In the firing line

When the bar's immunity from being sued was abolished, many feared that claims would spiral out of all control, but Brendan Malkin finds the floodgates have not opened – at least not yet

The decision in Hall Simons was heralded as a defining moment in the history of the bar. A barrister's immunity from being sued for negligence in court was abolished, which led to claims that the floodgates would open, that the cost of indemnity cover would rocket and that barristers would be forced to change the way they practise.
Certainly, advocates are now much more in the firing line. Richard de Lacy QC of 3 Verulam Buildings, for example, was roped into a multi-million pound negligence claim against Rowe & Maw as a direct consequence of the ruling (see case study). It was only as a result of the Lords decision in the conjoined appeal of three cases – Hall Simons, Barratt Woolf Seddon, and Harris Schofield Roberts & Hill – that Abbey Life widened its claim to include de Lacy's conduct in court, specifically the nature of his cross-examination.
Then, last week, The Lawyer was contacted by a chartered accountant claiming to have instructed counsel to bring a negligence claim against a barrister whose conduct in court, he alleges, resulted in him losing his case and ruining his career.
However, these do appear to be the exception rather than the rule. Only a handful of cases involving alleged barristers' negligence have reached court, and in only two of those was the barrister found liable.
Speaking on the de Lacy case, one source says: “I am not aware of any claim that has more money at stake since Hall Simons in which an advocate's conduct at trial has been criticised.”
Andrew Hughes, a managing associate in the professional negligence team at Linklaters & Alliance, confirms there are cases of alleged advocates' negligence working their way through to the courts. However, he does not anticipate a large number of claims because of the significant hurdles a claimant still faces on liability and causation.
“Although Hall Simons recognised the conduct of litigation is not the only professional activity requiring delicate judgments under pressure, it remains the case that a claimant will need a strong case to be confident of establishing that an error of judgment in the courtroom amounted to negligent advocacy and that such advocacy caused an unfavourable outcome at trial,” he says.
Christopher Symons QC, head of 3 Verulam Buildings, points to the pressures barristers are uniquely placed under, thus rendering it hard to secure a prosecution against them. “He is making a decision on the spur of the moment and it's a question of balance whether he should call a witness, or approach a case one way rather than another.”
The other factor acting against applicants is that they have to show that the barrister would have achieved a different result but for the advocate's negligence. Therefore, this would involve consulting judges. However, judges cannot be compelled to give evidence and are unlikely to do so.
In addition, in criminal cases clients will have to successfully appeal their conviction prior to suing their counsel, and then have to show they would not have been sentenced but for the conduct of the advocate. There is also the Civil Procedure Rule that a court can give summary judgment in favour of the defendant if it believes the applicant has no chance of success.
Barristers argue that cases against them for allegedly negligent advice, as opposed to their conduct in court, are also few and far between. This also applies to cases against solicitor-advocates, who are subject to the Law Society's Code for Advocacy. This states that they must take proper steps to “keep proper records” – that is with material intimately tied to a court case for which they can be sued as a result of Hall Simons.
Some barristers have claimed that the case will change little because they didn't face many large claims anyway. However, the recent case involving Judge Peter Clark, now a judge on the Midlands circuit and chairman of the Employment Appeal Tribunal, clearly illustrates that the potential for a massive claim is there. As The Lawyer recently reported (13 August), Clark, then a barrister at Devereux Chambers, was found guilty by the Court of Appeal of professional negligence for advice he gave to a road traffic accident victim. As a result Clark, the deputy chairman of the Competition Commission Denise Kingsmill and DJ Freeman are being sued for £1.7m by the claimant. The Lords are considering their application for leave to appeal to them.
The Bar Mutual Management Company is monitoring the claims position as a result of the Lords ruling, but considers it early days to tell whether the premium will be affected. Last week, a spokesman for the fund said it was in no hurry to increase premiums.
The top premiums already run to £5m of cover, but Bar Mutual does report that some barristers have been getting top-ups. Also, some barristers are getting jittery over the decision in Brocklesby applied in Liverpool Roman Catholic Archdiocesan Trust Goldberg (David Goldberg QC of Gray's Inn Tax Chambers), in which the six-year cut-off point in tort cases does not apply if material was deliberately concealed, so it could not feasibly come to the attention of the barrister for some time.
Ben Pilling, a barrister at 4 Pump Court, says: “Barristers would be foolish if they did not retain material going back to the beginning of their practice, and also retain their insurance until they die.”
Barristers have clearly not faced the flood of claims many anticipated. They continue to enjoy strong protection from actions, because the threshold for establishing negligence continues to be very high.
But these are early days, and the examples of de Lacy and Clark illustrate that the landscape is still shifting.

Case studies
Stephen Hesford General Council of the Bar
Barrister Stephen Hesford MP was reprimanded by Judge Jonathan Parker on appeal from a three-month sentence by the Bar Council's disciplinary tribunal. The Bar Council had found Hesford guilty of three charges of professional misconduct.
Hesford had been acting for defendant Stuart Royall in a Crown Court trial set down for 1 May 1997. However, he successfully put back the trial date because, having just become an MP, he was obliged to attend the State Opening of Parliament. But the matter came to a head when Hesford was also unavailable to attend the rescheduled date for the trial in order to attend a debate at the House of Commons. The instructing solicitors were only notified of Hesford's unavailability on the morning of the trial, and Royall not until his arrival in court.
At appeal, the judge accepted Hesford's argument that he owed a duty to both clients and Parliament. Other mitigating points were that no lasting damage was done to Royall as the replacement barrister was fully competent and Royall was acquitted, and that he was not entirely to blame for the late delivery of the messages.
Re P
A barrister, B, was found liable for a £1,500 wasted costs order which was upheld at appeal. The barrister in question, defending D, who had been charged with GBH, presented his client as being of good character by repeatedly comparing her with the complainant. The judge rejected the Crown's application to determine evidence of D's previous convictions and instead decided to discharge the jury. The judge accepted B had not deliberately misled the jury, but had failed to act with the competence reasonably expected of an ordinary member of the bar. This was upheld at appeal before Lord Justice Kennedy and two judges.
B's other submission – that the judge in the wasted costs case should have been replaced as she was both witness and tribunal in the case – was rejected at appeal. However, B's second submission, that he should not have been found guilty to a criminal standard of proof, was upheld by the appeal judges.
Abbey Life Rowe & Maw and Richard de Lacy QC
Claim by insurer Abbey Life that barrister Richard de Lacy, who took silk in 2000, and Rowe & Maw acted negligently in its defence of proceedings brought by Glyne Investments against one of the insurers' businesses, Target Life. Glyne sued in 1993 for a figure understood to be close to £10m after Target terminated its agreement and refused to make commission payments. Since Hall Simons, Abbey Life's statement of claim has been widened to include the claim that de Lacy's cross examination was negligent