Neutral Citation Number:  [1998] EWCA Civ 1943
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
The Strand
London

Date: Monday 14 December 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Bingham of Cornhill)

LORD  JUSTICE  MORRITT
and
LORD  JUSTICE  WALLER
- - - - - - - - - - - - -
BETWEEN:

	CCRTF 97/1569/2		
			
	ARTHUR J S HALL & CO	Respondent/Plaintiff	
	- v -		
	MELVYN  KEITH  SIMONS	Appellant/Defendant	
			
	AND  BETWEEN:		
			
	FCR 98/7409/1 & QBENI 98/0109/1		
			
	BARRATT	Appellant/Plaintiff	
	- v -		
	WOOLF  SEDDON	Respondent/Defendant	
			
	AND  BETWEEN:		
			
	FR3 98/7344/1 & QBENI 98/0157/1		
			
	COCKBONE	Appellant/Plaintiff	
	- v -		
	ATKINSON DACRE & SLACK	Respondent/Defendant	
			
	AND  BETWEEN:		
			
	FC3 98/7279/1 & QBENI 98/0746/1		
			
	HARRIS	Respondent/Plaintiff	
	- v -		
	SCHOLFIELD ROBERTS & HILL	Appellant/Defendant	
- - - - - - - - - - - - -
(Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
A P P E A R A N C E S:

CCRTF 97/1569/2

MR RUPERT JACKSON QC, MR NORMAN WRIGHT and MISS SIAN MIRCHANDANI
(instructed by Messrs Weightmans, Liverpool L3 9QW) appeared on
behalf of THE RESPONDENT

MR ANDREW EDIS QC (instructed by Messrs Hill Dickinson, Liverpool
L2 9XL) appeared on behalf of THE APPELLANT

FC3 98/7409/1 & QBENI 98/0109/1

MR MARTIN POINTER QC and MR STEPHEN TROWELL (instructed by Messrs
Cooper Whiteman, London WC1N 2PL) appeared on behalf of THE APPELLANT

LORD MESTON QC and MR RUPERT JACKSON QC (instructed by Messrs Reynolds
Porter Chamberlain, London WC1V 7HA) appeared on behalf of
THE RESPONDENT/APPLICANT

FC3 98/7344/1 & QBENI 98/0157/1

THE APPELLANT appeared in person

MR RUPERT JACKSON QC and MR CHRISTOPHER CHRITCHLOW (instructed by
Messrs Wansbroughs Willey Hargrave, Leeds LS1 2LW) appeared on behalf
of THE RESPONDENT/APPLICANT

FC3 98/7279/1 & QBENI 98/0746/1

MR PETER DUCKWORTH and MR NICHOLAS BOWEN (instructed by Messrs Stephens & Scown, Exeter EX1 1RS) appeared on behalf of THE RESPONDENT

MR RUPERT JACKSON QC and MR JEFFREY BACON (instructed by Messrs Bond
Pearce, Exeter EX1 1LA) appeared on behalf of THE APPELLANT
- - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:  
1.  In these four appeals, listed and heard together, the following questions of law arise: to what extent and in what circumstances does a lawyer's immunity from suit in relation to the allegedly negligent conduct of a case in court protect him against claims for allegedly negligent acts and omissions which take place out of court?  Does a lawyer, if not otherwise immune from a claim in negligence by a client, become so when the court approves a consent order in any proceedings, but particularly in matrimonial proceedings in relation to ancillary relief?  Is it in such circumstances an abuse of the process of the court to claim damages against a lawyer for alleged negligence leading to the making of a consent order?  In the course of argument it became clear that all these questions were closely interrelated.

	This is the judgment of the court, to which all members have very substantially contributed.

Immunity
2.	  Our primary sources on lawyers’ immunity are two relatively recent decisions of the House of Lords in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co  [1980] AC 198.  These cases clearly establish four propositions:

	(1)  A lawyer acting as an advocate is immune from any claim for damages for negligence by a client arising out of almost anything done or omitted in the course of conducting a case in court.  For convenience we refer to this as "forensic immunity".

	(2)  The rationale of forensic immunity is recognised to be public policy principally (a) to prevent the re-litigation, otherwise than on appeal, of issues already concluded adversely to the plaintiff  by court decision; (b) as part of the general immunity from civil liability which attaches to all persons who participate in proceedings before a court of justice; and (c) because an advocate owes a duty to the court as well as to his client and should not be inhibited, through apprehension of an action by his client, from performing his duty fearlessly and independently.

	(3)  Since forensic immunity derogates from the fundamental principle that a professional person is answerable to a client for any loss caused to the client by any want of the skill and care ordinarily to be expected from such a professional person, the scope of the immunity should be restricted to cases in which public policy grounds call for its recognition.

	(4)  While forensic immunity extends beyond the limits expressed in (1) above, it applies only "where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.  The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice.”

3.	Proposition (1) is the ratio of Rondel v Worsley, in which case counsel was only instructed by  the plaintiff to conduct his defence at his criminal trial after the hearing had begun, and the plaintiff's allegations of negligence related directly to the manner in which counsel had, in court, conducted the defence.  That forensic immunity should extend to advocates whether they were solicitors or barristers was held in Rondel v Worsley at pages 232, 267, 284 and 294, and in Saif Ali at pages 215, 223, 224 and 227.  It is now plain, from section 62 of the Courts and Legal Services Act 1990, that any person other than a barrister, lawfully doing work in respect of which a barrister lawfully doing the same work would be immune, enjoys the same immunity.

4.	Proposition (2) is derived from the speeches of the majority in Saif Ali, particularly at pages 212, 222, 227 and 230, where the public policy considerations relied on in Rondel v Worsley were discussed and refined.

5.	Proposition (3) is based on Rondel v Worsley at pages 227, 244, 247, 253-4, 284 and 289, and on the speeches of the majority in Saif Ali at pages 213, 214, 215, 218, 219, 224 and 230.  

6.	Proposition (4) is based on the speeches in Saif Ali at pages 215, 224, 231 and 232, where the majority expressly adopted a passage in the judgment of McCarthy P in the New Zealand Court of Appeal in Rees v Sinclair [1974] 1 NZLR 180, 187, which included the words quoted.  In Rees v Sinclair, as is evident from the report at [1973] 1 NZLR 236, the defendant was a solicitor and barrister who had acted for the plaintiff in matrimonial proceedings and had refused to plead or advance allegations against the plaintiff’s wife for which he considered there to be no justification.

7.	It may of course be that the House of Lords will hereafter choose to review and modify the rulings given in these two leading cases, and it is noteworthy that in Saif Ali at page 223 Lord Diplock expressed regret that counsel for the plaintiff had not made a more radical challenge to the authority of Rondel v Worsley.  We understand further that the European Court of Human Rights may be called upon to consider the compatibility of the decision in Rondel v Worsley with the European Convention.  But we must treat these cases as binding authority for the four propositions we have set out.  Those propositions do not, however, answer the first question posed above, which relates to the outer limits of forensic immunity, beyond the core immunity which protects an advocate against claims arising from the conduct of a cause in court.  More particularly, the issue arises (in all four appeals) whether forensic immunity, on a fair application of McCarthy P's rule adopted by the House of Lords, affords immunity to a lawyer who advises that a case be compromised, where the advice is accepted and the case is settled.  Is the advice to settle "so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing"?  Or can it depend on the facts of a given case whether advice to settle is so intimately connected or not?  And does it matter when and where the advice is given?  Does it matter whether the lawyer is acting as an advocate or in the role which solicitors have traditionally filled when instructing counsel?

8.	In Rondel v Worsley certain of their Lordships gave examples of activity which might, or might not, be covered by forensic immunity and, as Lord Wilberforce pointed out in Saif Ali at pages 213-4, there was some diversity in those opinions which the House in Saif Ali was concerned to narrow.

