quite clear that Rondel v Worsley had been regarded as good law in Scotland. In these circumstances, having regard to the fact that the present case might go to the House of Lords, it was important for this Court to pronounce upon a public policy considerations as they operated in Scotland. While this Court was not bound by Rondel v Worsley, if Lord Reid had been correct in saying that the positions in Scotland and England did not differ, and proceeding on the basis that Rondel v Worsley was not wrongly decided, that case represented the law of Scotland. Apart from that, if the subject of this litigation had been an advocate, Batchelor v Pattison & Mackersy would have ruled. It was submitted that it did because immunity was function orientated.

[77] Junior counsel then entered upon a detailed examination of the reasoning of the majority in Arthur J. S. Hall & Co. v Simons, with a view to showing that that case had not altered the law of Scotland. The reasoning of the minority amounted to a justification for Scots law as she contended that it was. It was quite plain from the speeches in Arthur J. S. Hall & Co. v Simons that Rondel v Worsley was not regarded as having been wrongly decided as appeared from Lord Steyn at pages 682-683, Lord Hoffmann at pages 692 and 704, Lord Hope of Craighead at page 710, Lord Hutton at page 728 and Lord Hobhouse of Woodborough at pages 736-737. Rondel v Worsley had been widely followed. It had been affirmed in Saif Ali v Sidney Mitchell & Co. It had been adopted in New Zealand in Rees v Sinclair. It had been adopted in Australia Giannarelli & Others v Wraith & Others. Looking at the speeches of the majority in Arthur J. S. Hall & Co. v Simons, it was difficult to discern the changes in society and in the law which were relied upon as justifying an altered view of public policy. The reclaimer had not identified any changes in society or law in Scotland which would justify a departure from Rondel v Worsley.

[78] Something had been made in the House of Lords in Arthur J. S. Hall & Co. v Simons concerning the absence of deleterious effects resulting from the making of wasted costs orders in England. However, it was apparent from Medcalfe v Mardell & Others [2003] 1 A.C. 120 that the court in England had adopted a very cautious approach to the making of such orders. Accordingly, it could not have been expected to have had a major impact upon legal practice.

[79] It was evident from the speeches of the majority in Arthur J. S. Hall & Co. v Simons that the power of the English Court to strike out unmeritorious claims as an abuse of process had played a material part in their reasoning, as was evident from the observations of Lord Browne-Wilkinson at pages 684-685. It was instructive to examine more closely the position in England regarding that. Rule 3.4 of the Civil Procedure Rules 1998, Part 3, authorised such action. That rule provided that the court could strike out a statement of a case, if it appeared to the court that that statement did not disclose reasonable grounds for bringing or defending the claim; that the statement of case was an abuse of the court's process, or was otherwise likely to obstruct the just disposal of the proceedings; or that there had been a failure to comply with a rule, practice direction or court order.

[80] Rule 24.2 of the same rules set forth grounds upon which the Court in England might give summary judgment. It was quite plain that these rules afforded the Court substantially greater power to limit or eliminate abuse of process than anything that was available to the Court in Scotland. That was an important reason why the approach of the majority in Arthur  J. S. Hall & Co v Simons should be rejected in Scotland. In the same connection junior counsel made reference to Mills v Cooper [1967] 2 Q.B. 459 and Northwest Water Ltd v Binnie & Partners [1990] 3 All.E.R. 547 which related to the English doctrine of issue estoppel. Reference was also made to Calla &c v Midland Bank Trust Co Ltd [1999] E.W.C.A. Civ 1917; also to an article in 1985 S.L.T.(News) 133, in which it was concluded that Scots law had no equivalent to issue estoppel.

[81] In connection with the possible control of abuse of process in Scots law, junior counsel drew attention to Shetland Sea Farms Ltd v Assuranceforeningen Skuld and Others and Clarke v Fennoscandia Ltd &c. These cases proceeded upon the basis of English authority. They were slender authority for the view that there was a power to strike out abusive proceedings in Scotland. Only one Scottish case, Levison v The Jewish Chronicle Ltd could be seen as such authority. However, that case was decided very much on its own facts and did not support any general doctrine. In Clarke v Fennoscandia Ltd &c the observations at paragraphs [18], [40] and [44] were obiter. As Lord Hope had observed in Arthur J. S. Hall & Co v Simons, in Scotland there was currently no inherent power to strike out proceedings.

[82] Junior counsel then proceeded to consider in detail the speeches of the minority in Arthur J. S. Hall & Co v Simons. Lord Hope of Craighead at pages 714-715 made no distinction between barristers and advocates and solicitors acting as advocates. He approached the issue of immunity in relation to function. Further the existence of the principle in Hunter v Chief Constable of the West Midlands Police did not persuade Lord Hope of Craighead that the core immunity ought to be discarded. Since there was no such principle in Scotland, there was even less reason to do so. It was plain that the minority were concerned with the maintenance of the integrity of the criminal justice system and the criminal appellate system. The respondents invited the Court to follow the minority, more particularly because, in Scotland, there was no mechanism for striking out unmeritorious claims. On the whole matter, it was submitted that no good reason had been demonstrated to justify any change in the law of Scotland regarding the existing immunity for a solicitor acting as an advocate.

[83] Since the decision in Arthur J. S. Hall & Co v Simons, courts in other common law jurisdictions had not followed it. In particular, the High Court of Australia had maintained the immunity in both civil and criminal cases, as appeared from D'Orta-Ekenaike v Victoria Legal Aid [2005] H.C.A. 12 (10 March 2005). The reasoning in that case was to be commended. It was considered that the central justification for the advocate's immunity was the principle that controversies, once resolved, were not to be re-opened except in a few narrowly defined circumstances. In paragraphs 58-60 of the decision it was said that, since the decision in Arthur J. S. Hall & Co v Simons rested upon judicial perception of social and other changes said to affect the administration of justice in England and Wales, there could be no automatic transposition of the arguments found persuasive there to the Australian judicial system. The same could be said in relation to the Scottish judicial system, particularly since that system did not share with the English system arrangements to handle abuse of process. In Lai v Chamberlains (C.A.N.Z.) 8 March 2005, the Court of Appeal of New Zealand had decided that immunity should be discarded in civil proceedings, but not otherwise.

[84] Junior counsel turned next to deal with the issues raised in relation to Article 6(1), of the European Convention on Human Rights and Fundamental Freedoms, focused in ground of appeal 3. It was submitted that it had to be understood that Article 6(1) of the Convention extended only to contestations; the article did not guarantee any particular content for civil rights. The reclaimer's position appeared to be that, first, there never was any immunity for a solicitor acting as an advocate; if it were the case that there was such immunity, that was wrong and the law ought to be changed. The respondents submitted that the reclaimer's approach was misconceived. There was no Article 6 issue in relation to this case. The reclaimer had sought to characterise the immunity, if it existed, as a procedural bar, which had to be justified on clear public policy grounds. There was no such concept as a duty of care in the abstract. Here, a duty of care had been asserted, but the duty was unreal, since it was not recognised by law. This situation was totally different from that found in cases of diplomatic immunity, where offences or wrongs, recognised as such, were committed, but diplomatic immunity was pleaded as a defence. In this connection reference was made to Walker, Delict pages 173, 174, 179 and 181. Reference was also made to Z &c v The United Kingdom (2002) 34 E.H.R.R. 3, in particular paragraphs 44, 46 and 64. Care had to be taken concerning the use of the word "immunity". It might connote some arrangement under which a recognised duty could not be enforced. Alternatively it might indicate that there was, in reality, no enforceable duty. As appeared from paragraph H21, it was not enough to bring Article 6(1) into play that the non-existence of a cause of action under domestic law might be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm. In any event, if, contrary to all other submissions, the inability to sue an advocate was properly to be construed as a procedural bar, nevertheless the rule in question was proportionate to the public policy aims to be achieved in Scotland; in particular, confidence in the criminal justice system. In this connection reference was made to the speeches of Lord Hope of Craighead in Arthur J. S. Hall & Co v Simons at pages 711 and 720 and of Lord Hutton at page 734. Even if the inability to sue on the basis of in-court negligence were to be seen as a procedural bar, the fact was that the reclaimer had not been denied access to the Court. In this connection reliance was placed upon Ashingdane v United Kingdom 1985 7 E.H.R.R. 528. There had been no breach of Article 6(1) here.

[85] Junior counsel then moved on to make submissions on the cross appeal. This was based upon the temporary Lord Ordinary's decision to sustain the respondents' plea-in-law 2 only. The other preliminary pleas of the respondents, 1 and 3, had been reserved and a proof before answer would have been allowed, had the temporary Lord Ordinary not taken the view that he did in relation to plea-in-law 2. It was submitted that his approach to these matters was erroneous. The respondents' propositions were set forth in the cross grounds of appeal. In particular, it was contended that the temporary Lord Ordinary had erred in law in holding that the reclaimer had averred a relevant cause of action against the respondents, having noted that nowhere in his pleadings did he assert that he would have been acquitted, but for the alleged negligence. In the absence of any such averment, the averments of loss in Condescendence 4 were irrelevant. Where the reclaimer's loss and damage could not be measured by reference to the fact or consequence of his conviction, there being no offer to proof that, but for the alleged negligence, the pursuer would not have been convicted, the temporary Lord Ordinary had erred in holding that the miscarriage of justice founded upon by the appellant could itself give rise to any ascertainable measure of loss or damage. In this connection, junior counsel drew attention to the averments in Condescendence 4, already narrated.

[86] The decision of the Appeal Court in the reclaimer's appeal was reported in 2000 S.C.C.R. 638. It was apparent from that report that the miscarriage of justice consisted in an advocacy blunder in court. The important question which had to be asked was what would have been different had the reclaimer's advocate not blundered as he did. In order to demonstrate any loss, the reclaimer would require to offer to prove that, but for that blunder, he would have been acquitted. However, no such averment had been made. In short, there were no relevant averments of loss sustained in consequence of the alleged negligence. It was quite clear that wrongful imprisonment, deprivation of liberty without justification, was an actionable wrong, as appeared from Walker on Delict page 691. However, the problem for the reclaimer was that it was not averred that that had occurred here in consequence of the alleged negligence. The matter had been dealt with by the temporary Lord Ordinary in his Opinion in paragraphs [38]-[43]. In that passage, the temporary Lord Ordinary appeared to have focused upon the undoubted occurrence of a miscarriage of justice, which he considered had been partly or wholly caused by the defective advocacy. The difficulty with that approach was that the expression "miscarriage of justice" was not a term of art and had no settled meaning, as appeared from Regina (Mullen) v Secretary of State for the Home Department [2004] 2 W.L.R. 1140 at page 1145. Developing her argument, junior counsel relied upon Saif Ali v Sidney Mitchell & Co at pages 222-223, where the issue for a Court in the context of a claim such as the present was said to be whether it was the negligent act or omission of the barrister in the conduct of his client's case that caused the wrong decision by the Court. The same emphasis on the outcome of proceedings was to be found in the observations of Lord Steyn in Arthur J. S. Hall & Co v Simons at page 682 and of Lord Hoffman at page 687. The need to show a different outcome in order to prove loss was highlighted in paragraphs 143 and 162 in D'Orta-Ekenaike v Victoria Legal Aid. One of the difficulties in the situation was, of course, that it would be impossible to replicate the circumstances of the original trial.

[87] In present context, it was necessary to consider the relevance of cases concerning civil claims for damages against solicitors in the context of civil litigation. In Yeoman v Ferries 1967 S.C. 255 the Court had held that the claimant was entitled to an award of damages for the loss of a chance to make a claim, caused by his solicitors' negligence. The emphasis was not on the outcome of proceedings that might have been brought, but for their failure, but upon the value attached to the existence of a claim. That case had been followed in Kyle v P. & J. Stormonth Darling 1993 S.C. 57, where it had been held that the loss of an opportunity to advance a claim in Court, as opposed to the loss of the claim itself, had a tangible value capable of valuation. It was submitted that that approach could not be replicated in the context of criminal proceedings. However, it had to be recognised that in certain cases a similar approach was followed in relation to criminal proceedings affected by negligence. Such a case was Acton v Graham Pearce & Co [1997] 3 All.E.R. 909. In that case the loss of a chance of being acquitted was regarded as capable of assessment. The Court had followed Allied Maples Group v Simmons & Simmons [1995] 1 W.L.R. 1062. That case was discussed in Jackson & Powell on Professional Negligence (2002) paragraph 10.258. It was submitted that Allied Maples Group v Simmons & Simmons was a very singular case indeed. The scope of the first proof had been uncertain. What happened after it was that the new claim for damages had had to be assessed on the basis of a percentage of what would have been awarded had there been success in the first instance.

