Immunity from Suit

In Hall & Co v Simons [1999] 3 WLR 873 the Court of Appeal upheld the advocate’s immunity from suit for negligent conduct of cases in court, but only because it was bound by authority. The case went to the House of Lords with the blessing of the Court of Appeal where it was heard at the end of March. Judgment is expected in the summer. David Pannick QC, writing in The Times of 11 April, and William Flenley, writing in the Law Society Gazette of 16 March, both think the immunity should be removed. William Flenley wrote “It is hard to see why advocates should be immune from suit for their negligence when brain surgeons are not’, whilst David Pannick said “In 1791 Lord Kenyon, the Lord Chief Justice, dismissed a claim for negligence brought against a barrister. He said that he “believed this action was the first, and hoped it would be the last, of its kind”. The issue has not gone away. The House of Lords should now take the opportunity to remove advocate’s immunity”. Arguments going the other way include: the advocate owes a duty to the court as well as to the client; the risk that advocates may take every possible point to avoid the risk of an action for negligence; advocates have other immunities, such as from defamation for what they say in court; claims would involve reopening the merits of decided litigation and barrister-advocates have a duty to accept instructions from any client under the cab-rank principle.