9.	In Saif Ali the negligence alleged was failure to join (or advise the joinder of) the correct defendant to a running down claim before the expiry of the limitation period, and the issue of immunity arose on a third party claim by the defendant solicitors against counsel.  In the Court of Appeal Bridge LJ, applying the Rees v Sinclair test, thought the test should be construed narrowly but was still   quite satisfied that the barrister was entitled to the benefit of forensic immunity: [1978] QB 95.  In the House of Lords, all three members of the majority (Lord Wilberforce at page 216, Lord Diplock at page 224, and Lord Salmon at page 232) considered the claim to be well outside the scope of  forensic immunity.  In addition to adopting and relying on the ruling of McCarthy P already quoted, all three members of the majority gave guidance on the scope of forensic immunity.  Referring to this ruling Lord Wilberforce (at page 215) said:

		"I do not understand this formulation as suggesting an entirely new test, i.e., a double test requiring (a) intimate connection with the conduct of the cause in court and (b) necessity in the interests of the administration of justice.  The latter words state the justification for the test but the test lies in the former words.  If these words involve a narrowing of the test as compared with the more general words 'conduct and management' I think that this is right and for that reason I suggest that the passage, if sensibly, and not pedantically, construed, provides a sound foundation for individual decisions by the courts, whether immunity exists in any given case.  I should make four observations.  First, I think that the formulation takes proper account, as it should, of the fact that many trials, civil and criminal, take place only after interlocutory or pre-trial proceedings. At these proceedings decisions may often fall to be made of the same nature as decisions at the trial itself: it would be illogical and unfair if they were protected in the one case but not in the other. Secondly, a decision that a barrister's liability extends so far as I have suggested necessarily involves that it does not extend beyond that point.  In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill.  The immunity as regards litigation is an exception from this and applies only in the area to which it extends.  Outside that area, the normal rule must apply.  Thirdly, I would hold that the same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister. Fourthly, it is necessary to repeat that the rule of immunity is quite distinct from the question what defences may be available to a barrister when he is sued.  It by no means follows that if an error takes place outside this immunity area, a liability in negligence arises."

10.	    On the application of McCarthy P's ruling Lord Diplock said (at page 224):

		"So for instance in the English system of a divided profession where the practice is for the barrister to advise on evidence at some stage before the trial his protection from liability for negligence in the conduct of the case at trial is not to be circumvented by charging him with negligence in having previously advised the course of conduct at the hearing that was subsequently carried out.

		It would not be wise to attempt a catalogue of before-trial work which would fall within this limited extension of the immunity of an advocate from liability for the way in which he conducts a case in court."

	    Lord Salmon (at page 230) said:

		"I cannot, however, understand how any aspect of public policy could possibly confer immunity on a barrister in a case such as the present should he negligently fail to join the correct persons or to advise that they should be joined as defendants; or for that matter should he negligently advise that the action must be discontinued.  It seems plain to me that there could be no possibility of a conflict between his duty to advise his client with reasonable care and skill and his duty to the public and to the courts.  I do not see how public policy can come into this picture ....  Once it is clear that the circumstances are such that no question of public policy is involved, the prospects of immunity for a barrister against being sued for negligently advising his client vanish into thin air, together with the ghosts of all the excuses for such immunity which were thought to exist in the past."

11.  With reference to observations which he had made in Rondel v Worsley [1967] 1 QB 443 in the Court of Appeal, Lord Salmon said (at page 231):

		"I may have put the case too high if I used words which might give the impression that counsel's immunity always extended to the drafting of pleadings and to advising on evidence.  I should have said that the immunity might sometimes extend to drafting pleadings and advising on evidence.  If in an advice on evidence counsel states that he will not call Y as a witness whom he believes his client wishes to call solely to prejudice his opponent, counsel is immune on grounds of public policy from being sued in negligence by his client for advising that Y must not be called or for refusing to call him.  In such a case the advice would be so closely connected with the conduct of the case in court that it should be covered by the same immunity.  It would be absurd if counsel who is immune from an action in negligence for refusing in court to call a witness could be sued in negligence for advising out of court that the witness should not be called.  If he could be sued for giving such advice it would make a travesty of the general immunity from suit for anything said or done in court and it is well settled that any device to circumvent this immunity cannot succeed: see, e.g., Marrinan v Vibart [1963] 1 QB 234; [1963] 1 QB 528."

	
Lord Salmon considered (at page 231) that it could only be 

		“in the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court; and this case is certainly not amongst them.”

12.	The majority in Saif Ali, particularly Lord Diplock and Lord Salmon, intended that forensic immunity in respect of work done out of court should be recognised restrictively, and only where a clear public policy justification was shown.  The only pre-trial work expressly accepted as attracting immunity was advice given by an advocate on the calling of evidence which, if given at trial, would attract immunity.  We infer that the House would have accepted a pre-trial decision by an advocate that a certain claim or defence should not, on  strategic or professional grounds, be advanced or pleaded as similarly protected.  We do not think the majority would have favoured a comprehensive or definitional approach to the question whether pre-trial work of a given kind should attract immunity, as is evident from the way in which Lord Diplock posed the question for decision in the appeal before the House (at page 219):

		“What is needed is to identify those reasons based on public policy which were held to justify a barrister’s immunity from liability for negligence for what he did in court during the trial of a criminal case and, having done so, to decide whether they suffice to justify a like immunity when advising a client, through his solicitor, as to who should be made a party to a proposed civil action and when settling pleadings in the action in conformity with that advice.”

Thus, when any advocate claims to be immune in respect of any specific thing which he has done or 
omitted to do, it is necessary to test that claim by reference to that specific act or omission and to examine the public policy grounds which may be relied on to support the recognition of immunity in that instance.

13.	Both Lord Wilberforce and Lord Diplock recognised that the undesirability of re-litigating the same issue was a public policy ground of much reduced weight where the case in question had never come to trial.  At page 214 Lord Wilberforce said:

		“Furthermore, if the principle is invoked that it is against public policy to allow issues previously tried (between the client and his adversary) to be re-litigated between client and barrister, it may be relevant to ask why this principle should extend to a case in which by the barrister’s (assumed) fault, the case never came to trial at all.  These two considerations show that the area of immunity must be cautiously defined.”

Lord Diplock (at page 223) said:

		“My Lords, it seems to me that to require a court of co-ordinate jurisdiction to try the question whether another court reached a wrong decision and, if so, to inquire into the causes of its doing so, is calculated to bring the administration of justice into disrepute.  Parliament indeed itself stepped in to prevent a similar abuse of the system of justice by convicted criminals in bringing civil actions for libel against those who described them as having been guilty of the crimes of which they had been convicted: see Civil Evidence Act 1968, section 13.  A consequence of the decision of this House in Rondel v Worsley [1969] 1 AC 191 was to prevent its happening in actions for negligence against barristers.

		A similar objection, it may be mentioned, would not apply in cases where an action has been dismissed or judgment entered without a contested hearing, and there is no possibility of restoring the action and proceeding to a trial.  If the dismissal or the entry of judgment was a consequence of the negligence of the legal advisers of a  party to the action, a claim in negligence against the legal advisers at fault does not involve any allegation that the order of the court which dismissed the action or entered judgment was wrong.”

14.	The minority in the House understood the decision of the majority to exclude advice on settlement from the scope of forensic immunity.  Lord Russell of Killowen (at page 234) said:

		“I can find no justifiable line to be drawn at the door of the court, so that a claim in negligence will lie against a barrister for what he does or omits negligently short of the threshold though not if his negligent omission or commission is over the threshold.  His immunity from claims of negligence should (granted that it is to exist at all) extend to areas which affect or may affect the course of conduct of litigation, in which areas are to be found the public duty and obligation of the barrister to participate in the administration of justice.  And this should be so even if the result of the alleged negligence is that litigation does not in fact come about.  A decision which shapes, or may shape, the course of a trial should be within the umbrella (or blanket) of freedom from claims whether it is arrived at before trial or during it.  This must include advice on settlement: advice on evidence: advice on parties: to list only examples.  A barrister is offered an opportunity in the course of a trial to add a party: he misunderstands the case and allegedly negligently declines the opportunity: as I understand Rondel v Worsley [1969] 1 AC 191 he is immune from the claim.  Is there any reason for not holding him also immune from a claim for not originally adding that party?  I think not.”