[88] Whatever light these authorities might cast upon the opportunity of making a claim on the basis of a loss of a chance, the fact of the matter here was that the reclaimer did not make a claim on that basis in his averments. The averments of damage were exclusively focused on the occurrence of a miscarriage of justice. In the whole circumstances the cross-appeal should be allowed and the respondents' pleas-in-law 1 and 3 sustained.

 

Submissions of senior counsel for the reclaimer

[89] Senior counsel began by adopting the submissions made on the reclaimer's behalf by junior counsel. His motion to the Court was that the interlocutor of the temporary Lord Ordinary should be recalled and a proof before answer allowed, under exclusion of the averments of immunity from suit to be found at the end of Answer 3. Plea-in-law 2 of the respondents should be repelled. He went on to point out that the reclaimer's conviction had in fact been set aside by the Criminal Appeal Court, so there was no problem of a civil court reviewing a conviction in this case. It was accepted that the case did not necessarily involve the general problem of immunity, since the Court did not have to consider the position of a member of the Faculty of Advocates. As regards the case of Arthur J. S. Hall & Co v Simons, it had to be accepted that all the material relevant to the present case was obiter; but, it was submitted, that that material reflected the law as it now was. In any event, it was submitted that there was no authoritative Scottish decision establishing that a solicitor enjoyed any immunity in respect of the management and conduct of civil or criminal proceedings. In the past, a limited immunity had been recognised where the solicitor had instructed counsel to conduct the cause and was acting upon the instructions of counsel, as appeared from Batchelor v Pattison & Mackersy. Ritchie v Macrosty was one of a few Scottish cases which involved, in part, advocacy in court. If the respondents' position was sound, it was very surprising that there had been no plea of immunity in that case. That there had not been could be seen from pages 32 and 33 of the record in the action, now available. It was notable that the defender in that case had been represented by Dean of Faculty Inglis. It was also notable that, in Frame v Campbell and Hart v Frame, there was no trace of the development of the so-called advocacy function test. Furthermore, in Batchelor v Patterson & Mackersy, Lord President Inglis had made certain statements concerning the immunity of members of the Faculty of Advocates, but there were no similar statements applicable to solicitors conducting the advocacy function. It was submitted that certain of the cases relied upon by junior counsel for the respondents did not support their position. In particular Smith v Grant & Leslie was such a case. Those proceedings had been treated as proceedings in court, yet no issue of immunity was even raised.

[90] Furthermore legal writers did not recognise any general immunity applicable to solicitors performing the advocacy function; only the limited immunity available where counsel had been engaged was mentioned. In that connection reference was made to passages cited from Begg on Law Agents and Green's Encyclopaedia of the Laws of Scotland Vol. 9. Reference was also made to Glegg on the Law of Reparation in Scotland 4th Edition at pages 466-468 and 477-478. The position of law agents was contrasted with that of counsel, as regards immunity. It was noteworthy that, at the time of the creation of solicitor advocates, they were not given the same immunity as was possessed by advocates. However, in Rondel v Worsley, immunity had been extended to solicitors acting as advocates. Later in Arthur J. S. Hall & Co v Simons the House of Lords decided that neither barrister nor solicitor acting as an advocate had any immunity from claims for negligence. That case now represented the law of England and applied to negligent conduct that pre-dated the decision, as appeared from Moy v Pettman Smith &c [2005] 1 All.E.R. 903. Although the actings which were the basis of claim in Moy v Pettman Smith &c pre-dated the decision in Arthur J. S. Hall & Co v Simons, that decision was in fact applied to those circumstances.

[91] Between 1967 and 2000, neither the issue of immunity in the case of solicitors, nor of continuing immunity in the case of advocates, determined by reference to existing authority and to considerations of public policy, had been authoritatively considered in any Scottish case, including Anderson v HM Advocate, which, it was contended, was concerned with a completely different issue. Against that background the respondents were now inviting the Court to turn the clock back and to hold that the position in Scotland was governed by Rondel v Worsley.

[92] Senior counsel went on to consider Arthur J. S. Hall & Co v Simons in greater detail. He pointed out that the decision rested on considerations of public policy, which were not related to English law alone. No material had been produced by the respondents to show that there was a clear justification for immunity. The question involved had divided judges. From that circumstance one could infer that there was no general consensus that a person performing the advocacy function should have immunity in the public interest. It was contended that there was a trend towards no immunity being recognised, which was the position in Canada and the United States of America; also in the European Union and England and Wales. Some curtailment of immunity had been made in New Zealand, although it was recognised that in Australia the Court had declined to follow Arthur J. S. Hall & Co v Simons. In those systems of law which had considered the issue, the same considerations were examined as were taken into account in Arthur J. S. Hall & Co v Simons. That showed that that case was not dependent on peculiarly English considerations. Immunity was essentially a derogation from a general principle of law that a professional person should be answerable for their own negligence. It could be said that legal systems did perform satisfactorily without immunity; accordingly it could not be argued that there was a clear justification for it.

[93] There were a number of considerations supportive of the reclaimer's position. First, an advocate could not be liable in negligence where the actings concerned were done in accordance with an acknowledged duty to the Court. Secondly, if the course of action pursued by the advocate was reasonable and defensible, plainly there would be no liability. Thirdly, it was generally acknowledged that mere errors of judgement would not be enough to ground liability. There could be liability only if the recognised test of professional negligence was passed. Fourthly, in that connection, before negligence could be established, a supporting opinion would require to be obtained from a suitably qualified professional person. Fifthly, funding by way of legal aid would be available to a claimant only where there existed a reasonable prospect of success; that would be a protection for the professional person. Sixthly, due allowance would, of course, be made for independent professional judgement. It was submitted that these safeguards would be sufficient to obviate a flood of unmeritorious claims. Furthermore, the recognition of liability would create an enhanced confidence in the justice system. In all the circumstances, there was no justification for a difference between the law of England and the law of Scotland on this matter. It was noteworthy that, in Scotland, solicitors had performed the advocacy function in lower courts over a long period of time, without the recognition of any immunity and without any material problems, as appeared from the observations of Lord Reed in Rondel v Worsley, at page 230.

[94] The position of prosecutors was of significance in the present context. Under section 170 of the Criminal Procedure (Scotland) Act 1995, applicable to summary criminal proceedings, there could be liability in certain circumstances, provided that the person suing specifically averred and proved that the proceeding, act, judgement, decree or sentence founded upon was taken, done or pronounced maliciously and without probably cause.

[95] The decision in Arthur J. S. Hall & Co v Simons represented the current view of the public interest in relation to the immunity of a person performing the advocacy function. That case ought to be treated as highly persuasive and ought to be followed, since it rested, not on considerations of public policy peculiar to England, but on broad policy considerations and value judgments thereon applicable to the United Kingdom as a whole. The decision in the case produced a simple and clearly understood rule. The difficulties created by a restricted immunity were avoided. The denial of immunity accorded with principle and the policy of the law: in particular, the general principle of liability for professional negligence and the rule of policy that wrongs should be remedied. It was a precondition of the recognition of any immunity in the public interest that such immunity, to the extent conferred, could be clearly justified. No compelling empirical evidence had been produced, in relation to Scotland or elsewhere, to demonstrate the need in Scotland for the immunity in the case of solicitors who conducted criminal proceedings. Prior to 1967, when the understanding was that solicitors practising in the lower courts could be sued for negligence, concern for the proper administration of justice did not seem to have been voiced either by the legal profession, or by the public.

[96] For those concerned that the courts' processes might be abused, if accused persons could sue their representatives, or that the court did not have sufficient powers to deal with perceived abuses of its processes, such concerns were best met by using existing, or if it became necessary, additional protections against vexatious, incompetent, irrelevant, misconceived or unmeritorious claims, rather than using the blunt and disproportionate instrument of immunity to deny good as well as bad claims. The use of such a blunt instrument, particularly where it was restricted to criminal proceedings would be liable, sooner or later, to attract widespread public disapproval and justified criticism. In the present case, the reclaimer's criminal conviction had been quashed. Thus the reclaimer did not seek to challenge a subsisting conviction in the civil courts in order to obtain compensation in respect of his continuing detention. Should a claimant seek to do that, the Court would require to consider whether, as a matter of competency, such a claim could be brought and, if it could, what, as a matter of relevancy, would be required by way of averments to support it.

[97] Turning to other aspects of the case, senior counsel indicated that, on the human rights aspect, he adopted the submissions of junior counsel. If immunity were to be seen as a proportionate response to a legitimate aim, Article 6 of the Convention would not be breached. However, the reclaimer's position was that it was not such a response.

[98] Turning to the cross-appeal, it was important to recognise that the reclaimer's conviction had been quashed. Thus he was not challenging an existing conviction. Had he been doing so, there would have been a competency problem. The temporary Lord Ordinary would have allowed a proof before answer on loss had he not decided as he did in relation to the issue of immunity, and this Court should do the same. The reclaimer had spent time in prison on what now had been acknowledged to be an unsound basis. That could sound in damages. There was no analogy to be drawn between the present situation and situations where civil claims for damages had been lost through the negligence of legal practitioners. There was a presumption of innocence in favour of the reclaimer, which had not been displaced. In assessing compensation, the Court would require to treat the reclaimer as a person whose guilt had not been established in accordance with law and could, in so doing, award compensation for time spent in custody. In all these circumstances the reclaiming motion should be allowed and the case dealt with as already proposed.

 

Submission of senior counsel for the respondents

[99] Senior counsel for the respondents began by indicating what would be the framework of his submissions. First, he would deal with the motion of the reclaimer. Secondly, questions would be posed with a view to focusing the issues. Thirdly, he would outline his submissions; and fourthly those submissions would be developed. In doing that he would deal with, first, domestic concerns regarding the core immunity. He would deal with the following questions: (1) why was immunity available? (2) to what or to whom did it attach? (3) if available, was retention justified? (4) how was the decision in Arthur J. S. Hall & Co v Simons to be treated? (5) whether remedies for abuse of process were available in Scotland; in particular what was the effect of the decision in Hunter v Chief Constable of West Midlands Police in Scotland? He would then deal with human rights concerns and the cross-appeal.

[100] Senior counsel then renewed the motion made by junior counsel for the respondents and indicated that he adopted her submissions. Next he proceeded to endeavour to focus the issues which he saw as arising in the reclaiming motion. In the first instance, there arose the question of what was meant by the core immunity. In Arthur J. S. Hall & Co v Simons, at page 711, Lord Hope of Craighead had adopted a definition of "the core immunity" in these terms:

" ... the immunity which attached to the advocate, when engaged in conduct performed in Court, from claims by his client for negligence."

That definition could be narrowed in the present context by the addition of words to show that the immunity under discussion related only to conduct performed in court in criminal proceedings. Secondly, the issue arose as to whether the core immunity attached only to advocates, who were members of the Faculty of Advocates, or to those who performed the function of advocacy, whether advocates or solicitors. Thirdly the issue arose as to what had been the common law of Scotland at the time of the acts in question in this case, that is on 14 December 1998. Fourthly the question arose of what weight ought to be given to the decision in Arthur J. S. Hall & Co v Simons. Fifthly, if as a matter of the common law, the core immunity attached to solicitors performing the advocacy function in court, did it amount to a rule of substantive law, or was it a procedural bar to the enforcement of a civil right. Sixthly, if the core immunity was properly to be seen as a procedural bar, the question arose of whether the immunity could be seen as existing in pursuance of a legitimate aim and whether it satisfied the test of proportionality. Seventhly and finally, the question arose out of the cross-appeal of whether there were any relevant averments of recoverable loss made by the reclaimer.

[101] In discussion arising out of the questions just focused, senior counsel submitted that it was evident from Moy v Pettman Smith in the speech of Lord Carswell at paragraph 60 that Arthur J. S. Hall & Co v Simons did not have retrospective effect. In that paragraph Lord Carswell referred to the consequences of that decision having emerged since it was taken. However, senior counsel recognised that in Moy v Pettman Smith, the House of Lords appeared to have thought fit to apply the post-Arthur J. S. Hall & Co v Simons law to events which occurred on 6 April 1998, prior to that decision. On the other hand, it had been recognised in Arthur J. S. Hall & Co v Simons that the decision of the majority proceeded upon the basis of an assessment of public policy at the time when the issue was raised. It was for that reason that Rondel v Worsley had not been over-ruled.

