Debating the immunity of counsel

Two recent High Court hearings show that advocates can no longer be certain of immunity from lawsuits, writes Roger Pearson. The accountability of counsel has been under the gaze of the courts recently. With a steady rise in the number of solicitor advocates, it is a situation which is likely to be significant to both sides of the profession. Inevitably the question will be raised of whether the immunity from lawsuits enjoyed by counsel will extend to solicitor advocates.

The issue of whether solicitor advocates should be treated differently from counsel has already been raised in a non-immunity context in Linford Christie's High Court libel action against John McVicar.

In that case, the Court of Appeal was asked to decide whether a solicitor advocate, who advised that an article was not libellous, should be barred under the Law Society's code of advocacy from representing the party he had advised. The court held that he should not be barred and that, in such circumstances, both solicitors and barristers were governed by the same principles.

Two other recent cases focused specifically on counsel's immunity from lawsuits. In May, vice-chancellor Sir Richard Scott, in the case of Atwell v (1) Perry and Co (2) Barry Stancombe, gave a signpost ruling on a negligence claim against Barry Stancombe. The claim arose from appeal advice given by Stancombe as counsel during the first instance action.

Scott's ruling centred on a High Court master's refusal to strike out any more than two paragraphs of the statement of claim in which Stancombe was alleged to have been unaware of – or to have attributed insufficient importance to – crucial authority in his client's case. On that point, Scott held that for public policy reasons it was right to hold counsel immune. He refused to rule that there was a distinction between formulation by counsel of his concept of the case and his actual conduct of it in court, and held that immunity applied to both.

But it was also argued that Stancombe later went on to wrongly advise that there were no grounds of appeal. As far as that was concerned, Scott said he could see no reason why immunity attributable to pre-trial and court work should be applicable. But for unconnected reasons, he held that this aspect of the claim should also be struck out.

Counsel accountability was back before the courts in July for Connolly-Martin v D, where Mr Justice Sedley allowed an appeal against a ruling striking out a negligence claim. The claim, made against an unidentified counsel, had been struck out by Master Monkaster on the basis that it had no reasonable prospect of success.

But the judge said the asserted facts of the case amounted to a gross and unaccountable error, not committed in court, but in a phase of litigation in which counsel's word had been relied on by the opposite party. Counsel had induced his client to renege on assurances he had given, he added.

He said that while he knew the difficulties of bringing such a case, he was satisfied that neither the present law of negligence nor the principles of immunity from suit rendered it unsustainable.

Paul Wallis of Luton's Giffen Couch & Archer, which acted for the Connolly-Martin appellants, considers the question of immunity extremely significant. He says case law is mounting which increasingly shows that counsel can be held accountable.