Lord Keith of Kinkel (at page 235) was of the same mind:

		“A barrister’s duty to the court and the due administration of justice has to be kept firmly in view when he directs his mind to whether an action should be brought and against what parties, to whether an action should be settled or abandoned and to advising on evidence and on the discovery of documents.  It is true that decisions on such matters normally are taken in situations offering more opportunity for reflection than is present in face of the court in the course of a trial.  But that might well mean that the decision is less instinctively correct in the light of the barrister’s duty to the court and more likely to be influenced by thoughts of the action which the client, in the absence of an immunity, might take.  

		I am therefore of opinion that the grounds of this aspect of public interest extend beyond the actual conduct of a case in court and are applicable to all stages of a barrister’s work in connection with litigation, whether pending or only in contemplation.”

But this was a minority view, and the majority’s disagreement with it gave rise to Lord Keith’s dissent.  As he observed (at page 237):
          
		“The suggested restriction of the immunity would presumably exclude from its scope all cases relating to contemplated litigation which did not actually reach the stage of a hearing in court, and all litigation settled, compromised or abandoned.  In other cases the suggested restriction would, in my opinion, prove difficult to apply in practice and would almost inevitably require inquiry into the facts.  It would seldom, if ever, be possible to decide the issue of immunity upon an application for striking out.  So the objective of relieving the barrister of any apprehension of contentious litigation regarding the conduct of his cases would not be achieved.”

He concluded that the negligence alleged against the barrister took place “in connection with his conduct of litigation” and that accordingly the barrister was immune from suit.

15.	There is nothing in these cases to suggest that anyone is immune in relation to anything done (or omitted) out of court if he would not have been immune in relation to the same thing done (or omitted) in court.  These authorities furthermore stress that the immunity is an advocate’s immunity.  Thus a solicitor or any other qualified advocate may be immune.
Collateral challenge as an abuse of process

16.	In so far as forensic immunity rested on the undesirability of re-litigating, between different parties, an issue already decided by a court of competent jurisdiction, the need for such immunity 
was eroded by the unanimous decision of the House of Lords in Hunter v Chief Constable of the West Midlands and Others [1982] AC 529.  In that case the plaintiff Hunter claimed damages against two Chief Constables whom he alleged to be vicariously responsible for physical assaults which he claimed had been inflicted upon him by police officers at or before the time of his oral admission of murder.  At his criminal trial for murder the question whether Hunter had been the victim of such assaults by the police had been directly in issue in a protracted voire dire and in the judge’s direction to the jury.  In his ruling on the voire dire the judge, applying the criminal burden of proof, had been sure that Hunter had not been assaulted by the police as he claimed.  The jury convicted Hunter and were taken thereby to have been similarly satisfied.  Hunter appealed to the Criminal Division of the Court of Appeal against his conviction, but made no complaint about the judge’s ruling on the voire dire.  By his civil action Hunter was concerned not to recover damages (which he could have done, subject to argument on quantum, against the Home Office, which accepted liability) but to throw doubt on the soundness of his conviction.  The Chief Constables applied to strike out the action, first on grounds of estoppel per rem judicatam and secondly as an abuse of process.  

The House found it unnecessary to hear argument on estoppel per rem judicatam (or issue estoppel) and concluded, without calling on the Chief Constables to argue, that the proceedings were an abuse of the process of the court.

17.	At the outset of his leading speech, with which the other members of the House agreed, Lord Diplock explained the scope of the decision (at page 536):

		“My Lords, this is a case about abuse of the process of the High Court.  It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.  The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique.  It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

He continued (at page 541):

		“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made 

		My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms.  It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case.  But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A L Smith LJ in Stephenson v Garnett [1898] 1 QB 677, 680 - 681 and the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App.Cas. 665, 668 which are repeated by Goff LJ in his judgment in the instant case.  I need only repeat an extract from the passage which he cites from the judgment of A L Smith LJ:
   
			“the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.”

The passage from Lord Halsbury’s speech deserves repetition here in full:

		“..I think it would be a scandal  to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.””

18.	The proper method of attacking the decisions of the judge and the jury at the criminal trial would have been by an appeal to the Criminal Division of the Court of Appeal (page 541).  A collateral challenge to those decisions in a later civil action was likely to be an abuse of the process of the court unless the plaintiff had come into possession of fresh evidence which entirely changed the aspect of the case.  This exception was derived from the speech of Lord Cairns LC in Phosphate Sewage Co. Limited v Molleson (1879) 4 App. Cas. 801 at 814.

19.	We would stress that Lord Diplock was dealing with one example of abuse of process.  We consider that the collateral challenge principle may apply in other situations, in which the court has made an order or entered judgment by consent, particularly where it has specifically approved the terms of the order.  We review some examples below.

Disposal of proceedings without a full hearing.

20.	The compromise of proceedings may involve any one of many different procedures; see, generally, Foskett: The Law and Practice of Compromise (4th edn.,1996); Green v Rozen [1955] 1 WLR 741.  Adult parties of sound mind may ordinarily settle proceedings by an agreement made wholly out of court.  This was not done in any of the four cases before us.  They may for a variety of reasons choose to embody their agreement in a consent judgment of the court; this will not in the ordinary way call for any exercise of judgment by the court: Foskett, op. cit., chapter 16, para. 16-02; Noel v Becker (Practice Note) [1971] 1 WLR 355.  This procedure was adopted in one of the cases before us.  If they do choose to embody their out of court agreement in a court order, the parties may agree that their agreed obligations are scheduled to an order in Tomlin form.

21.	By contrast, a claim by or on behalf of a person under disability may not be validly compromised without the approval of the court: RSC Order 80 rule 10.  Obtaining the approval of the court in such cases is no mere formality: see paragraphs 80/11/10 - 10A of the 1999 White Book.  A compromise made on behalf of unborn or unascertained persons similarly requires the approval of the court, and again the obtaining of approval is not a formality: see RSC Order 15 rule 13(4) and para. 15/13/10 of the 1999 White Book.

22.	In the case of trustees and executors, an order of the court may be sought approving a sale, purchase, compromise or other transaction: see RSC Order 85 rule 2(3)(d).  Under the Insolvency Act 1986 an administrator (section 14(3)) or a receiver or manager (section 35) or the trustee of a bankrupt’s estate (section 303) may apply to the court for directions, and a liquidator may invite the court to determine a question or exercise certain powers; such applications may be made primarily for the protection of the applicant; in many such cases there will be no full contested hearing, but the court will make an order on the material laid before it.  The same is true where the court is asked to appoint a receiver proposed by a creditor in reliance on an affidavit of fitness: Halsbury, Laws of England, (4th edn 1996) vol.7 (2), para. 1349.

	It is unnecessary to multiply examples.  But there is one form of consent order , in relation to ancillary relief in matrimonial proceedings, which is particularly germane to three of the appeals before us.

Consent orders for ancillary relief

23.	Sections 23, 24 and 24A of the Matrimonial Causes Act 1973 empower the court to make orders of various descriptions in connection with divorce proceedings.  These include orders for the making of periodical payments and for the payment of lump sums.  Section 25 of the 1973 Act imposes a duty on the court in deciding whether to exercise its powers under sections 23, 24 or 24A and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare of any child of the family while a minor.  Section 25(2) provides that as regards the exercise of some of these powers in relation to a party to the marriage the court shall in particular have regard to a number of listed matters, which include the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, and other matters such as the financial needs, obligations and responsibilities which each of the parties has or is likely to have, the standard of living enjoyed by the family before the breakdown of the marriage, the age of each party to the marriage and the duration of the marriage, any physical or mental disability to which either of the parties is subject, the contribution which each of the parties has made or is likely in the future to make to the welfare of the family, the conduct of each of the parties, if that is such that it would be inequitable to disregard it, and the value to each of the parties to the marriage of any benefit (such as a pension) which by reason of the dissolution or annulment of the marriage a party will lose the chance of acquiring.