[102] Senior counsel then entered upon a formulation of his submissions. First, he contended that in a liberal democracy, there was a wide public interest in the good administration of criminal justice for society as a whole. Where the liberty of the individual was at stake, the risk of prejudice arising from changes to the system of criminal justice ought to be avoided, unless circumstances existed clearly demonstrating the need for such change. The respondents contended that there was an immunity which ought not to be changed, there being no good reason to do so. In order to maintain public confidence in the administration of criminal justice certain requirements were fundamental. These were: (1) the independence of the tribunal; (2) the impartiality of the tribunal; (3) legal certainty; (4) finality; and (5) the rule of law. These requirements might, in the general interest, involve subordination of the particular interest. It was contended that the immunity existed to serve the general public interest. The reclaimer's interest had to be subordinated to that general public interest.

[103] The respondents' second submission was that, until the decision of the House of Lords in Arthur J. S. Hall & Co v Simons, it had been recognised in England that the particular interest of an accused person in having a cause of action against his barrister or solicitor for in-court acts or omissions had been subordinate to the general public interest in the good administration of justice.

[104] The respondents' third submission was that, as far back as Bankton (1752) it had been recognised that certain protection from liability for errors was available to lawyers who "managed the law of a case" rather than the facts of one. However, the issue of the core immunity, as defined, had not been the subject of authoritative decision in Scotland. The issue had not been focused or argued in relation to solicitors; the case law tended to relate to solicitors carrying out administrative acts, reflecting the historical division of labour in the legal profession. Bankton spoke of persons being involved in the judicial process. He stated that there was a public duty towards the administration of justice on the part of an advocate. There was a greater good than the benefit of the individual. An examination of the development of the legal profession between the 17th and 20th Century showed solicitors being given rights to conduct litigation, but that did not, in general, include rights of audience.

[105] The respondents' fourth submission was that, in the light of a number of dicta of the highest authority, it was clear that the core immunity applied to the function of advocacy, not to the office held by the practitioner. By the time of the decision in Rondel v Worsley that was the case and that position was reaffirmed in Saif Ali v Sidney Mitchell & Co. Looking at the older authorities, it was clear that it was the process, rather than the actor, that attracted the immunity. There was no clear line of authority until Rondel v Worsley saying that solicitors possessed immunity when acting as advocates. However, it was submitted that the weight of previous authority was to the effect that solicitors in Scotland were in the same position as advocates and barristers and solicitors in England. However, it was submitted that, in Scotland, that position had not changed since the reasoning in Arthur J. S. Hall & Co v Simons did not apply to Scotland.

[106] The respondents' fifth submission was that the core immunity had been expressed in different ways at different times, depending on the state of the law of delict or tort. The best approach today was to avoid the use of the term immunity and to express the position as follows. Absent fraud or collusion, lawyers performing advocacy in criminal courts did not owe a duty of care to their clients in respect of their acts or omissions. That was because of the nature of the activity involved - advocacy in the criminal courts. It had to be acknowledged however that there was still a professional or ethical duty of care attached to such activity.

[107] The respondents' sixth submission was that the scope of the core immunity had to be construed narrowly in the public interest. However, this case, on the relevantly pled facts, represented a paradigm case where, if available, the core immunity would attach. In these circumstances, it was unnecessary for this Court to consider the position of the advocate in civil cases, or the scope of the immunity outside the context of a court. Those were questions for another day.

[108] The respondents' seventh submission was that, if the core immunity was available to all advocates in Scotland, weighing public policy considerations on the "risk benefit scale" indicated retention of the status quo; a balancing exercise had to be undertaken in this connection.

[109] The eighth contention was that, if the core immunity was available only to members of the Faculty of Advocates and if the Court agreed with the ninth and tenth submissions to be made, there was no reason why a solicitor practising advocacy should be discriminated against by being treated differently, if the immunity founded upon amounted to a benefit to the public in the administration of justice.

[110] The ninth submission was to the effect that, if the core immunity was available, it was properly to be understood as a rule of substantive law. That there was no duty of care in the setting of the courtroom was to be classified as a substantive law feature. If there was no duty of care, then there was no civil right to be determined. In that case the procedural safeguards provided for by Article 6 of the Convention were irrelevant, since there was no substantive law right to be adjudicated upon.

[111] In the tenth place, if the immediately preceding submission were wrong, and if the core immunity were to be seen as a procedural bar, that bar was proportionate and devised in the pursuit of a legitimate aim.

[112] The respondents' eleventh and final submission related to the cross-appeal. It was clear that mere proof of fault or negligence would not sound in damages, unless loss were proved. It was possible to envisage a breach of a duty of care with no consequence. If that were the position, there could be no claim for damages. There were no averments made by the reclaimer to the effect that, but for the miscarriage of justice which underlay his successful appeal against conviction, he would have been acquitted. There was no necessary causal link between a miscarriage of justice and a deprivation of liberty. The quashing of the conviction was beside the point. The respondents had not averred that the reclaimer would have been convicted and imprisoned anyway, but for the miscarriage of justice. Because there was no undertaking to prove that loss of liberty was caused by negligence, the concept of "miscarriage of justice" did not imply that there would have been an acquittal but for it. The onus undoubtedly rested upon the reclaimer to prove causation. In this connection reliance was placed upon Kyle v P & J Stormonth Darling WS, at page 67. There was no relevantly pled link between the miscarriage of justice, said to have been caused by the respondents' negligence, and the reclaimer's loss of liberty. The mere fact that the reclaimer had been subjected to a flawed trial on account of that negligence did not sound in damages. Reliance was placed on Regina v Secretary of State for the Home Department ex parte Greenfield, 2005 U.K.H.L. 14. The fact of the matter was that there had been an acquittal of the reclaimer in the end. Thus it could be said that, in any event, he had had a fair trial.

[113] It would be quite wrong for damages to be awarded simply upon the basis that a miscarriage of justice had occurred. That would open a can of worms. It was necessary to look at the cause of what had gone wrong. That matter was not addressed by the reclaimer in his averments. The respondents' approach to this aspect of the case was supported by the observations of Lord Reid in Rondel v Worsley at page 230, where he stated that, to succeed, a disappointed accused suing his counsel would have to show that negligence had caused him loss. The loss would be the fact that he was wrongly convicted by reason of his counsel's negligence. The same view was expressed by Lord Morris of Borth-y-Gest, at page 249. The same view was expressed by Lord Diplock in Saif Ali v Sidney Mitchell & Co at pages 222-223. Reliance was also placed on Giannarelli & Others v Wraith & Others at pages 594-595; also on Arthur J.S. Hall & Co v Simons, at page 682, and D'Orta-Ekenaike v Victoria Legal Aid at paragraphs 143 and 162.

[114] Senior counsel next moved on to the development of his submissions. The passages cited from Bankton's Institute of the Law of Scotland showed the recognition of a public interest in the maintenance of the position of an advocate who was seen as not liable for fault. That approach to the position of an advocate or barrister was to be seen in Swinfen v Lord Chelmsford (1860) 5 H. N. 890 at page 920. It was submitted that the old Scottish cases relating to solicitors had to be viewed with care. Smith v Grant & Leslie was a case which, it was submitted, did not involve advocacy in court. No firm conclusion could be reached upon the basis of Ritchie v Macrosty. Rondel v Worsley was to be seen as still standing as persuasive authority in Scotland, on account of the lack of safeguards in this jurisdiction, as compared with England against unmeritorious litigation. That case showed that solicitors were in the same position as barristers, as regards immunity in relation to advocacy in court. Lord Reid, at page 227, considered that there was no relevant difference between the situation in Scotland and England.

[115] Turning to Anderson v H.M. Advocate, senior counsel submitted that the public interest in the maintenance of the position of independence of the advocate was in the forefront of the court's consideration. It was considered that uncertainty would follow if that principle were to be eroded. The authorities showed that the immunity contended for was closely linked to the public interest; it was available because of the part played by the advocate, whether advocate or solicitor, in the judicial process. In relation to the question of to whom did the immunity attach, it was submitted that, if there existed an immunity for advocates, in the sense of members of the Faculty of Advocates, there had to be a parallel immunity for solicitors undertaking advocacy work. While the reclaimer contended that solicitors had never enjoyed immunity in that regard in Scotland, Rondel v Worsley showed that it had been extended to them, as appeared from the passages already cited. That was the view adopted by Lord Justice General Hope in Anderson v H.M. Advocate, at page 35. The question arose of whether the Opinion of the five judges involved in that case was binding on the matter. While it was recognised that the rationes of the present case and Anderson v H.M. Advocate were different, the Opinion of the Court was of high persuasive authority. Looking at the observations of Lord Hope of Craighead in Arthur J.S. Hall & Co v Simons at page 714, the position of barristers, advocates and solicitor-advocates were seen as identical, as regards immunity. The law of Scotland was correctly stated in the Stair Memorial Encyclopaedia of the Laws of Scotland, Vol. 13, paragraph 1380.

[116] There were strong public interest considerations in retaining the immunity available to those acting as advocates. The re-examination of circumstances leading to a criminal conviction was undesirable, although it was recognised that there might be situations in which different courts reached different conclusions in relation to the same issue. Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 recognised such possibilities. However, one of the important considerations was that Scottish law did not recognise the power of the court to strike out an unmeritorious claim, which might be categorised as an abuse of process, as appeared from the observations of Lord Hope of Craighead in Arthur J.S. Hall & Co v Simons at page 715. An important consideration in the whole debate concerning the immunity of an advocate was the likely effect of its withdrawal upon the course of criminal appeal proceedings, where the appeal was of the kind recognised in Anderson v H.M. Advocate. This point was recognised by Lord Hope of Craighead in Arthur J.S. Hall & Co v Simons at page 719. It was important that the criminal appeal process should continue to provide a remedy to a convicted person for poor advocacy. That would remain available. The immunity under discussion related only to the availability of monetary compensation. Overall, advantages derived from the existence of the immunity clearly outweighed the disadvantages attached to it. The sole matter relied upon by the reclaimer was that Arthur J.S. Hall & Co v Simons had been decided. That case had proceeded upon the view that the time was ripe for a re-examination of the implications of the public interest and public policy. However, public policy was a restive horse; there was no saying where it might go. Views as to what was in the public interest might vary widely from one individual to another. All of the factors identified by Lord Hope of Craighead in Arthur J.S. Hall & Co v Simons as justifying a continuance of the core immunity were applicable in Scotland. Also notably, the so-called safeguards against abusive litigation, which provided reassurance in that case, were not present in Scotland. There was no public criticism of what had been understood to be the law in Scotland as regards the core immunity. Since the decision in Arthur J.S. Hall & Co v Simons, no Commonwealth jurisdiction had followed that case as regards it criminal justice system. The case ought not to be followed in Scotland. None of the various protections against abusive litigation envisaged by the judges in the majority in that case would be available in this jurisdiction. It was apparent from the examination of the speech of Lord Browne-Wilkinson in Arthur J.S. Hall & Co v Simons that, had the protections discussed not been available, he would have opposed the discontinuance of the immunity. Viewing the decision in that light, and having regard to the situation as regards the protections in Scotland, it was evident that it should not be followed here. Furthermore, it was obvious from the circumstances of the three claims under consideration in that case that those claims were outwith the scope of the immunity which had been recognised up to that time. Accordingly, all of the comments by judges relied upon by the reclaimer were obiter. That circumstance weakened the persuasiveness of the case now. The reclaimer had not faced up to these problems.

[117] Senior counsel went on to consider whether and to what extent there existed in Scotland a power to prevent the abuse of the court's process, such as was recognised in Hunter v Chief Constable of the West Midlands Police. In that case the action had been categorised as an abuse of process designed to challenge the outcome of the criminal trial. No such mechanism existed in Scotland. To highlight that point it was necessary only to look at the power under which the court in England acted. Under the Rules of the Supreme Court Ord. 18, Rule 19, the court could order to be struck out any pleading or any endorsement of any writ on the ground that it disclosed no reasonable cause of action, or was frivolous or vexatious, or was otherwise an abuse of the process of the court, and might order the action to be dismissed. Whatever expressions of view might have been uttered in Scotland on the subject of the abuse of process, no such machinery existed here. Absent the immunity, Hunter v Chief Constable of West Midlands Police would not stop a genuine, only an abusive claim. In any event, having regard to the observations of the Court of Appeal in Arthur J.S. Hall & Co v Simons at pages 643-647, there was a level of confusion regarding the effect of Hunter v Chief Constable of West Midlands Police. That latter case did not enunciate a principle. At page 722 Lord Hope of Craighead had cast doubt upon the level of protection which that case furnished. In all the circumstances, no weight ought to be given to Hunter v Chief Constable of West Midlands Police.

