Advocates' Immunity. The immunity system

It might be ridiculous to sue your school because you failed your A-levels, or your local hamburger store for not warning you that the coffee was hot, and some might rightly argue that plaintiffs and their lawyers have now reached limits of what is actionable. But there is one group of professionals, who until recently operated a closed shop, who hold themselves out as specialists – and charge accordingly – and yet escape liability for their negligence. I am, of course, referring to learned counsel when in court.

However, with the recent case of barrister James Presland, where the Court of Appeal ruled that he should pay the costs of the parties in the appeal, immunity should be reconsidered.

As everyone knows, when not in court, a barrister (and now of course the solicitor advocate) is like other mortals – he can be sued for negligent advice, just like those instructing him. But when he puts on robes and appears in court, he becomes immune, regardless of the extent of his negligence – see Saif Ali v Sidney Mitchell & Co 1980.

Why should this be? Over the years, a number of dubious if not downright bizarre reasons have been forwarded:

the barrister was not in a contractual relationship with his client and so could not be sued on that basis.

the nature of an advocate's work was so complex it would be unfair to hold him liable.

Both of these reasons have been consigned to the legal rubbish dump. The third reason, public policy, should be too. The public policy argument goes as follows:

barristers should be free to carry out their duties at the court without fear of being sued;

suing a barrister would involve retrying actions;

the cab rank rule requires a barrister to take a case no matter how difficult the client is;

immunity is only part of a general immunity attaching to all parties involved in a trial, including the judge, the jury and the witnesses.

Each of these reasons can be demolished in turn. Concerning the first reason, if there is a conflict of interest between the duty owed to the court and the duty owed to the client, then that might be a legitimate defence to a claim in negligence. There should not be a blanket immunity merely because of the possibility of such a conflict.

As far as the second reason goes, suing a surgeon involves redoing the operation (albeit on paper), suing an auditor involves re-auditing the accounts, and suing a solicitor involves re-running the case.

For the third, professionals are expected to deal with difficult clients, it is part and parcel of the job.

Finally, judges, juries and witnesses are not specifically retained (and paid) by a client and cannot be said to owe a duty of care to the litigant.

It is odd how public policy can protect one institution and yet not to apply to another.

Consider the case of Capital Counties plc and Digital Equipment Co Ltd v Hampshire County Council. In this case, the court was satisfied that it was entirely fair, just and reasonable to impose a duty of care on firemen making decisions in the heat of the moment.

In the case, a decision was taken by a station officer to turn off a sprinkler system. In his view, it was hindering the firefighters. In fact the opposite was the case. The officer was unaware of a fire in the roof void, which would have been contained if the sprinkler system had been left on. The court did not accept that the fire service was entitled to immunity and awarded damages of £15m against the defendants.

Another case is that of Somasundaran v M Julius Melchoir & Co 1988. A barrister and solicitor gave the same advice to their mutual client, one was held liable, but not the other – the barrister escaped liability on the public policy ground.

It is difficult to reconcile these different approaches to public policy. The barrister/advocate holds himself out as having specialist knowledge – he often commands substantial fees (which he retains even if the case settles) and yet he cannot be sued for the most basic error in court. Is it time for change?