24.	Where parties to matrimonial proceedings were agreed on the financial arrangements to take effect between them but wished their agreement to be embodied in an order of the court, it seems that a practice grew up of submitting the agreed terms to the court in writing for approval and embodiment in a court order without any personal attendance.  This practice was disapproved by the Court of Appeal in Jenkins v Livesey (formerly Jenkins) [1984] FLR 452, where the court indicated that in any ordinary circumstances an attendance before the registrar was necessary to enable answers to be given to any queries that he might have in the course of exercising his jurisdiction to approve the agreed terms.  In a Practice Direction (Family Division: Financial Statement) [1984] 1 WLR 674, a direction was given on the material to be laid before the court when approval was sought under section 25 of the 1973 Act.  The effect of the Court of Appeal ruling was, however, promptly modified by the enactment in July 1984 of a new section 33A of the 1973 Act which provided:

		“(1)  Notwithstanding anything in the preceding provisions of this Part of this Act, on an  application for a consent order for financial relief the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application.”

25.	When Jenkins v Livesey  reached the House of Lords it was made clear that for reasons of public policy it was not open to parties, whether represented by lawyers or not, to disregard or contract out of the terms of section 25 of the 1973 Act, and that nothing in section 33A or the 1984 Practice Direction in any way modified the duty of the parties to make full and frank disclosure of all relevant matters before a consent order was made: [1985] AC 424 at pages 441, 444 and 445.

26.	The Matrimonial Causes (Amendment) Rules 1984 inserted a new rule 76A into the Matrimonial Causes Rules 1977: this provided that with every application for a consent order for financial relief there should be lodged a statement of information containing certain prescribed information.  The terms of this new rule were varied by the Matrimonial Causes (Amendment No.2) Rules 1985, which required information to be given of some of the matters specified in section 25(2) of the 1973 Act, such as the age of each party and the duration of the marriage, and an estimate in summary form of the approximate amount or value of the capital resources and net income of each party, but did not require information of some other matters, such as the standard of living enjoyed by the family before the breakdown of the marriage and any physical or mental disability of either of the parties to the marriage.  Practice Direction (Financial Provision: Consent Order) [1986] 1 WLR 381 set out a suggested form in which the information referred to in Rule 76A might be conveniently set out.  The form was brief and simple and, although calling for details of any other especially significant matters, provided little space for elaboration of the information required.  The suggested form was modified somewhat by Practice Direction (Financial Provision: Consent Order) (No.2) [1990] 1 WLR 150, but the same comments apply.  Rule 76A has now been superseded by Rule 2.61 of the Family Proceedings Rules 1991, which contain in Form M.1 a form of statement of information for a consent order: more space is now provided for inclusion of details, but the statement remains brief and simple.

27.	It is clearly established that 

		“Financial arrangements that are agreed upon between the parties for the 	purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived.  Their legal effect is derived from the court order ” (see de Lasala v de Lasala [1980] AC 546 at 560; Thwaite v Thwaite [1982] Fam. 1 at 7; Jenkins v Livesey, above, at 435).

A party who has consented to an order is not precluded from seeking to challenge or set aside the order where fraud or misrepresentation or non-disclosure or a fundamental change of circumstances has occurred: see Barder v Caluori [1988] AC 20; Harris (formerly Manahan) v Manahan) [1996] 4 All ER 454.  But substantial grounds for a challenge must be shown.  Hence the salutary warning given by Lord Oliver of Aylmerton in Dinch v Dinch [1987] 1 WLR 252 at 255 where he said:

		“I feel impelled once again to stress in the most emphatic terms that it is in all cases the imperative professional duty of those invested with the task of advising parties to these unfortunate disputes to consider with due care the 	impact which any terms that they agree on behalf of their clients have and are intended to have upon any outstanding application for ancillary relief and to ensure that such appropriate provision is inserted in any consent order made as will leave no room for any future doubt or misunderstanding or  saddle the parties with the wasteful burden of wholly unnecessary costs.  It is, of course, also the duty of any court called upon to make such a consent order to consider for itself, before the order is drawn up and entered, the jurisdiction which it is being called upon to exercise and to make clear what claims for ancillary relief are being finally disposed of.  I would, however, like to emphasise that the primary duty in this regard must lie upon those concerned with the negotiation and drafting of the terms of the order and that any failure to fulfil such duty occurring hereafter cannot be excused simply by reference to some inadvertent lack of vigilance on the part of the court or its officers in passing the order in a form which the parties have approved.”

28.	Different judges have, unsurprisingly, described the function of the court in making a consent order under section 25 where the parties have agreed terms in somewhat different ways.  Bush J was, in our view, right to describe the proper approach of the court in such circumstances as a broad rather than a particular one (Dean v Dean) [1978] Fam. 161 at 172, and we agree with Waite LJ in Pounds v Pounds [1994] 1 WLR 1535 at 1540 that it is only if a broad appraisal of the parties’ financial circumstances as disclosed to it in summary form puts the court on inquiry that the court should probe more deeply.  It is doubtless true, as Ward LJ pointed out in Harris (formerly
Manahan) v Manahan above, at page 462 that judges rely on practitioners’ help.  It nonetheless remains true that 

		“The court has an overriding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed”.  (Peacock  v Peacock [1991] 1 FLR 324 at 328 per Thorpe J)

The same point was clearly made in Pounds v Pounds by Waite LJ at 1537 - 8 and by all three members of the Court of Appeal in Kelley v Corston [1998] QB 686 at 690 (Judge LJ), 710 (Pill LJ) and 714 (Butler-Sloss LJ).

Forensic immunity: the decided cases

29.	Since the decision of the House of Lords in Rondel v Worsley, a number of cases have been decided here and abroad in which lawyers have been held entitled to avail themselves of the protection afforded by forensic immunity:

	1.  In Biggar v McLeod [1978] 2 NZLR 9 the defendant, a barrister and solicitor, had acted for the plaintiff in matrimonial proceedings which had been compromised with her agreement after the evidence in the case had been heard at a trial.  She complained that the proceedings had been settled 	on terms other than those agreed with her, and issued proceedings against the defendant.  At first instance the judge dismissed the plaintiff’s action on the basis that the defendant had been immune from suit for negligence. The Court of Appeal agreed.  Applying the Rees v Sinclair test, the Court of Appeal held that the settlement of the proceedings during the trial was “part and parcel of the work of counsel in carrying forward the proceedings to a conclusion” (page 12) and “part and parcel of the management of the trial” (page 14).  The case was only concerned with settlement during a trial.  At this time the House of Lords had not yet heard the appeal in Saif Ali.

	2.  In Giannarelli v Wraith (1988) 62 ALJR 611, three men had been charged and convicted of perjury as a result of evidence which they had  given to Commonwealth and Victorian Royal Commissions into employment matters.  Appeals against conviction were ultimately successful on the ground that under a Commonwealth statute the evidence which they had given to the Royal Commissions was inadmissible against them in criminal proceedings.  They sued three barristers who had represented them at the criminal trial, complaining of their failure to object to the inadmissible evidence, without which they would not have been convicted.  By a bare majority, the High Court of Australia upheld the barristers’ claim to immunity, regarding the failure to object to the reception of the evidence as “an incident of the conduct and management of the case in court” (page 615).

	3.  In Keefe v Marks [1989]16 NSWLR 713 a personal injury plaintiff had recovered damages but had been denied interest, both at first instance and on appeal, because no such claim had been pleaded or made.  He issued proceedings against his solicitor, complaining that his failure to recover interest was the result of the solicitor’s negligence, and the solicitor compromised that claim.  The solicitor then, however, issued proceedings against counsel, claiming an indemnity against the loss he had suffered, and counsel claimed the benefit of forensic immunity.  The Court of Appeal of New South Wales, by a majority, held the claim of immunity to be a good one: it appeared that counsel had not been instructed to advise or to settle the statement of claim, but only to appear at the hearing; and it was held that preparation of a case out of court could not be divorced from presentation in court since the two activities were inextricably interwoven.