[118] Turning to the human rights aspect of the case, senior counsel submitted that, if the core immunity were to be retained in respect of advocacy in criminal cases, it was to be classified as a substantive rule of law, not a procedural bar. Article 6 of the European Convention on Human Rights and Fundamental Freedoms safeguarded rights of a procedural nature to a fair trial. However, if no substantive right existed, Article 6 was irrelevant. The problem of classification was examined in Brooks v Commissioner of Police of the Metropolis and Others [2005] 1 W.L.R. 1495. However, in Z. & Others v The United Kingdom, at paras. 100-101, it was recognised that Article 6(1) extended only to disputes over civil rights and obligations which could be said, at least on arguable grounds, to be recognised under domestic law. It did not itself guarantee any particular content for civil rights and obligations in the substantive law of the contracting states. However, it did apply to disputes of a genuine and serious nature concerning the actual existence of the right as well as to the scope or manner in which it is to be exercised. Furthermore, it was not enough to bring Article 6(1) into play that the non-existence of a cause of action under domestic law might be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm. On the assumption that the submission that the protection available to those involved in advocacy was a rule of substantive law was wrong, the position of the respondents was that that protection pursued a legitimate aim in the field of criminal justice, which was to secure the efficient administration of justice in the criminal courts, as represented by Lord Hope of Craighead in Arthur J.S. Hall & Co v Simons at pages 710-711 and 717-718.

[119] Senior counsel returned finally to the cross-appeal. He reminded the Court of the test as set forth in Kyle v P. & J. Stormonth Darling, W.S. The lost right had to have had an assessable value. The relevance of the reclaimer's case had to depend on the averments made in Condescendence 4. In that Condescendence the reclaimer complained that he had not received a fair trial. His defence had been severely prejudiced and a miscarriage of justice had occurred. These averments did not reflect the infliction of damage on economic rights. Otherwise, there were no averments of injury. He averred that, on 16 December 1998, he had been sentenced to a period of imprisonment, but did not aver that, but for the alleged negligence he would have been acquitted. In other words, no causal connection was averred between the alleged negligence and the consequences of conviction. It was submitted that Scots law did not recognise as loss a miscarriage of justice or an unfair trial. In cases where civil claims had been lost through negligence, damages might be awarded for the loss of a chance to pursue an action. However, in this case, no such claim was made on behalf of the reclaimer. In all the circumstances, the cross-appeal should be allowed and the action dismissed upon the basis that no relevant averments of loss had been made on the reclaimer's behalf.

 

Decision

Introduction

[120] An examination of the contents of Condescendence 3 of the reclaimer's pleadings shows that the scope of the case sought to be made against the respondents is wider than a criticism of the conduct of the reclaimer's defence in court by the third named respondent. In particular, his case includes the criticism that the respondents should have precognosced the Crown witnesses in advance of the trial and that they would thus have ascertained the precise date and time when the offences, with which the reclaimer was charged, were alleged to have been committed. It is averred that they should have clarified that the offence in respect of which alibi evidence was to be led took place in the early hours of 29 August 1998. Despite the fact that the scope of the reclaimer's case against the respondents is wider than a criticism of the third named respondent's in-court advocacy, throughout the debate before us, the case was treated as one involving in-court advocacy. In what I have to say, I will follow the same approach.

[121] It may be conducive to clarity if, at this stage, I give an outline of the form which my opinion will take. First, I shall examine the Scottish authorities and textbooks on the issue in question, dated prior to Rondel v Worsley, with a view to reaching a conclusion as to whether a solicitor then enjoyed any immunity from suit in relation to negligence in in-court advocacy. Secondly, I shall consider what effect, if any, the case of Rondel v Worsley had on the existing Scots law. Thirdly, I shall consider the issue raised by the respondents in the cross reclaiming motion relating to the relevance of the reclaimer's averments of loss in Condescendence 4 of his pleadings. Fourthly, I shall express my opinion on certain other matters raised in the course of argument before us. In particular, I shall express my views in relation to the applicability in Scotland of opinions of the majority in Arthur J.S. Hall & Co. v Simons in relation to immunity in the context of criminal in-court advocacy.

 

The Relevant Scots Law before Rondel v Worsley
[122] The first Scottish case relied upon by the reclaimer was Frame v
Campbell. The background to that case was that a country agent had been employed by a manufacturing company to prepare petitions at their instance to the Justices of the Peace, against two apprentices, for having deserted their work and other misconduct. The agent prepared and presented petitions, which were founded upon section 3 of the Statute of George IV Cap.34, instead of section 1, which related to apprentices in the situation of those complained of. The apprentices were subsequently convicted and imprisoned, but later liberated by the Court of Justiciary, in respect of the wrong section having been founded upon. They thereafter sued the manufacturers for damages and expenses. The court held that, since the terms of the Act were clear, the agent was liable in relief to the manufacturers. It is apparent from examination of the Opinion of the Lord Ordinary, which was affirmed, that he considered that the blunder committed by the agent lay in the form of the petitions for which he had been responsible. Unfortunately for the agent concerned his error was initially not recognised, either by the Justices of the Peace, or the legal advisers of the apprentices in the original proceedings; nor was it recognised in the opinion of the sheriff-substitute who became involved in the matter. When the matter came before the Second Division, the Lord Justice Clerk, with whom Lord Glenlee and Lord Meadowbank concurred, said at pages 920 and 921:

" ... but the principle to be deduced from the decisions as to the responsibility of agents seems to be, that when a practitioner in an inferior court undertakes to conduct some ordinary business committed to him, he is bound to possess an ordinary degree of skill, such as is required for the due conduct of such business. ... I think, then, that the agent is liable on the principle of the responsibility of professional persons for skill. Had this been a very nice point, as to which the agent had gone wrong, as in Godfroy v Dalton, I might have held him not liable; but the case is otherwise, when the statute is so clear, and he chooses rashly to found on a wrong section; this not being a question of nice construction, on which it was difficult to have light thrown."

Lord Meadowbank, in concurring with the Lord Justice Clerk, at page 921 stated:

"When an agent is employed, and warrants his competency to conduct business, he makes himself responsible for the manner in which it is done."

[123] For the present purposes, the question must be whether this case amounts to an authority which demonstrates that a solicitor would be liable for fault in the practice of in-court advocacy. As to that, it is plain from the circumstances of the case that the agent's blunder was persisted in in the conduct of proceedings before the Justices of the Peace and before the sheriff-substitute, although it had its origin in the decision made at the time of the preparation of the pleadings in the petitions. Furthermore, the statements of law by the Lord Justice Clerk and Lord Meadowbank contain no qualification recognising any immunity in relation to in-court advocacy, although one must recognise that no such qualification was apparently contended for. In these circumstances I cannot read this case as unequivocally affirming the liability of an agent for fault in the conduct of in-court advocacy, although it is consistent with the view that such liability exists.

[124] The next case which we were asked to consider was Hart v John Frame & Son, which involved circumstances similar to those that were the subject of Frame v Campbell. The Court of Session affirmed a decision of the Lord Ordinary of liability on the part of the agents involved. The case was then taken to the House of Lords which did not disturb the judgment of the Court of Session. The Lord Chancellor, at (1839) Macl. and R., page 614, explained his view in this way:

"Professional men, possessed of a reasonable portion of information and skill, according to the duties they undertake to perform, and exercising what they so possess with reasonable care and diligence in the affairs of their employers, certainly ought not to be held liable for errors in judgment, whether in matters of law or discretion. Every case, therefore, ought to depend upon its own peculiar circumstances; and when an injury has been sustained which could not have arisen except from the want of such reasonable information and skill, or the absence of such reasonable skill and diligence, the law holds the attorney liable. In undertaking the client's business, he undertakes for the existence and for the due employment of these qualities, and receives the price of them. Such is the principle of the law of England, and that of Scotland does not vary from it."

[125] In my opinion this case stands very much in the same position as Frame v Campbell in relation to the issue raised before us. The observations of the House of Lords are not in any way qualified to suggest that there existed an immunity from liability in relation to in-court advocacy, although, once again, that matter was not expressly raised. However, one might be permitted to observe that, had such a qualification been recognised to exist, some reference might have been expected to have been made to it.

[126] The next case relied upon by the reclaimer was Purves v Landell. The factual background to that case is complicated and it is not necessary that I should narrate it here. Suffice it to say that it involved circumstances in which a so-called Border Warrant had been obtained, where there had been no jurisdiction to do so. In the ensuing action of damages, the Lord Ordinary dismissed the claim as irrelevant. That decision was ultimately affirmed in the House of Lords. At page 61 of the report in the House of Lords, Lord Campbell said:

"Against the barrister in England, and the advocate in Scotland, luckily no action can be maintained. But against the attorney, the professional adviser, or the procurator, an action may be maintained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible for even falling into what must be considered a mistake. You can only expect from him that he will be honest and diligent, and if there is no fault to be found either with his integrity or diligence, that is all for which he is answerable. It would be utterly impossible that you could ever have a class of men who would give a guarantee and bind themselves, in giving legal advice, and conducting suits at law, to be always in the right."

The Lord Chancellor, who agreed with the views just expressed, went on to state:

"When an action is brought against a solicitor, he is liable merely in cases where he has shown a want of reasonable skill, or where he has been guilty of gross negligence."

[127] Once again, while this case affirms in unqualified terms that a solicitor may be liable for negligence, it does not deal expressly with the issue of negligence in in-court advocacy, although it may be significant that Lord Campbell referred to the potential liability of "the procurator". However, had such a qualification been recognised, once again, one might have expected that some reference would have been made to it. I say this since, at the time in question, the immunity of barristers and advocates from suit was well recognised, as appeared from the observations of Lord Campbell in Purves v Landell at page 61.

[128] I turn next to consider Ritchie v Macrosty. The pursuer in that action, brought against her former agent, sought damages from him in respect of her failure in a litigation, the conduct of which had been entrusted to him by her. It is pertinent to examine the allegations which were made. It was averred that the defender had neglected to cite, or even to precognose, several of the most important witnesses. The examination of these witnesses was conducted in an unskilful and unprofessional manner, and left important points of their testimony altogether untouched. Through gross negligence and mismanagement, or from improper motives, it was alleged that the defender had failed to examine witnesses pointed out by the pursuer, notwithstanding her urgent and repeated solicitations and instructions made to him to that effect. At a later stage in the cause, when the proof on behalf of the defender in the original action was being led, the defender, without any cause or provocation whatever, and without intimation or notice of any kind to the pursuer, deliberately and in utter disregard of her interests and his own duty as her agent, or from malicious and interested motives, left the sederunt and deserted the proof. It was claimed that the pursuer's want of success in the original action was attributable, as appeared from the terms of the judgment, to the want of the evidence which her agent had failed to adduce.

[129] This action had a somewhat unusual course in the Court of Session. The defender denied the allegations made and also pleaded that they were irrelevant to infer liability on his part. No plea of immunity from suit was tabled. The case was reported to the Inner House in respect of difficulties encountered by the Lord Ordinary in adjusting issues for the trial of the cause. The Second Division dealt with the matter by remitting the case to the sheriff of the county in which the original action had been raised, with a view to his reporting. We have had the opportunity of seeing the Session Papers in this case. It is apparent from them that the Lord Ordinary considered that, in the summons and record, there were acts set forth sufficient and relevant in law to entitle the pursuers to an issue and that the first plea stated for the defender fell to be repelled. Being of this opinion, he would have pronounced an interlocutor to that effect and approved of an issue for the trial of the cause, had parties been at one as to its terms. However, in the situation outlined he reported the matter to the Inner House.

[130] I regard this case as of some importance, since it is, in my opinion, indisputable that the Lord Ordinary, Lord Cowan, regarded the action as relevant for inquiry. When the matter came before the Inner House, no decision was taken by its members to the effect that the action was irrelevant. The course taken was as already described. I regard it of some significance that no plea was taken on behalf of the defender founding upon immunity from suit, albeit that the defender had the benefit of representation by Dean of Faculty Inglis. In my opinion, the decision of the Lord Ordinary in this case can only be seen as affirming liability on the part of an agent for negligence in in-court advocacy.

