Appeal Court extends barristers' immunity beyond courtroom

The Court of Appeal has ruled that the concept of barristers' immunity extends beyond the courtroom door following a case against family lawyer and Labour MP Jean Corston.

In a significant decision, the the Appeal Court has ruled that in some instances lawyers who negotiate pre-trial or mid-trial settlements are protected from any subsequent negligence claim.

Corston, a barrister at St John's Chambers in Bristol and Labour MP for Bristol East since 1992, was taken to court in 1995 by dissatisfied client Lindsey Ann Kelly.

Kelly, represented by Bath firm Longrigg Harris, alleged Corston had been negligent in negotiating a 1991 divorce settlement which left her unable to keep up mortgage payments on her former matrimonial home.

Corston countered that both the conference between Kelly and her husband and the subsequent negotiated settlement were covered by the doctrine of barristers' immunity from prosecution.

Kelly's claim was subsequently struck out but she took her case to the Court of Appeal, where she was represented by barrister Peter Smith QC. Rupert Jackson QC appeared for Corston.

In his decision, Lord Justice Judge said the claim for barristers' immunity could arise only if there was either participation in court proceedings, an intimate connection with the conduct of the case or an attack on the final ruling of a judge. He warned there was no blanket immunity from prosecution for either a barrister or a solicitor who negotiated a settlement outside of a court.

But he said exceptions to this rule applied if a settlement came after a judge had already begun to consider a plaintiff's claim or if a settlement came before a judge for approval.

“Litigation which raises the question of whether the advocate was negligent in the advice leading to any settlement requiring the approval of the judge, is liable to circumnavigate the principle that the judge may not be asked to explain what he has said or done in court,” said Lord Judge.

As Kelly's divorce settlement had been approved by a judge, Corston was considered to be protected from prosecution.

Hickman Rose solicitor Daniel Machover, who is planning to go to the European Court of Human Rights to challenge the concept of barristers' immunity on behalf of client Mohammed Patel, criticised this latest decision: “This appears to be a further sign that the courts are prepared to protect and slightly widen immunity.”