	4.  In Landall v Dennis Faulkner and Alsop and others [1994] 5 Med. LR 268 , the plaintiff had compromised his road accident claim in reliance on advice given at the door of the court by a medical consultant (the third defendant), his counsel (the second defendant) and his solicitors (the first defendant).  The hopeful prognosis upon which the settlement was based was not in the event borne out, and the plaintiff claimed damages against the three defendants for negligence.  All claimed to be immune from suit.  The consultant’s claim was upheld, it would seem under the general privilege protecting those who give, or prepare to give, evidence in court, and also on application of the Rees v Sinclair test.  Counsel’s claim was upheld by analogy with the ruling in Biggar v McLeod.  The judge held (at page 275) that any act or omission on the part of counsel between delivery of his brief at the end of November 1986 and the hearing in the middle of February 1987 was so intimately connected with the February hearing as to be subject to immunity.  The claim against the solicitors was struck out as vexatious and an abuse of process, because no distinction was to be drawn between their position and that of counsel and to allow the matter to proceed against them would result in a blatant outflanking of counsel’s immunity.

	5.  The plaintiff in Bateman v Owen White and Another [1996] 1 PNLR 1 had been convicted at first instance but eventually acquitted on appeal.  He sued the solicitors and counsel who had represented him at his trial, complaining that they had failed to object to inadmissible evidence.  On application of the solicitors, counsel taking no active part, the judge struck out the plaintiff’s claim on the ground that the solicitors were immune from suit in relation to the matters of which complaint was made.  Leave to appeal against this decision was refused: it was held that “the substance of the matter, given the special nature of the objection to admissibility which was available in the present case, is the failure to raise that objection at the trial rather than the previous negligence which is also alleged”.  Accordingly, the complaint was held to relate to the conduct of the trial.  No reference was made to any distinction between solicitors and barristers (pages 6 - 7). The decision bears a close resemblance to that in Giannarelli.

	6.  The plaintiff in McFarlane v Wilkinson and Another [1996] 1 Lloyd’s Rep. 406 had sued defendants in common law negligence.  A preliminary issue was tried whether the defendants in that action owed him a duty of care.  At first instance the judge held that they did. The Court of Appeal reversed that decision.  Having lost that action, the plaintiff sued leading and junior counsel who had represented him in that case complaining that they had been negligent in failing to include in his action a claim for breach of statutory duty.  This complaint related only to the period between the successful outcome at first instance and the unsuccessful outcome on appeal.  It was held that this complaint fell squarely within the scope of forensic immunity as defined by the House of Lords in Saif Ali.

	7.  The defendant in Keegan Alexander Tedcastle and Friedlander v Hurst [1997] DCR 481 complained that earlier proceedings had been unsuccessful as a result of inadequate research conducted by her advocate.  The advocate claimed immunity, and the claim was upheld. The judge held (at page 484): 	  

		“In my view the preparation of the case for the High Court and, in particular,  the legal research incidental thereto was work undertaken by Mr Vickerman as a barrister.  It was work which was so intimately connected with the conduct of the litigation that it comes within the scope of the protection.”

	8.  In Yates Property Corporation Pty Limited v Boland and Others (1997) 145 ALR 169 the plaintiff made complaints against a firm of solicitors and against counsel whom he had retained in earlier proceedings.  In the course of a long judgment, all his complaints of negligence were dismissed.  There was also, however, a claim for forensic immunity advanced on behalf of counsel: the judge found (at page 221) that all of the allegations of negligence made against them, realistically analysed, related either to work done in court or to work done out of court which led to decisions affecting the conduct of the earlier proceedings.  He accordingly found that they were entitled to immunity.

	9.  Kelley v Corston [1998] QB 686 is a recent decision of the Court of Appeal to which much attention was devoted in argument.  The defendant, a barrister, had been instructed to represent the plaintiff at a hearing of the plaintiff’s claim for financial relief.  A conference between the plaintiff and counsel took place on the day before the hearing.  On the day of the hearing both parties, and their representatives, attended at court and a compromise agreement was reached, embodied in a consent order by the deputy district judge.  Thereafter the plaintiff issued proceedings against the barrister claiming damages for negligence in “negotiating and advising the plaintiff to accept a settlement of her claim for ancillary relief against her husband”.  The critical allegation made by the plaintiff, as understood by the Court of Appeal (page 690), was that the overall effect of the settlement had left the plaintiff unable to finance the repayments of the mortgage on the former matrimonial home after it had been transferred into her name.  The barrister applied to strike out the claim on the basis that she was protected by forensic immunity.  All three members of the Court of Appeal upheld the barrister’s claim to forensic immunity, but on different grounds.

	Judge LJ, giving the first judgment, did not conclude that the barrister’s conduct in settling the litigation was covered by immunity.  He said:

		“In my judgment the settlement of litigation is not normally encompassed within the principles on which the immunity of the advocate is based.  None of the relevant authorities requires and there are no public policy considerations which justify a blanket immunity from suit for negligent advice to a client which results in a settlement of his claim, whether the advice is given by counsel or a solicitor (whether advocate or not) and whether the settlement is reached before the hearing or at the door of the court.”

	To this general statement he acknowledged two exceptions: the first where a case was compromised after the trial had begun; and the second where a settlement was subject to or required the approval of the court.  In his judgment the barrister was entitled to claim immunity in that case because the settlement had required and received the approval of the court.

	Pill LJ was of opinion (at page 710) that because the court had by giving its approval assumed responsibility for the merits of the consent order the advocate was immune from suit for his role in advising that the settlement be made.  However, Pill LJ was unwilling to decide the appeal on that basis, since this ground had never been pleaded or argued or relied on before the judge.  He therefore went on to consider whether the advocate was immune on application of the Rees v Sinclair test, and concluded that she was on the basis (page 711) that no sensible distinction could be drawn between a settlement made in the course of trial and one made at the door of the court before the trial began.  He held (page 712) that a settlement made at the door of the court in civil proceedings had a more intimate connection with a hearing about to begin than a plea of guilty in a criminal case. 

	Butler-Sloss LJ agreed with Pill LJ’s conclusion.  She held (at page 715) that a consent order made and approved under the Act of 1973 had such an intimate connection with the conduct of the cause in court that it came within the Rees v Sinclair test.  She also, however, as it would seem, hesitated to decide the appeal on this unpleaded ground, and so she too went on to consider whether forensic immunity extended to cover settlements made at the door of the court, although she thought her opinion on that matter might be strictly obiter.  She concluded (at page 718) that there was no real distinction between coming to an agreement while waiting to start a case and making it after the case had begun.  She said (at page 719):

		“For my part, I do not believe it is in the interests of the administration of justice that any distinction should be drawn between the point at which the advocates attend court and thereafter for immunity against suit to apply.  It would also be a clear workable rule which was easy to apply.”

	10.  The second defendant in Atwell v Michael Perry and Co. and Another [1998] 4 All ER 65 was a barrister.  He had acted for the plaintiff in county court proceedings brought against him by neighbours in a boundary dispute.  In the proceedings the plaintiff had lost, and the second defendant had advised that there was no reasonable prospect of a successful appeal.  The plaintiff had then sought advice from a different member of the Bar who had advised that the plaintiff had a very good prospect of success on appeal, and this advice was vindicated when the plaintiff did indeed succeed in the Court of Appeal.  The plaintiff then claimed damages for negligence against the solicitors whom he had first instructed, as first defendants, and against the second defendant. His complaints of negligence, summarised at page 72 of the report, alleged legal errors and oversights in the second defendant’s assessment of the case and he also complained of the inaccurate advice that there were no grounds of appeal.  