[131] Urquhart v Grigor was an action against an agent for damages sustained by the loss of an action alleged to have been occasioned by the negligence of the agent, chiefly in allowing circumduction and decree by default to pass without intimating to his client the interlocutor allowing proof. The Second Division held that it was not necessary to aver that the agent acted fraudulently or collusively but dismissed the action in respect that (1) although it was the duty of an agent generally to intimate an interlocutor allowing proof, the failure to do so had not been proved; and (2) the pursuer had not condescended upon any evidence which could have been available. While the case cannot, in my view, be seen as concerned strictly with in-court advocacy, the Opinion of Lord Murray at page 857, appears to me of significance in the present context. He there said:

"If a litigant has a good case, in which a proof is allowed, and the agent fails to do his duty in the way of preparing for and leading the proof, and does not intimate that he intends to give up the agency, there is a gross failure in the performance of his duty."

The reference in this passage to the leading of the proof, without any qualification, appears to me to suggest that Lord Murray considered that negligence in in-court advocacy could found a claim.

[132] Smith v Grant and Leslie was an action at the instance of a client against a firm of agents who had acted for him in connection with the obtaining of a warrant of imprisonment of a servant under the statute of4 George IV. Cap.34. A complaint had been presented to the Justices of the Peace for the County of Elgin and on that complaint the servant concerned, along with others, had been brought before three Justices, one of the partners of the firm of Grant & Leslie attending along with the pursuer and conducting the prosecution on his behalf. The Lord Ordinary sustained a defence of irrelevancy. However, the pursuer reclaimed and the decision of the Lord Ordinary was reversed, the Second Division holding that the pursuer's averments were relevant and sufficient to support the conclusion of the action. In my view, this case is of significance in the present context, since it involved criticism of the agent's actings in court. At page 1081, the Lord Justice Clerk observed:

"In the present instance, the blunder arose from most inexcusable and careless inattention to the proceeding going on before the agents' eyes. The declarations were written on separate papers. They were signed by the parties. All this took place before the agents in open court. They were not authenticated by the Justices, and therefore no part of the process. The necessary course of procedure was to hand the declarations to the Justices, either separately as each was signed, or together after all were signed. The agent was bound to watch to see what was done. The proceedings took place under his eye, and before him. If he attended, he could not be ignorant that the papers had not been handed to the Justices for signature."

At page 1082, Lord Wood stated:

"It consequently, I apprehend, involves that there lies upon him the duty of watching the proceedings, and seeing to their being conducted in a regular manner, in order to afford protection to his client, and that he does not stand in the situation of a mere irresponsible looker-on."

Further, at page 1083, Lord Cowan observed:

"There are many things done by officials which a law-agent must see to the correctness of, in carrying through business matters with which he has been entrusted; as, for instance, when he takes steps to enforce a warrant which is not signed by the Judge, or acts upon writs for execution of diligence which have not been properly signeted or authenticated. And, in like manner, an agent in leading a proof must take care that it be regularly done. Now, in this case these declarations were the proof in the cause, and taken on the motion and in the presence of the defenders, who had the sole conduct of the proceedings."

It appears to me from the observations which I have quoted that the Second Division considered that they were dealing with the conduct of a matter by the defenders on behalf of their client before Justices in court. Their failure was to see to it that proper procedures were followed and that the declarations were signed by the Justices. I am driven to conclude that this case did involve what might be described as in-court advocacy. Furthermore, Lord Cowan's observations indicate that, in his opinion, a law agent had duties in leading a proof to see that it was regularly done.

[133] I turn next to consider the well-known case of Batchelor v Pattison & Mackersy. The action was, of course, one raised against Pattison, an advocate, that is to say a member of the Faculty of Advocates, and Mackersy, a Writer to the Signet. Damages were sought in respect of allegedly negligent management or conduct of an action in the Court of Session. What was criticised was the lodging of a minute in the action craving a remit to a man of skill by the defenders. The pursuer contended that his interests had been prejudiced by the making of this remit. The case is, of course, notable for the observations of the Lord President Inglis on the respective situations of advocate and solicitor, in connection with the conduct of court proceedings. At pages 918 and following the Lord President described the position of an advocate, that is to say a member of the Faculty of Advocates. There he said:

"An advocate in undertaking the conduct of a cause in this Court enters into no contract with his client, but takes on himself an office in the performance of which he owed a duty, not to his client only, but also to the Court, to the members of his own profession, and to the public. ... On the other hand, the nature of the advocate's office makes it clear that in the performance of his duty he must be entirely independent, and act according to his own discretion and judgment in the conduct of the cause for his client. His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced. These legal powers of counsel are seldom, if ever, exercised to the full extent, because counsel are restrained by considerations of propriety and expediency from doing so. But in such a case as this it is necessary to have in view what is the full extent of their legal powers.

The position of an agent is somewhat different. There is a contract of employment between him and his client, by virtue of which the client, for certain settled rates of remuneration, is entitled to require from the agent the exercise of care and diligence, and professional skill and experience. The general rule may fairly be stated to be that the agent must follow the instructions of his client.

But the general rule is subject to several qualifications. The agent, of course, cannot be asked to follow the client's instructions beyond what is lawful and proper. For the agent, as well as the counsel, owes a duty to the Court and must conform himself to the rules and practices of the court in the conduct of every suit. ... But above all in importance, as affecting the present question, is the undoubted special rule that when the conduct of a cause is in the hands of counsel, the agent is bound to act according to his directions, and will not be answerable to his client for what he does bona fide in obedience to such directions. ...

The conduct of the case was in the hands of Mr Pattison, who was entitled to decide what was to be done in regard to the whole of these matters. He did decide, and instructed Mr Mackersy to act according to his advice and direction. Mr Pattison himself is not answerable for the exercise of his own judgment in these matters; and Mr Mackersy, as agent, is not answerable because he acted under the instructions of Mr Pattison. Therefore I am clearly of opinion that the interlocutor of the Sheriff substitute, and the Sheriff affirming it, were just and well founded."

[134] It appears to me that a number of points emerge from this case. In the first instance, the Lord President, in concluding that the legal right of counsel was to conduct a cause without regard to the wishes of his client, so long as his mandate was unrecalled, and that what he did bona fide according to his own judgment would bind his client, and did not expose him to any action for what he had done, even if the client's interests were prejudiced, based his decision in principle upon the nature of the office of advocate, not upon the fact that the advocate was conducting an advocacy function. Upon that approach, it appears to me to follow that a person not holding the office of advocate would not enjoy the protection described by the Lord President. In the second place, the Lord President expressed the view that Mr Mackersy, as agent, was not answerable for what had been done because he had acted under the instructions of Mr Pattison, the advocate. Had it been the view of the Lord President that the agent enjoyed some immunity on his own account, I would have expected him to say so. He did not. In relation to the position of the agent, the Lord President considered that the contract of employment between him and his client gave to the client the entitlement to require from the agent the exercise of care and diligence and professional skill and experience. That part of the judgment of the Lord President is not qualified in any way. It is to be noted that the three other members of the court concurred with the judgment of the Lord President. I take from this case that, at the time of its decision, no immunity from suit was available to an agent, such as is contended for by the respondents.

[135] The last case to be considered in this section of my opinion is Murray v Reilly. In it, an action had been raised by a client against his solicitor claiming damages for the loss which he alleged that he had sustained as a result of the negligent manner in which the defender had conducted an action on his behalf in the Sheriff Court at Glasgow. Certain parts of the allegations made are not relevant in the present context. However, the pursuer averred that his lack of success in an action of reparation raised on his behalf had been caused by the defender's negligence in failing to plead and prepare the case with due care and to precognosce a particular witness and to lead his evidence at the proof. Relying on the dicta of the Lord Chancellor in Hart v Frame, to which reference has already been made, the Lord Ordinary allowed a proof before answer in relation to all of the allegations made. It is clear from the report of the case that no issue was raised of immunity from suit on the part of the defender and that that occurred in the face of allegations which, in my opinion, can only be seen as relating to in-court advocacy, in respect that the allegations included the criticism that the defender had failed to lead the evidence of a particular witness. I regard this case as confirming that no such immunity was recognised to exist.

[136] I turn next to consider such assistance as may be gained from legal commentators and textbook authors in relation to the matter in question. Taking these in chronological order, there was extensive reference by the respondents to Institute of the Law of Scotland, Bankton (1752), Volumes 2 and 3. The purpose of this reference was an endeavour to show that at the time of writing, it was the function of advocacy that attracted immunity, rather than the identity of the individual performing it. While it is evident from this work that, at the time of writing, the view taken was that none was liable for the counsel which he honestly gave, I do not find this material of particular assistance now. Since the views concerned were expressed, there have been a number of judicial decisions, which appear to me to alter and qualify the view of the law there expressed.

[137] The learned author of Begg on Law Agents (1883) considered that, as long as a law agent did not deviate from the lawful and proper instructions of his client, he was entitled to exercise his own discretion in the general conduct of judicial proceedings, subject to the directions of counsel when counsel were employed. Only fraud, or gross negligence, or want of skill would render him liable in damages for the loss of an action. He also indicated, at page 248, that there were several reported cases in which law agents practicing in the inferior courts, without the assistance of counsel, had been found liable in damages to their clients on the grounds of unskilfulness. It appears to me that nothing in this work supports the view that there existed an immunity from suit for the benefit of a law agent practicing in-court advocacy.

[138] The matter of the liability of a law agent for defective performance of his duty is dealt with in the article on law agents in Greens Encyclopaedia of the Laws of Scotland, Volume 9, in an article by the late J. Henderson Begg and John More. In paragraph 90 the view is expressed that law agents employed in the conduct of litigation are liable if they grossly neglect to perform such duties as are generally allotted to their branch of the legal profession. However, they are not liable if they have bona fide acted under the direction or by the advice of counsel. The view is also expressed that law agents practicing in the inferior courts without the advise of counsel will not be held responsible for the consequences of a mistake in a matter of law upon which a reasonable doubt may be entertained. It appears to me that nothing said in this article supports the view that immunity existed in favour of a law agent acting alone and without the advise of counsel. Similar views are expressed in The Law of Reparation in Scotland, Glegg, 4th Edition, 1955, at pages 466 to 468 and 477 to 478. The learned author of that work makes no reference to any immunity from suit in relation to in-court advocacy.

[139] In the light of my consideration of the foregoing cases and the views expressed by authors on the subject, the conclusion which I have reached is that, prior to the decision in Rondel v Worsley, no immunity from suit was recognised in Scots law on the part of solicitors acting alone and without the advice of counsel in relation to in-court advocacy. In my opinion the cases of Ritchie v Macrosty, Smith v Grant & Leslie and Murray v Reilly, in particular, demonstrate that no such immunity existed. Furthermore, the observations in Lord Campbell in Purvis v Landell appear to me to be of a similar effect.

 

The effect, if any of Rondel v Worsley

[140] The facts of Rondel v Worsley are well-known, so I shall not repeat them here. The case was, of course, an action of damages by a disappointed client against his former barrister. The decision of the House of Lords was that a barrister was immune from an action of negligence at the suit of a client in respect of his conduct and management of a cause in court and the preliminary work connected therewith, such as the drawing of pleadings. That immunity was based on public policy and long usage. Accordingly, anything said in that case concerning the position of a solicitor acting as an advocate is necessarily obiter. In the course of the speeches in the case, Lords Reid, Morris of Borth-y-Gest, Pearce and Upjohn expressed the opinion that, on the grounds of public interest, a solicitor, while acting as an advocate, had the same immunity from an action for negligence as a barrister did. Of these, only Lord Reed expressed any view in relation to the law of Scotland. The relevant passage in Lord Reed's speech begins at page 230. There he said:

"I think that some assistance can be got from looking at the record of solicitors. They are liable to be sued for negligence in conducting cases and they do conduct an immense number of cases in the lower courts. But successful claims against them for negligence in doing the kind of work which a barrister would do if instructed in the case appear to be very few in number."

At this point in his speech, Lord Reid made reference to two English cases. He then went on:

"There have also been one or two Scottish cases where a solicitor has been held negligent in carrying out work in court which would have been done by an advocate if counsel had been instructed."

It would appear from the record of the arguments advanced in the case at page 207 that the Scottish authorities to which Lord Reid referred were Ritchie v Macrosty, Urquhart v Gregor, Smith v Grant & Leslie and Murray v Reilly. At page 231, Lord Reid continued:

"For the reasons I have given I am of opinion that it is in the public interest to retain the existing immunity of barristers from action by clients for professional negligence, at least so far as it relates to their work in conducting litigation. And that would be sufficient to require the dismissal of the present appeal. But to leave the matter there would, I fear, lead to some misunderstanding or even confusion."

