Arthur J.S Hall and Co. v. Simons and Barratt v. Ansell and Others v. Scholfield Roberts and Hill

Factual and Procedural Background

The judgment consolidates three separate actions in which clients (“Respondents”) sued their former solicitors (“Appellants”) for alleged negligence in the conduct of civil and family proceedings during 1991. At first instance the claims were struck out because the solicitors invoked the traditional advocate’s immunity from negligence claims arising out of work in court or closely connected with litigation. The Court of Appeal reversed those decisions, holding the claims were arguable. The solicitors appealed to the House of Lords; the Bar Council intervened in support of retaining the immunity.

Legal Issues Presented

1. Whether the long-standing immunity protecting advocates from suits in negligence for work “in court or intimately connected with the conduct of litigation” should be maintained in England and Wales.
2. If the immunity were abandoned, whether any public-policy bar (such as the rule against collateral attacks on previous decisions) would nevertheless preclude claims.

Arguments of the Parties

Appellants’ Arguments (Solicitors)

• Advocates’ overriding duty to the court requires insulation from negligence suits; fear of litigation would encourage “defensive lawyering.”
• The cab-rank rule obliges barristers to accept unpopular clients; without immunity they may refuse risky instructions.
• Permitting claims would relitigate concluded matters, undermining finality and public confidence.
• Parliament tacitly approved the immunity in section 62 Courts and Legal Services Act 1990; any change should be legislative, not judicial.

Intervenor’s Arguments (Bar Council)

• Supported the Appellants, stressing advocates’ unique position in the trial process and similarity to judges and witnesses who already enjoy absolute privilege.
• Warned of increased satellite litigation and insurance costs.

Respondents’ Arguments (Clients)

• The immunity, judge-made in Rondel v. Worsley, is an anomalous derogation from the basic principle that wrongs should be remedied.
• Modern procedural tools (summary judgment, wasted-costs jurisdiction, conditional fees) adequately deter unmeritorious actions.
• Comparative experience (e.g., Canada, United States for defence lawyers) shows no impairment of justice without such immunity.
• Section 6 European Convention on Human Rights guarantees effective access to a court; blanket immunity is disproportionate.

Table of Precedents Cited

Court's Reasoning and Analysis

Six separate speeches analyse the immunity against modern conditions:

• Public-policy balance: Any derogation from the general right to sue must be justified; immunity denies redress but arguably secures fearless advocacy.
• Duty to the court: Majority view—modern professional regulation, wasted-costs orders and summary procedures protect the court without need for immunity.
• Collateral challenge: Abuse-of-process doctrine (Hunter) will prevent unmeritorious relitigation; immunity not required for that purpose.
• Comparative evidence: Commonwealth and EU systems function effectively without immunity; Canadian experience especially persuasive.
• Change in legal culture: Advocates may now contract with clients, advertise, carry insurance and are subject to consumer expectations; retaining immunity appears self-protective and damages public confidence.
• Criminal vs. civil split: A minority (Lord Hope, Lord Hobhouse, Lord Hutton) would keep immunity for criminal advocacy, fearing defensive conduct and disruption of appeals; the majority found such fears speculative and disproportionate.
• Parliamentary stance: Section 62 Courts and Legal Services Act 1990 merely extended, but did not entrench, the immunity; courts remain free to revisit it.
• Human-rights dimension: Blanket immunity impairs the “very essence” of the right of access to a court (Art. 6 ECHR) and is not proportionate.

Holding and Implications

HOLDING: APPEALS DISMISSED.

The House of Lords (by majority) abolished advocates’ immunity from negligence suits in both civil and criminal proceedings; solicitors and barristers stand on the same footing. Future claims may still be struck out as abusive, but not on grounds of professional immunity.

Implications: The decision aligns legal professionals with other occupations, allowing clients to sue for demonstrable negligence. Abuse-of-process principles will police collateral attacks on judgments, while professional regulation and wasted-costs jurisdiction safeguard the court’s interests. No new statutory regime was created; the ruling simply removes a judge-made exception, signalling greater consumer accountability without altering existing standards of professional care.