	Sir Richard Scott V-C held (at page 79) that all the plaintiff’s complaints related to decisions of counsel as to how he proposed to conduct the case, and as such were covered by forensic immunity; but (at page 80) he concluded that the second defendant’s advice on the prospect of successfully appealing against the adverse decision was not similarly protected.  The Vice Chancellor concluded, however, that even that allegation did not raise a sustainable claim for damages in negligence (pages 80-81). We understand that this decision is currently  subject to appeal.

30.	There have also been a series of cases in which forensic immunity, although claimed, has been denied: 

	1.  In Somasundaram v M. Julius Melchior and Co. [1988] 1 WLR 1394 a defendant who had pleaded guilty and been sentenced at a trial thereafter sued the solicitors who had acted for him at the criminal trial complaining that they had wrongly pressurised him into pleading guilty. It was argued for the solicitors that since counsel, if sued, would have been  protected by forensic immunity from any claim 	based on his advice to plead guilty, the solicitors were entitled to a similar immunity.  This claim the Court of Appeal rejected, holding (at page 1403) that forensic immunity only extended to those, whether  barristers or solicitors, who were acting as advocates when doing the work giving rise to the complaint.  The plaintiff’s claim was, however, dismissed on other grounds (see below).

	2.  In Donellan v Watson (1990) 21 NSWLR 335, forensic immunity was denied to a solicitor who consented to a compromise of an appeal on terms quite different from those he had agreed with his client.  A somewhat similar decision had earlier been reached in New Zealand, without reference to forensic immunity, in Thompson v Howley [1977] 1 NZLR 16.  These cases show that immunity does not necessarily attach to things done in court.

	3.  The plaintiff in Acton v Graham Pearce and Co. [1997] 3 All ER 909 had been convicted on criminal charges but the convictions had been quashed by the Court of Appeal following the reception of new evidence.  He complained in these proceedings that the defendant solicitors, who had acted for him at the trial, had conducted his defence negligently with the result that he had been wrongly convicted.  In these proceedings he complained that the solicitors had failed to take steps which reasonably competent solicitors would have taken, and the judge (at page 923) was satisfied that this complaint was made out.  The judge (at page 924) could not accept that the solicitors’ failures could be said to be in the nature of preliminary decisions affecting the way that the plaintiff’s defence was to be conducted when the proceedings came to trial, and was accordingly satisfied that the failures were not within the scope of the forensic immunity established by Rees v Sinclair.  The judge also held that there was no public policy objection to the plaintiff’s claim since far from challenging the final subsisting decision of a court his claim was entirely 	consistent with his acquittal on appeal.  

	4.  In Keegan Alexander Tedcastle and Friedlander v Hurst, above, it was held that a solicitor was not protected by immunity against claims based on his failure to give full and reasoned written advice on the risks of the litigation on which the defendant was embarking and its likely cost (page 486).

	5.  The plaintiff in Griffin v Kingsmill and others [1998] PIQR P 24 was a minor who suffered very serious injuries in a road traffic accident.  She sought damages from the driver of the car which had knocked her down, and her claim was settled and approved by the court under RSC Order 80 Rule 11 before proceedings were begun.  Under the settlement she received a sum very far below the value of the claim on a basis of full liability, and she thereafter sued as the first two defendants the solicitors who had previously represented her, and as the third defendant her counsel.  All three defendants applied to strike out the plaintiff’s claim against them on the ground that they were immune from suit in relation to the compromise of the plaintiff’s claim.  The deputy district judge refused to strike out, and his decision was affirmed on appeal by Timothy  Walker J.  He held (at P 29-30):  

		“(1)  Striking out these claims would, in my judgment, involve not just an application, but an extension of the obiter reasoning of the Court of Appeal [in Kelley v Corston].  It necessarily involves the proposition that no matter how remote in time and space the advice to settle is from the court house door and the eventual court order, the advice to settle is immune just because of the court order.  I am far from satisfied that such a result could have been intended.

		(2)  Indeed, from the language of the judgments of the Court of Appeal, it seems to me more than arguable (which is all that matters for present purposes) that they did intend to confine the court order point to the specific facts before them.  Such facts do not (obviously) exist here.  

		(3)  The extension of the principle in the manner indicated would lead to wholly random results.  It would mean that the advice would be immune, depending upon the age of the client.  Indeed, advice given to a 17 year old whose settlement was activated swiftly would be immune.  Advice given to a 17 year old, the implementation of which was delayed beyond the next birthday, would not be immune. 

		(4)  Further, if the immunity arises solely from the court order (because essentially it is against public policy to inquire into whether the court discharged its duty to see that the settlement was a fair one) then, logically, I cannot see any reason why the immunity should not apply equally to the solicitors.  It is plain beyond argument that the first defendant performed no advocacy function of any kind here, yet she would still be immune.  For example, if a solicitor negligently failed to enclose a vital recent medical report when sending counsel instructions to advise on an infant’s settlement, as a result of which the case was seriously under-valued, the solicitors, who had committed an elementary error which had nothing to do with the actual conduct of the case in court, would be immune..”
 
	6.  On the trial of a preliminary issue in the same case (20 February 1998, unreported) Buckley J held that forensic immunity did not extend to cover counsel on the facts of the case, and that the first defendant was not protected by immunity in any event since she had not been acting as an advocate.

	7.  In Connolly - Martin v D  (21 July 1998, unreported)  Sedley J refused to strike out on grounds of forensic immunity an action alleging that counsel had negligently and without the authority of his client given an undertaking binding on the client, an act done in court, and further alleging that counsel had negligently advised the client that she was bound by the undertaking, an act done out of court.

31.	In T.A. Picot (CI) Ltd and Another v Michel and Others [1995] 2 LRC 247, where terms of compromise were embodied in a consent order, the Jersey Court of Appeal applied Rondel v Worsley and Saif Ali in a restrictive way.  In Chong Yeo & Partners and Another v Guan Ming Hardware & Engineering Pte. Ltd. [1997] 2 SLR 729 it was held that forensic immunity did not protect an advocate or solicitor in Singapore save where the conduct of a criminal case was in question, and then the further action was barred not because of immunity but because the action was an abuse of the court process (page 744).

Collateral challenge as abuse of process: the decided cases

32.	The Hunter principle has been applied in a number of cases not involving claims against lawyers: see, for example,  North West Water Limited v Binnie and Partners (a firm) [1990] 3 All ER 547; Ashmore v British Coal Corporation [1990] 2 QB 338; re Thomas Christy Limited (in liquidation) [1994] 2 BCLC 527.  It has also been applied in several cases brought against lawyers.  In Somasundaram, above, it was held (at page 1403) that the plaintiff’s claim against solicitors was an abuse of the process of the court since the action necessarily involved an attack on the conviction and sentence imposed on the plaintiff by the Crown Court and upheld in the Court of Appeal.  In Oliver v McKenna and Co. (30 November 1995, unreported) Laddie J held that a claim in negligence against solicitors, on the ground that they had negligently put forward and supported an unsuitable candidate for appointment as a receiver, was an abusive challenge to a judicial decision that the individual in question was a fit and proper person to be appointed.  In Smith v Linskills [1996] 1 WLR 763 the Court of Appeal upheld the decision of a judge striking out a claim by a convicted criminal defendant against the solicitors who had represented him at his trial, holding that the action amounted to a collateral challenge to the conviction and was not justified under the fresh evidence rule laid down in Phosphate Sewage.  In Griffin v Kingsmill and others, above, the court held on a preliminary issue that the proceedings did involve a collateral challenge to the court’s decision approving the infant settlement.  Other unreported cases in which objections under this head have been upheld include Sinanan v Innes Pitassi & Co. (20 February 1991), in which a claim in negligence was made against solicitors arising from their conduct of a defence to Order 14  proceedings; Wright Son & Pepper v Smith (10 November 1994); Richards v PC Witherspoon and Others (6 May 1998); and Flashman v Bond Pearce (17 July 1998).