At page 232, Lord Reid deals with the position of solicitors specially in this way:

"Finally I must deal with a powerful argument for the appellant to the effect that, if it is unnecessary to protect solicitors by giving them immunity from action by their clients, it cannot be necessary to protect barristers in that way. But I would turn the argument the other way: if it is in the public interest to protect counsel, what good reason is there for withholding similar protection from solicitors? This matter has never been fully considered. As I have already stated there have been very few cases in which the question could have been raised. And hitherto, in England at least, cases conducted by solicitors have generally been of comparatively minor importance. There are differences between the position of barristers and solicitors; not all the arguments which I have adduced apply to solicitors. But the case for immunity of counsel appears to me to be so strong that I would find it difficult to regard those differences as sufficient to justify a different rule for solicitors. I have already shown that solicitors have the same absolute privilege as counsel when conducting a case. So my present view is that the public interest does require that a solicitor should not be liable to be sued for negligence in carrying out work in litigation which would have been carried out by counsel if counsel had been engaged in the case."

[141] It will be evident from my quotations from the speech of Lord Reid that, in expressing the view which he did, as regards the position of solicitors, he made reference to the position in Scotland only to the extent of mentioning the Scottish cases referred to at page 231. The only other reference in the speech of Lord Reid to be found relating to the position in Scotland is that at page 227. There he was considering the basis for the immunity from suit of barristers. He said:

"I do not propose to examine the numerous authorities. It is, I think, clear that the existing rule was based on considerations of public policy. But public policy is not immutable and doubts appear to have arisen in many quarters whether that rule is justifiable in present day conditions in this country. So it appears to me to be proper to re-examine the whole matter. In doing so I shall confine my attention to conditions in England and Scotland, between which there appears to me to be no relevant difference."

[142] In my opinion, a plain reading of this passage is to the effect that Lord Reid was saying only that, in relation to considerations affecting the public interest, conditions in England and Scotland did not differ.

[143] Against this background, the question presents itself of what effect, if any, Lord Reid's observations on the position of solicitors had upon the law of Scotland. At best, his remarks at page 232 regarding the position of solicitors might be thought, inferentially, to have relevance to the position in Scotland, upon the view that his remarks at page 227 regarding the public interest suggest that, in his view, conditions in Scotland and England were the same. However, that can be only an inference. Furthermore, it is necessary to recognise that the views expressed at page 232 were of a tentative nature; Lord Reid himself stated that the matter had never been fully considered. It was subject to that qualification that he stated what was his present view. Furthermore, it is to be noted that, apart from recognising that certain Scottish cases had been cited to the Appellate Committee, he made no further reference to them. In these circumstances, I find myself unable to hold that the law of Scotland, as established in the several cases to which I have referred, was altered upon so slender a basis. I am unaware of any principle of judicial precedent that would require me to take a different view. Accordingly, my conclusion is that the case of Rondel v Worsley had no impact upon the law of Scotland in regard to the position of solicitors, as I have sought to show that it was prior to that decision.

[144] Having reached the conclusion that I have, it is right that I should express my view on certain observations in Anderson v H.M. Advocate. In that case, it was, of course, recognised that a failure on the part of legal representatives of an accused person to present that person's defence to the court could constitute a miscarriage of justice in terms of section 228(2) of the Criminal Procedure (Scotland) Act 1975. At page 35 of the Opinion of the Court delivered by Lord Justice General Hope, as he then was, his Lordship said:

"In Rondel v Worsley the view was expressed that the rule of public policy which requires that a barrister should be able to carry out his duty to the court independently, should apply also to solicitors, to give them immunity from suit for negligence in regard to work in litigation which would have been carried out by counsel if counsel had been acting in the case. Thus the solicitor when acting as his client's advocate is placed on the same footing as counsel in regard to the independence which he is entitled to exercise in the conduct of the case in court on his client's behalf."

As I read this passage, the first part of it is simply a narrative of the view expressed by Lord Reid, which I have already quoted. As regards the second part of this passage, if it is intended to endorse the tentative view expressed by Lord Reid as regards immunity from suit in relation to solicitors acting as advocate, then it is one with which I must respectfully disagree, for the same reasons as caused me to conclude that Lord Reid's observations had not affected the pre-existing law of Scotland on the matter. Furthermore, it is evident from Anderson v H.M. Advocate that the issue which has been debated before us was not the subject of debate in that case. In any event, Lord Hope's observation was obiter so far as the decision in that case was concerned.

[145] Since reference was made to it during the course of argument, it is right that I should also mention the passage at paragraph 1380 in Volume 13 of the Stair Memorial Encyclopaedia of the Laws of Scotland, in an article by Lord Rodger of Earlsferry on the legal profession. In this paragraph his Lordship opines that older Scottish discussions and decisions in relation to the immunity of counsel from suit required to be read in the light of the decisions in Rondel v Worsley and Saif Ali v Sydney Mitchell & Co, especially since Lord Reid's speech in the former case proceeded explicitly on grounds of public policy common to both Scots and English law. In my view nothing in this passage impacts adversely on the conclusions which I have reached. It does not deal with the position of solicitors acting as advocates.

 

The Cross Appeal

[146] The context of the cross appeal is that the reclaimer has made certain averments of loss in Condescendence 4 of his pleadings, which I have already quoted in the context of my narrative of the background circumstances. It also embraces the fact that, in dismissing the action, the temporary Lord Ordinary has sustained only plea in law 2 for the defenders and respondents. In paragraph [44] of his Opinion he has indicated that, if his view of the law was incorrect, either because the solicitor was never immune from suit, or because any immunity no longer applied in Scotland as a matter of public policy, then he would have ordered a proof before answer on the pleadings as they stood, reserving all preliminary pleas apart from plea in law 2. Thus the Lord Ordinary has held that the averments of loss in Condescendence 4 were sufficient to justify an inquiry.

[147] The averments of loss made by the reclaimer are brief. He avers that he did not receive a fair trial and that his defence was severely prejudiced. He avers that a miscarriage of justice occurred and that on 16 December 1998 he was sentenced to a period of imprisonment. He remained in prison until he was released on interim liberation on 16 March 1999. It is to be noted that the reclaimer does not aver that, but for the alleged negligence of the third named respondent, he would probably not have been convicted and sentenced to imprisonment.

[148] The temporary Lord Ordinary deals with the attack on the averment of loss in paragraphs [38] to [43] of his Opinion. He has focused attention on the fact that the reclaimer had adequately averred that there was a miscarriage of justice caused, it might be, only in part by the negligence of his solicitor. It appears from what is said in paragraph [38] that the temporary Lord Ordinary considered that to be an adequate basis for inquiry into loss. In paragraph [41] he states that, in his opinion, it was not necessary for the reclaimer to aver and prove that he, on a balance of probabilities, would have been acquitted by the jury, but for the negligence of his agents.

[149] The conclusion which I have reached on this aspect of the case is that the temporary Lord Ordinary erred in holding that the reclaimer had averred sufficient in relation to loss to justify an inquiry. I am caused to take this view on account of several expressions of opinion in cases to which I shall now refer. In Rondel v Worsley, at page 230 Lord Reid figured a case where a convicted man sued his counsel. As to that, he observed:

"To succeed he must show not only that his counsel was guilty of professional negligence, but also that that negligence caused him loss. The loss would be the fact that he was wrongly convicted by reason of his counsel's negligence."

In the same case, at pages 249 and 250 Lord Morris of Borth-y-Gest considered the same aspect of the case. He said:

"It will be useful to consider some of the circumstances that would arise if such actions were permitted. If someone has been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been unskilful unless he can prove that he would have been acquitted had his counsel conducted the case with due care and skill. He would have to prove that on a balance of probability. He would, however, only have been convicted if the jury had been sure that his guilt had been established. If he asserts that, had his counsel asked some more questions than he did ask, the jury in the criminal case or the magistrates would have acquitted him, would he be entitled in his negligence action to call as witnesses the members of the jury or the members of the bench of magistrates who had convicted him? I have no doubt that it would be against public policy to permit any such course. ... If in the civil action the suggestion was made that, had there been further evidence called or further questions put in the criminal case, there might have been a disagreement rather than a conviction, this only serves to demonstrate how difficult it would be for a court to decide on a balance of probabilities what the jury in the criminal case would have done had there been different material before them."

[150] In Saif Ali v Sydney Mitchell & Co the issue was whether a barrister was liable for allegedly negligent advice and, in particular, whether the advice fell within the ambit of the immunity enjoyed by him. The facts of the case are not relevant to the issue under consideration, but at page 222 to 223 Lord Diplock expressed the view that in proceedings against a barrister arising out of the conduct of a trial, it would be necessary for the claimant to show that "it was the negligent act or omission of the barrister in the conduct of his client's case that caused the wrong decision by the court ...".

[151] A similar approach is to be found in Arthur J.S. Hall & Co. v Simons. At page 682 Lord Steyn observed:

"... it will not be easy to establish negligence against a barrister. The courts can be trusted to differentiate between errors of judgment and true negligence. In any event, a plaintiff who claims that poor advocacy resulted in an unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome."

At page 684, Lord Browne-Wilkinson said:

"In the overwhelming majority of cases, the action in negligence will not be capable of succeeding unless the verdict of guilty in the original trial is held to have been incorrect; if the complainant was in any event guilty of the alleged crime, the negligence of his advocate, even if proved, would not have been shown to be causative of any loss."

At page 687 Lord Hoffmann considered the various objections to the discontinuance of the barristers immunity and, in particular, the collateral challenge argument. There he said this:

"If a client could sue his lawyer for negligence in conducting his litigation, he would have to prove not only that the lawyer had been negligent but also that his negligence had an adverse effect upon the outcome. This would usually mean proving that he would have won a case which he lost".

[152] The same issue of what would require to be proved in an action of damages against a barrister was the subject of consideration by the High Court of Australia in d'Orta-Ekenaike v Victoria Legal Aid. At paragraph 143 McHugh J. stated:

"Their Honours placed importance on the damage to the administration of justice that would be caused by the collateral challenge to proceedings where a suit of negligence concerns conduct in the course of litigation. That damage is two‑fold. In order to establish causation, a plaintiff must show at least that, but for the advocate's conduct, a different result would have obtained in the proceedings. Causation could rarely be demonstrated without a full consideration of the issues litigated in the primary proceedings, including a rehearsal of the evidence".

Again, at paragraph 162 he stated:

"In criminal cases, the prospect of re-litigation is especially invidious. Whether or not the conviction has been overturned, the plaintiff must prove that, but for the advocate's negligence, an acquittal would have followed. But, except where an acquittal was required as a matter of law, that issue in most cases is simply impossible of proof. Take the present case as an example. Juries give no reasons, and it is against public policy for jurors to be called to give evidence as to their reasoning process. For all a civil court, trying an action of negligence, would know, the plea of guilty may have been entirely discounted by the jury at the first trial of the applicant. The advocate's alleged negligence may have had no material bearing on the result. Why should a plaintiff get damages for negligence that cannot be proved to have affected the result?"

In paragraph 163 he went on:

"Those who claim that, if an advocate's negligence can be a ground for overturning a criminal conviction, it should be a ground for a civil action for damages fail to note the differences between a criminal appeal and a civil action for damages concerning an advocate's negligence. In a criminal appeal, once the court finds that the advocate's negligence constituted an irregularity that might have affected the result, the onus is on the Crown to prove that the irregularity could not possibly have affected the result. Unless the Crown has discharged that onus - which is always difficult - the conviction will be quashed. In the civil proceeding, the accused bears the onus of proving that the advocate's negligence resulted in his or her conviction, a burden that can only be discharged by guesswork".

While the difficulties to which McHugh J. referred were seen as reasons for supporting the continued immunity of the barrister, a position different from that taken up by the House of Lords in England, nevertheless, it appears to me that the observations which I have just quoted possess force in relation to the issue of causation, whatever view may be taken concerning the immunity itself.

[153] In the course of discussion in this case, our attention was drawn to those civil cases in which claims for damages against solicitors have been advanced in the context of civil litigation. Such a case is Yeoman v Ferries in which it was held that, on account of the pursuer having had a cause of action which could legitimately have been pressed and that he would, on a balance of probability, have recovered damages, or received a sum in settlement of the action, he was entitled to an award against the defender, his former solicitor. In that case, the emphasis had not been upon the outcome of the proceedings that might have been brought but for the solicitor's failure to raise timeous action, but rather upon the value attached to the existence of a claim. That case was followed in Kyle v P. J. Stormont Darling W.S.. In my opinion these cases are not of assistance in the context of the present case where the original proceedings were of a criminal character rather than where the contemplated proceedings were civil. In the present case the original criminal proceedings were carried to their conclusion, with the result that the reclaimer was convicted. That is an acknowledged fact. In my view, that is a wholly different situation from one in which the negligence lay in the failure to raise civil proceedings, which would have had an uncertain outcome. In the latter case and having regard to the realities of civil litigation, it is not difficult to see why the existence of a claim could be readily acknowledged to possess a pecuniary value, without reference to the outcome of the contemplated civil proceedings. However, in my opinion, the position is different where the criminal proceedings have themselves taken place, albeit involving a miscarriage of justice.

[154] The difficulty so far as the reclaimer is concerned, in my opinion, lies in his reliance upon the occurrence of a miscarriage of justice. As I understand it, the High Court of Justiciary have never endeavoured to formulate a comprehensive definition of that concept, which is a creature of statute in the context of the criminal appeal system. In that connection, I refer to Harper v H.M. Advocate 2005 S.C.C.R. 245, at pages 260 to 261. Plainly, one might say that a miscarriage of justice involves some material departure from the regular course of criminal proceedings. However, accepting that, the existence of a miscarriage of justice may tell one nothing about what might have been the result of the proceedings in the absence of such miscarriage. Putting the matter in a slightly different way, in my opinion, it is impossible to envisage how a miscarriage of justice itself could give rise to pecuniary loss without entering into a consideration of how the outcome of the criminal proceedings might have been affected by it occurrence.

[155] I have to recognise that in Acton v Graham Pearce & Co. it was held by Chadwick J. that, where a plaintiff had been convicted as a result of the negligence of his lawyers, and had succeeded on an appeal against that conviction, the interests of justice required that he should have a remedy in damages against them where they were not immune from suit as advocates. The civil court could avoid a rehearing of the criminal trial by treating the plaintiff's claim as a claim for damages for the loss of the chance that he would not have been prosecuted or that, if prosecuted, he would have been acquitted. The approach taken was that the court concluded that the chance that the plaintiff would not have been convicted of the offences with which he was charged, had his solicitors' performed their duties, could fairly be put at 50%. Accordingly there was ordered an inquiry as to the loss which he had suffered as a result of his conviction; he would be awarded 50% of that loss as damages. I have no wish to enter into a detailed consideration of that case or Allied Maples Group v Simmons & Simmons, which was followed in it, since, it appears to me that the decision in Acton v Graham Pearce & Co. is in conflict with the several dicta in the House of Lords, to which I have already referred. However, perhaps more cogently, it is quite plain from the averments made by the reclaimer in Condescendence 4 that his claim has not been stated upon the basis that the respondent's alleged negligence would have had some particular impact upon the prospects for his acquittal. His averments are focused exclusively upon the occurrence of a miscarriage of justice.

[156] In all of these circumstances, the conclusion which I have reached is that the cross-appeal must be allowed. In my opinion, Condescendence 4 of the reclaimer's pleadings contains no relevant averments of loss. I therefore consider that the temporary Lord Ordinary ought to have sustained plea-in-law 3 for the defenders and respondents and, on that basis, if no other, dismissed the action. Accordingly I move your Lordships to sustain that plea-in-law and refuse the reclaiming motion.

 

Other aspects of the case

[157] Since we heard extensive and elaborate argument concerning a number of matters with which I have not found it necessary to deal, nevertheless it is appropriate that I should set forth my opinion on certain of them, so far as that is possible.

[158] As regards Arthur J.S. Hall & Co. v Simmons and the associated cases heard together with it, these were concerned with claims based on negligence made against solicitors who had advised on, or negotiated, settlements. In each case, the judge at first instance had concluded that solicitors enjoyed an advocate's immunity from suit and struck out the client's claims against them as an abuse of the process of the court. The Court of Appeal, having heard the cases together, ruled that in none of the cases were the solicitors immune from suit and restored the clients' claims. The appeal to the House of Lords failed, with the decision of the Court of Appeal being affirmed. It is inherent in that state of affairs that the observations of members of the Appellate Committee in relation to the immunity from suit of barristers and solicitors undertaking in-court advocacy were obiter.

[159] Nevertheless, having regard to the significance which those observations have come to possess, it is appropriate for me to review the basis for them which was adopted and to consider the question of whether that basis could stand, having regard to circumstances in Scotland. At the outset, it is important to understand what was under consideration by the Appellate Committee. At page 675 Lord Steyn considered that the Committee were considering "two fundamental general questions, namely: (1) ought the current immunity of an advocate in respect of and relating to conduct of legal proceedings as enunciated by the House in Rondel v Worsley [1969] 1A.C.191, and explained in Saif Ali v Sidney Mitchell & Co. [1980] A.C.198, to be maintained in England? (2) What is or ought to be the proper scope in England of the general principle barring a collateral attack in a civil action on the decision of a criminal court as enunciated in Hunter v Chief Constable of the West Midlands Police [1982] A.C.529?" It is of interest to observe that Lord Steyn specifically recorded that the position in Scotland was not the subject matter of argument on the appeals in question. At page 678, he took stock of the arguments for and against the immunity. These were, first, the cab rank principle; second, the analogy of immunities enjoyed by those who participate in court proceedings; third, the public policy against re-litigating a decision of a court of competent jurisdiction; and, fourth, the duty of a barrister to the court. In relation to the first of these considerations Lord Steyn took the view that the impact of the cab rank principle on the administration of justice in England was not great. I would have no difficulty in concluding that the same position obtained in Scotland, for reasons similar to those given by Lord Steyn. Likewise, I would have no difficulty in agreeing with the view expressed by Lord Steyn in relation to the analogy of the immunities enjoyed by those who participate in court proceedings. It appears to me that those immunities have little or nothing to do with the justification for any immunity from actions for negligent acts arising out of in-court advocacy. However, the position in relation to the third of Lord Steyn's factors appears to me rather different. In relation to the issue of re-litigation, Lord Steyn noted that defendants convicted after a full and fair trial who failed to appeal successfully would from time to time attempt to challenge their convictions by suing advocates who appeared for them. He considered that this was the "paradigm of an abusive challenge". He observed that it was a principal focus of the principle in Hunter v Chief Constable of the West Midlands Police. His conclusion on this area of the case was that the barrister's immunity was not needed to deal with collateral attacks on criminal and civil decisions. The public interest could be satisfactorily protected by independent principles and powers of the court.

[160] It is in this particular area that I consider that the position in Scotland is markedly different from that in England, as described by Lord Steyn. In this connection it is pertinent to consider Hunter v Chief Constable of the West Midlands Police. In that case, to the details of which it is not necessary for me to refer, the House of Lords held that, where a final decision had been made by a criminal court of competent jurisdiction, it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court; and that the fresh evidence which the plaintiff sought to adduce in his civil action fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made which, in the case of a collateral attack in a court of coordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case. It is important to appreciate that the background to the case was that the Chief Constable had applied for statements of claim to be struck out under R.S.C., Ord. 18, r. 19 and under the inherent jurisdiction of the court. The judge of first instance had dismissed that application, but the Court of Appeal had allowed an appeal and ordered that statements of claim should be struck out. R.S.C. Ord. 18, r. 19 provided:

"(1) the court may ... order to be struck out ... any pleading or the indorsement of any writ ... on the ground that -

(a) it discloses no reasonable cause of action ... or

(b) it is scandalous, frivolous or vexatious; or ...

(d) it is otherwise an abuse of the process of the court; and may

order the action to be ... dismissed ...".

I should explain that it is my understanding that the position regarding the power of the court in England to strike out a statement of case is now governed by the Civil Procedure Rules 1998 Rules 3.4 and 24.2. These provide as follows:

" ... 3.4. ...

(2) the court may strike out a statement of case if it appears to the court -

(a) that the statement of case discloses no reasonable grounds for

bringing or defending the claim,

(b) that the statement of case is an abuse of the court's process or is

otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice

direction or court order ... ;

24.2 Grounds for summary judgment

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -

(a) it considers that -

(i) that claimant has no real prospect of succeeding on the

claim or issue; or

(ii) that defendant has no real prospect of successfully

defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

In the present context, it has to be said that there is no counterpart of these provisions in the rules of either the Court of Session or the Sheriff Court.

[161] In this situation it is appropriate to consider whether there exists in Scotland a power of a similar nature to that which was used in Hunter v The Chief Constable of the West Midlands Police and which is now available to the court in England. In that connection, we were referred to certain Scottish authorities. The first of these was Levison v The Jewish Chronicle Ltd. The circumstances of that case were virtually unique. They involved a dispute concerning the authenticity of certain productions. These were averred by the defender to be false and fabricated. The process had been borrowed by the pursuer and the documents in question abstracted therefrom while it was in his personal custody. It had thereafter been returned without the documents. The pursuer alleged that they had been lost. In these circumstances Lord Ashmore held that the pursuer was guilty of conduct amounting to contempt of court and pronounced decree of absolvitor in favour of the defender. At page 759, his Lordship doubted the expediency of using process caption and also the appropriateness of the possible penalties of fine and imprisonment. He came to the conclusion that the granting of a decree of absolvitor with expenses would be just and would penalise the pursuer for unjustifiable and improper interference in this case with the ordinary course of justice, to the serious prejudice of his opponents in the litigation. My conclusion in relation to this case is that the circumstances were so unusual that it cannot constitute a precedent of any kind. The course of action taken by the court proceeded upon no defined principle, but was rather a consequence of the Lord Ordinary's concern to do justice in the particular circumstances of the case.

[162] The second of the cases referred to in this context was Shetland Sea Farms Ltd v Assuranceforeningen Skuld and The International Oil Pollution and Compensation Fund. In that case it was argued that it was contrary to public policy for the court to adjudicate upon a claim initiated by the alleged fraud of the claimant. At paragraphs [143] and following of his Opinion, Lord Gill, as he then was, concluded that the court had an inherent power to dismiss a claim where the party pursuing it had been guilty of an abuse of process. He concluded that, in the case under consideration, the deception practiced by the responsible officers of the claimant had been detected and thereafter desisted from. In these circumstances he concluded that it would be an excessive and unnecessary disposal of the case to deprive the claimant of the opportunity to prosecute his claim and would amount to a mere punishment for past impropriety. Lord Gill did not attempt to formulate a comprehensive statement of principle. Apart from Levison v The Jewish Chronicle Ltd, the authorities to which he referred were all English. On the basis of the observations in this case, in my opinion, it is impossible to reach a conclusion as to the scope of the inherent power of the court to dismiss a claim where the party pursuing has been guilty of an abuse of process.

[163] The third case to which we were referred was Clarke v Fennoscandia Ltd &c. There opinions were expressed by the Lord Justice Clerk, Lord Clarke and Lord Menzies to the effect that the court possessed an inherent power to control the abuse of process, although it was not considered necessary or appropriate for it to be exercised in the particular circumstances of that case. Reference was made to Hunter v The Chief Constable of West Midlands Police.

[164] While I would not wish to differ from what was said in the second and third of the foregoing cases, and while I would acknowledge in principle the existence of an inherent power in any court to prevent abuse of the court processes, leaving aside Levison v The Jewish Chronicle Ltd, I am not aware that the power has been exercised in any Scottish case. In my view, as matters currently stand, there would be insuperable practical difficulties in doing so. It appears to me that these derive from the absence of any counterpart of the rules of the court in England, which were operated in Hunter v The Chief Constable of the West Midlands Police and which now take the form of Rules 3.4(2) and 24.2 of the Civil Procedure Rules 1998, already quoted. In my opinion, unless and until the inherent power referred to in the second and third of the cases mentioned above is crystallised in the form of rules of court which define the criteria which are to be applied in connection with the exercise of that power, in practice, it could not be exercised. It may be that this consideration is what Lord Hope of Craighead had in mind when he said in Arthur J.S. Hall v Simons at page 715 that "The power of the court to strike out a civil action on the ground that it is an abuse of process has not yet been recognised in Scotland."

[165] Reverting now to the speech of Lord Steyn at page 682 of the same case, his Lordship was at a pains to emphasise that unmeritorious claims against barristers would be struck out under the Civil Procedure Rules to which I have referred. In my view, an important difference between the position in England and in Scotland is that that course of action would not currently be open to the court here.