33.	In B v Miller & Co [1996] 2 FLR 23 the judge refused to strike out a claim for negligence against solicitors based on a consent order made in ancillary relief proceedings on the ground that such proceedings were not to be equated with a final order made at the conclusion of contested proceedings, but this decision was disapproved by all three members of the Court of Appeal in Kelley v Corston, above.  In Griffin v Kingsmill and others [1998] PIQR P 24, on the strike-out application, Timothy Walker J reached a similar conclusion, pointing out (at P 31) that the Master who had approved the infant settlement had not been a court of trial, had not given a judgment on the merits of the case and had not given a judgment on any contested issue.  The judge observed that if the collateral attack point were a good one it would have been an equally good one in Kelley v Corston; but it is plain from the report of that case that the Hunter argument was not relied on before the Court of Appeal.

34.	In Palmer v Durnford Ford [1992] QB 483 haulage contractors, in reliance on the expert advice of an engineer, issued proceedings against the vendor and the repairer of a lorry.  Shortly before trial the expert advised that he would have difficulty supporting the claim against the vendor. At the trial evidence was heard, but before the trial was completed the haulage contractors abandoned their claims and by consent judgment was given for both defendants with costs.  The contractors then sued the solicitors and the expert who had acted for them at this trial.  On the application of the expert, a district judge struck out the claim against him, holding that he was protected by the immunity of those participating in court proceedings.  The contractors appealed.  At the hearing of the appeal (by Mr Simon Tuckey QC sitting a deputy judge of the High Court) the solicitors applied to strike out the claim against them as an abuse of the process of the court, relying on the judgment entered by consent.  The expert also relied on that ground on appeal.

	The deputy judge allowed the contractors’ appeal against the expert.  Applying a test analogous to that in Rees v Sinclair, he concluded that while the expert might be immune in relation to his evidence in court and the preparation of it, he might well not be immune in relation to his initial advice and his willingness to advise as an expert.  The deputy judge did not find it possible, on the pleadings, to rule where immunity began and ended and so reinstated the claim.  On the solicitors’ summons, however, the deputy judge struck out those paragraphs of the contractors’ pleading which, in his judgment, impugned the earlier consent judgment.  He rejected the argument that this had not been a final decision because the court had not itself pronounced on the merits of the claims, holding that a final decision for the relevant purpose was one which would give rise to a plea of res judicata, leaving nothing to be judicially determined or ascertained thereafter.

35.	The decision in Palmer v Durnford Ford was considered by the Court of Appeal in Walpole v Partridge & Wilson [1994] QB106.  The plaintiff in that case had been convicted by magistrates and on appeal by the Crown Court.  He had then consulted the defendant solicitors for the first time on the prospects of a further appeal, but complained in this action that the solicitors, despite favourable advice by counsel, had failed to pursue an appeal by way of case stated.  It was 
accepted that he had a point arguable on appeal.  On the application of the solicitors, a judge struck out the plaintiff’s claim against the solicitors as an abuse, holding that it made a collateral attack on the subsisting decision of the Crown Court.  The Court of Appeal took a different view, pointing out that the rule in Hunter was not absolute and holding for a number of reasons that the action against the solicitors was not necessarily to be regarded as abusive.  But the Court questioned whether Mr Tuckey had been right to strike out the claim against the solicitors in Palmer.  Ralph Gibson LJ (giving a judgment in which the other members of the court concurred)

	(1)  agreed that as between the contractors and the repairers the consent judgment had been final as giving rise to a plea of res judicata; but

	(2)  was not satisfied that that had been a decision against the contractors which they had had a full opportunity of contesting within the principle stated by Lord Diplock in Hunter; and

	(3)  held that the Hunter principle did not prevent a plaintiff attacking a prior decision if he had sufficient fresh evidence; and

	(4)  held (at pages 124-5):

		“If there is a sufficiently arguable case to show that the defendant solicitors, by their breach of duty, put the plaintiffs in the position of being unable properly to contest the first decision, so that the plaintiffs were reasonably compelled to submit to judgment on the issue, then, in my judgment, the plaintiffs’ claim is not shown to be an abuse of the process of the court merely because it will, if it succeeds, require the court to assess the damages on the basis that the prior decision of the court would not have been made if the solicitors had not been in breach of duty”.

Thus on this reasoning the Hunter principle may not be irrelevant where there has been an unapproved judgment by consent (although Lord Diplock in the passage from Saif Ali at page 223 quoted above would appear to have taken a different view); but the principle in any event requires 
some modification where the claim is against solicitors on the ground that the solicitors’ negligence obliged the client to accept less than would have been recoverable but for the solicitors’ negligence; and good reason must be shown for re-opening the matter.  Plainly, however, the Court of Appeal did not intend to sanction a new and undesirable form of satellite litigation.  It is very common for litigants, having compromised, to suffer post-settlement remorse.  Only rarely will an action against their legal advisers be otherwise than abusive.

36.	It is of interest, if of little direct legal significance, that in Dickinson v Jones Alexander & Co [1993] 2 FLR 521 solicitors accused of negligence in conducting ancillary relief proceedings leading to a consent order admitted liability for negligence, so that the only issue was the quantum of damages which they should pay; and that in Griffiths v Dawson & Co [1993] 2 FLR 315 solicitors were held liable and ordered to pay damages for negligence in the conduct of ancillary relief proceedings. 

Discussion

37.	It seems to us that in the light of Hunter the first question to be asked on any application to strike out or dismiss a claim for damages against lawyers based on their allegedly negligent conduct of earlier proceedings is whether the claim represents an abusive collateral challenge to an earlier decision of the court.  If the claim does represent such a collateral challenge it should be dismissed or struck out unless, on the facts of the particular case, there are grounds for not following that course.  This principle clearly applies to claims against lawyers whether they are acting as advocates or not.  If the claim is dismissed or struck out on application of the Hunter rule, there is no ground for holding the lawyer immune against such a claim on the ground that public policy requires the recognition of forensic immunity to prevent re-litigation of matters already finally decided by the court.  If, on the other hand, it is not appropriate, on the facts of a given case, to strike out or dismiss the claim on application of the Hunter rule, forensic immunity should be recognised, if at all, only if some other clearly identified public policy consideration requires it, for it is plain on high and binding authority that forensic immunity is to be accorded only when, and to the extent that, the public interest requires that it should.

38.	As recognised by the Court of Appeal in Walpole (at page 116) and Smith v Linskills (at page 769), the House of Lords did not decide in Hunter that the initiation of later proceedings collaterally challenging an earlier judgment is necessarily an abuse of process but that it may be.  In considering whether, in any given case, later proceedings do constitute an abusive collateral challenge to an earlier subsisting judgment it is always necessary to consider with care (1) the nature and effect of the earlier judgment, (2) the nature and basis of the claim made in the later proceedings, and (3) any grounds relied on to justify the collateral challenge (if it is found to be such).

39.	In considering (1), the nature and effect of the earlier judgment, it would in our view be fallacious to treat all judgments as of equal weight.  We are satisfied that for reasons given in Hunter and Smith v Linskills, a collateral challenge in civil proceedings to a subsisting criminal conviction, particularly a conviction upheld or not challenged on appeal, and whether the defendant was convicted on his own admission or on the verdict of a court or jury, must always be the hardest to justify.  Nothing short of fresh evidence satisfying the Phosphate Sewage test will ordinarily suffice.  Little less is required to challenge the final decision of the court in civil proceedings when evidence has been received and judgment given.  When, without a fully contested hearing, the court has given an interlocutory judgment, or approved a compromise under Order 80 or Order 15 rule 13(4) or Order 85, or made a consent order for ancillary relief, such judgment or order is of lesser weight, and the conditions which must be met to justify a collateral challenge to such a judgment or order will be less stringent.  The giving of such judgments and the making of such orders are not, however, to be ignored because the full Hunter test is not satisfied.  They involve an exercise of judicial authority, embodied in an enforceable order of the court.  They are not to be lightly disregarded.  At the very least, it will be incumbent on a party seeking to mount a collateral challenge to such an order to explain why steps were not taken to set aside or challenge the judgment or order complained of in the original proceedings.  If that threshold is crossed, the Hunter test must be adapted appropriately to the case in question, always bearing in mind that the fundamental issue is one of abuse.  The initiation of proceedings against legal advisers which involves a collateral attack upon a consent judgment approved by the court in previous proceedings may, and ordinarily will, be an abuse of the process unless the plaintiff can properly allege a breach of duty which either (1) deprived the plaintiff of a reasonable opportunity of appreciating that better terms were available whether on settlement or at a contested hearing than the plaintiff obtained, or (2) placed the plaintiff in the position of having to accept a settlement significantly less advantageous or more disadvantageous than he should have had.