[166] Lord Steyn's fourth critical factor was the duty of a barrister to the court, with which he dealt at page 680. His conclusion was that in present circumstances there were substantial grounds for questioning this ground of public policy as a basis for immunity from suit. He compared the position of barristers, who owed a duty to the court with doctors who had a duty to an ethical code, or to individuals other than their patients. With the very greatest of respect, I find it very much more difficult than did Lord Steyn to dismiss the duty of a pleader to the court as an important consideration in regard to the issue of immunity. In the context in which advocacy is practiced before a court, the pleader must at all times keep in contemplation the need to observe his responsibilities to it, which may, from time to time, conflict with the furtherance of the interests of his client.

[167] Reverting to the reasoning in Arthur J. S. Hall & Co. v Simons, Lord Browne-Wilkinson at page 684 considered whether there were special reasons which required the immunity of the advocate in a criminal trial to be maintained. His view was that only one of the four main grounds relied upon appeared to be capable of justifying the immunity. He considered that:

" ... to allow an action for negligence against the advocate for his conduct in earlier litigation is necessarily going to involve the risk that different conclusions on issues decided in the first case will be reached in the later case."

He went on:

"Therefore, if there is to be a successful action for negligence in criminal matters, so long as the plaintiff's criminal conviction stands there will be two conflicting decisions of the court, one (reached by judge and jury on the criminal burden of proof) saying that he is guilty, the other (reached by a judge alone on the balance of probability) that he is not guilty. My Lords, I would find such conflicting decisions quite unacceptable. If a man has been found guilty of a crime in a criminal trial, for all the purposes of society he is guilty unless and until his conviction is set aside on appeal. Therefore, if the removal of the advocate's immunity in criminal cases would produce these conflicting decisions, I would have no doubt that the public interest demanded that the advocate's immunity be preserved.

But in my judgment the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction. Hunter v The Chief Constable of the West Midlands Police [1982] A.C. 529 establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such re-litigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute ...

It follows that, in the ordinary case, an action claiming that an advocate has been negligent in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Only if the conviction has been set aside will such an action be normally maintainable. In these circumstances there is no need to preserve an advocate's immunity for his conduct of a criminal case since, in my judgment, the number of cases in which negligence actions are brought after a conviction is quashed is likely to be small and actions in which the conviction has not been quashed will be struck out as an abuse of process."

It is quite plain from the speech of Lord Browne-Wilkinson that he placed the greatest importance on the power of the court to strike out proceedings as an abuse of process. But for that power, he makes clear that he would have concluded that the public interest demanded that the advocate's immunity should be preserved.

[168] Turning to the speech of Lord Hoffmann, in which he gave the most thorough consideration to all of the arguments in favour of immunity addressed to the Judicial Committee, it is, in my view, again quite plain that he also attributed the greatest importance to the powers of the courts in England to strike out unmeritorious and abusive claims. Looking at his treatment of this matter at page 691, one is struck by the extent to which the power of summary dismissal of unmeritorious claims has been developed there. He observes:

"Under the old rules, a defendant faced with what appeared to be a bad claim had a very heavy burden to satisfy the court that it was 'frivolous and vexatious' and ought to be struck out. Now rule 24.2 provides that the court may give summary judgment in favour of a defendant if it considers that 'the claimant has no real prospect of succeeding on the claim'. The defendant may file written evidence in support of his application. In Swain v Hillman [2001] 1 All E.R. 91 (see The Times, 4th November 1999), Lord Woolf M.R. encouraged judges to make use of this 'very salutary power ... It saved expense; it achieved expedition; it avoided the court's resources being used up in cases where it would serve no purpose; and, generally, was in the interests of justice'.

Of course the summary power has its limits. The court should not 'conduct a mini-trial' when there are issues which should be considered at a full one. But it should enable the courts to deal summarily with truly vexatious proceedings."

Looking at the scope and use of these powers in England, it becomes even plainer that they possess no counterpart in Scotland. It appears to me that the inherent power referred to in the cases which I have already mentioned, the scope of which has never been defined and which has never yet been operated, is not comparable with the powers which Lord Hoffmann describes. It may well be desirable that consideration should be given in Scotland to the introduction of such powers, including, in particular, a definition of their scope and how they should be used, but so far, that has not been done.

[169] At page 703 of his speech, Lord Hoffmann deals with the relationship between the immunity under consideration and the abuse of process by re-litigation of issues already decided. He concluded that:

" ... the discussion in the last sections shows, first, that not all re-litigation of the same issue will be manifestly unfair to a party or bring the administration of justice into disrepute, and secondly, that when re-litigation is for one or other of these reason an abuse, the court has power to strike it out. This makes it very difficult to use the possibility of re-litigation as a reason for giving lawyers immunity against all actions for negligence in the conduct of litigation, whether such proceedings would be an abuse of process or not. It is burning down the house to roast the pig; using a broad spectrum remedy when a more specific remedy without side effects can handle the problem equally well."

At page 704 he sums up his position in relation to the various arguments deployed, saying:

"My Lords, I have now considered all the arguments relied upon in Rondel v Worsley [1969] 1 A.C. 191. 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."

At page 706, Lord Hoffmann concludes that:

" ... in my opinion it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong. This applies to a conviction on a plea of guilty as well as after trial. The resulting conflict of judgments is likely to bring the administration of justice into disrepute ...

Once the conviction has been set aside there can be no public policy objection to an action for negligence against the legal advisers. There can be no conflict of judgments and the only contrary arguments which remain are those of divided loyalty, vexation and the cab rank, all of which I have already rejected."

[170] The fourth member of the majority in favour of the abolition of immunity in criminal proceedings was Lord Millett, who was in full agreement with the speeches of Lord Steyn and Lord Hoffmann. He was persuaded that the immunity in criminal proceedings ought not to be retained in the absence of compelling reasons to do so. He could identify no such reasons.

[171] Thus looking at the reasons given for their position by members of the majority, who were in favour of the abolition of the immunity in criminal proceedings, it is clear that the powers of the English courts to strike out unmeritorious and abusive legal proceedings played a large, even, it may be, a predominant, part in their reasoning. Having regard to that feature of the reasoning in Arthur J. S. Hall & Co. v Simons and having regard to the lack of any developed counterpart of the powers of the English courts in Scotland, I have formed the opinion that it would not currently be appropriate, or in the interests of justice in Scotland, to follow that reasoning. However, having regard to the view which I have formed as to the absence of an immunity in relation to solicitors acting as advocates in criminal proceedings, I find it unnecessary to reach a final conclusion on the matter.

[172] Arguments were addressed to us as to the possible impact of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms to any immunity which might be held to exist and be applicable to the circumstances of the present case. I do not consider that it is appropriate for me to comment on those submissions since, in the first place I have held that no immunity exists and that it is accordingly unnecessary for me to do so. In the second place, I consider that it would be inappropriate to attempt to address the issues raised by those arguments in the absence of a certain and particular basis for a decision that an immunity exists. I am unable to identify any such basis.

 


FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord Osborne

Lord Johnston

 

 

 

 

 

 

[2006] CSIH 7

A5555/01

 

OPINION OF LORD JOHNSTON

 

in

 

RECLAIMING MOTION

 

by

 

TREVOR RUSH McCAFFERTY WRIGHT

Pursuer and Reclaimer;

 

against

 

PATON FARRELL and ROBERT PATON and PETER FARRELL

Defenders and Respondents:

 

_______

 

 

 

Act: Peoples, Q.C., McSporran; Bishops (Pursuer and Reclaimer)

Alt: Murphy, Q.C., Shand, Q.C.; Dundas & Wilson (Defenders and Respondents)

 

10 February 2006

 

[173] I have had the opportunity to read the judgment of Lord Osborne in this matter. I grateful adopt his analysis of the submissions made by counsel and I respectfully agree with him with regard to the issue of the cross appeal, the result of which is that I agree that this reclaiming motion falls to be allowed in that respect and the action dismissed.

[174] I have also considered the detailed Opinion of the Lord President, and again I am in general agreement with it.

[175] Such is sufficient for the disposal of the case but I would wish to record some additional observations on various aspects of the arguments presented to us. These observations must be regarded as obiter, being unnecessary for the disposal of the case along the lines I have accepted.

[176] In the first place it seems to me that Lord Osborne has cogently argued that historically solicitors appearing as advocates, originally in the Sheriff Court only, were not covered by any core immunity in respect of freedom from suit for negligence. Since, of course, the case of Batchelor (op cit) the same has not been the case for members of the Faculty of Advocates and that immunity still persists until such time as that case is overruled, or at least reconsidered. Such may be necessary, having regard to the speeches of their Lordships in the case of Hall. It has to be observed that all their Lordships' observations in relation to the issue of immunity of counsel, or advocates, were obiter to the decision in the case which was determined on the basis that core immunity did not apply anyway having regard to the nature of the alleged deficiencies in representation. Obviously Hall (op cit) does not directly apply to Scotland and I note Lord Osborne's observations in relation to the effect of Lord Reid's speech in Rondel in so far as it refers to the position of solicitors in Scotland. I am not so convinced as he is that in effect Lord Reid was not amalgamating the roles of solicitor and counsel into one of advocate and certainly there is a certain logic in that approach, unless one takes the view, historically, that Batchelor confers its immunity by reference to the position of an advocate rather than the scope of the role of advocacy. Again, that is a point which I am no longer convinced is necessarily right.

[177] However, since this case is not concerned with civil immunity I would simply add that in my opinion when the issue of immunity of advocate whether solicitor or counsel is being considered in the round there are a number of factors which might well distinguish the need for immunity in a civil case as opposed to a criminal one.

[178] I offer no further view on the position of an advocate in a civil matter, but I am firmly of the view that if it became necessary for decision, for the reasons given by the minority in the House of Lords in Hall, an advocate, whether solicitor or advocate, conducting a criminal litigation should continue to enjoy immunity from subsequent suit as regards any aspects of advocacy representation.

[179] In my opinion, however responsible may be the role of an advocate in a civil matter, there are additional pressures obtaining in a criminal trial with regard, particularly, to decision-making as regards cross-examination or choice of witnesses and fundamentally focusing on the ever vexed question as to whether an accused should give evidence on his own behalf. The decision-maker in this context should not, in my opinion, have the additional concern that he might be sued for making what is perceived, with hindsight, to have been a wrong decision. It would simply increase the pressures and might well lead to decisions being taken ob majorem cautelam to lessen the risk of subsequent suit.

[180] Secondly, while I recognise that the House of Lords was strongly influenced in Hall by the powers of the court to strike out vexatious litigations in the civil context such do not exist within our own powers to anything like the same extent if at all. That protection that may be available in a civil suit following a criminal trial in England is not available in Scotland. In the criminal context their Lordships seem to be more interested in the issue raised by Hunter (op cit) with regard to whether or not a suit subsequent to a criminal prosecution would inevitably result in a re-trial where the public interest dictates that finality is the most important consideration. I do not find the case of Hunter (op cit) particularly easy but I am influenced by the fact that if civil suit is available following a criminal case it must inevitably involve a re-running of that case in order to prove or establish a remedy, such as the pursuer attempted in this case and, in my view, has failed to achieve on the pleading. For the reasons already discussed it seems to me that any suit emanating from a criminal prosecution against the advocate must contain averments that, but for the negligent representation, an acquittal would at least, on the balance of probabilities, have taken place. That confirms that inevitably there will be a re-run and this, in my opinion, is not in the public interest.

[181] Thirdly, in Anderson (op cit), the court accepted that the law should recognise a ground of appeal against a criminal conviction based on defective or negligent representation by the relevant advocate so as to amount, in the result, to a miscarriage of justice having occurred. That is the essential ingredient. However, in Anderson, the court was careful to point out that while co-operation from the advocate in question, who is being accused of negligence, is desirable in terms of response to any matters raised in the Anderson appeal, he or she is not obliged so to reply and may maintain silence. This right, which is important, might well be compromised to the extent of increasing the number of times that an advocate does not respond for fear of suit, and this again may detract from the interests of justice.

[182] In these circumstances, were it relevant for decision in this case, I would express the view that it is in the public interest that core immunity continues to apply to any advocate, be it solicitor or a member of the Faculty of Advocates, conducting a criminal trial.

[183] Finally, by way of postscript, I do not consider that Article 6 of the Convention on Human Rights has any relevance to the issue of core immunity, being, in my opinion, a matter of substantive right rather than procedural process.

[184] In all these circumstances I would allow the reclaiming motion to the extent of allowing the cross-appeal and dismiss the action.