40.	Although the question arises on the first appeal, we do not find it necessary to determine what, if any, weight attaches to a consent judgment not requiring or receiving the approval of the court.  The question was first raised by the Court when the argument was well advanced, and although Mr Jackson QC (for Arthur J S Hall & Co) adopted it, we did not hear full argument.  We are conscious that Lord Diplock in Saif Ali and Ralph Gibson LJ in Walpole appear to have taken different views.  

41.	It is not open to us to question the existence of the core forensic immunity upheld in Rondel v Worsley, nor to doubt the limited extension recognised in Saif Ali.  It is, however, plain from the tenor of the majority speeches in Saif Ali that any extension beyond the core immunity must be rigorously scrutinised and clearly justified by considerations of public policy.  While their Lordships made it plain that forensic immunity was available to solicitors as well as barristers, they could scarcely have made it plainer that such immunity was available only to those acting, in respect of any relevant act or omission, as advocates.  Their speeches cannot be read as countenancing the grant of forensic immunity to those having the conduct or management of litigation otherwise than as advocates.  Section 62 does not alter, and was enacted against the background of, that rule.  Save where a claim relates to the acts or omissions of an advocate conducting a contested case in open court, forensic immunity is not to be recognised on the application of any blanket rule.  It is always necessary to look with care at the specific complaint of negligence made against the lawyer in the context of the particular case.

42.	Saif Ali indicates that there are certain forms of advice (such as decisions made on strategic or professional grounds on whether witnesses should or should not be called, or whether claims or defences should or should not be pleaded) which would be covered by forensic immunity if made in court in the course of a trial and are likely to be similarly protected if made out of court before a trial.  We cannot, however, accept that a similar immunity should attach to allegedly negligent decisions made out of court on, for example, the legal strength or weakness of a claim, or the legal admissibility of evidence, or the approximate value of a claim.  It may very well be, of course, that 
the lawyer will succeed in rebutting any accusation of negligence; but the question whether the lawyer is negligent is quite distinct from the question whether he is immune.

43.	If our foregoing analysis is correct, it must follow that there can be no general rule that counsel is, or is not, immune from liability in settling a case or, as it should more properly be put, in advising his client that the case should be settled.  Nor, in our view, can it safely be said that such advice given at the door of the court on the day of the hearing, or even during the hearing, is necessarily immune, and advice given at any earlier stage is not: all must depend on the advice given, the reason for it and the complaint made about it.  Advice based on the advocate's assessment of the strength of the evidence, or the likelihood of a finding of contributory negligence may be one thing; advice based on a palpable error of law or deficient research may be quite another.  Whatever the advice in question, and whenever and wherever the same is given, the basic question must always be whether public policy requires the recognition of immunity in the case in question.  Any doubt must be resolved against the grant of forensic immunity, since such immunity derogates from what we have described as a fundamental principle and the law should be slow to grant its own practitioners a protection denied to members of other professions.

44.	We consider that the views which we have expressed above are, with two possible exceptions, consistent with, and indeed foreshadowed by, all authority binding upon us.  The first possible exception is Kelley v Corston.  That is a very difficult case to follow and apply because
	
	(1)  the ratio of the majority is somewhat elusive (the more so since Butler-Sloss LJ expressed agreement with the conclusions of Pill LJ but not with his reasoning);

	(2)  some doubt is cast on what appears to be the ratio of Butler-Sloss LJ’s judgment by her suggestion (at page 716) that the views she went on to express might be said to be strictly obiter;

	(3)  two members of the court were, it seems, unwilling to rest their judgments on the only point on which all three members of the court were apparently agreed; 

	(4)  the Hunter principle was not relied on, although it would seem to have provided the appropriate basis on which to consider the significance of the court’s approval of the agreed terms of settlement (see Judge LJ at page 695; the other members of the court made no reference to Hunter);

	(5)  it is not easy to reconcile the apparent reliance of Pill and Butler-Sloss LJJ on the fact that settlement was agreed at court when the parties gathered for the hearing with the acceptance by counsel for the plaintiff (at page 691) that no distinction could be drawn between the advice given by the barrister at court on the morning of the trial and the advice which she had given the day before.

It is difficult to derive any clear principle from the case, a difficulty which we share with first 
instance judges who have attempted to apply it.  It does not in any event govern these appeals, which all concern solicitors only.

45.	The second possible exception is Bateman v Owen White, above.  We would not hold that solicitors were entitled to claim forensic immunity when they had not at the relevant time been acting as advocates.  Since this was an interlocutory decision of two Lords Justices refusing leave to appeal, the strict doctrine of stare decisis does not apply to it: Boys v Chaplin [1968] 2 QB 1.

46.	It follows from our discussion of principle above that we have reservations about the correctness of the reasoning of certain English first instance decisions we have mentioned above, notably Landall v Dennis Faulkner and Alsop,  McFarlane v Wilkinson and Timothy Walker J in Griffin v Kingsmill (in regard to forensic immunity).  Since the decisions of the Vice-Chancellor in Atwell v Michael Perry and Co and of Buckley J in Griffin v Kingsmill are the subject of pending appeals not now before us we forbear to comment on them.

47.	In Kelley v Corston, Judge LJ (at page 702) disapproved of B v Miller & Co because he held that an ancillary relief agreement approved by the court and embodied in an order rendered those who advised the agreement immune from suit.  Pill LJ (at page 710) took the same view.  So, (at page 715) did Butler-Sloss LJ.  We respectfully agree that the judge in B v Miller & Co was wrong to discount as he did the court’s approval of the settlement under section 33A of the 1973 Act.  It is however noteworthy that in B v Miller & Co, in contrast with Kelley v Corston, the defendants’ resistance was based on abuse of process and not forensic immunity, the claim was against solicitors and not against a barrister, and the court approving the ancillary relief agreement was not (it seems) provided with the minimum information required by Rule 76A.  The client’s main complaint was that the solicitors had negligently failed to obtain an up to date valuation of the former matrimonial home, as a result of which she had allegedly received a much smaller sum than she should have received.  Even if the judge in B v Miller had given appropriate weight to the court’s approval of the ancillary relief settlement, he might very well have been entitled, in our judgment, to allow the client’s claim to proceed.

48.	While we recognise the dangers of attempting to summarise the effect of a long and necessarily complex judgment, and we regret the repetition involved, we think it may be helpful if 
we draw together the main features of the law as we now understand it to be in cases where (1) a plaintiff in a later action seeks relief against legal advisers who acted for the plaintiff in an earlier action which ended in a considered decision of the court or an approved settlement and  (2) the plaintiff’s claim in the later action is based on negligence allegedly leading to an outcome less favourable than, but for the negligence, the plaintiff would and should have achieved and  (3) the legal advisers sued in the later action apply to restrain further prosecution of the proceedings:

	1.  The first question to be asked is whether the plaintiff’s claim represents an abusive collateral challenge to the earlier judgment of the court.  If it does the claim will ordinarily be dismissed or struck out unless there are grounds for not following that course.

	2.  In deciding whether, in any given case, the later proceedings constitute an abusive collateral challenge to the earlier judgment of the court it is always necessary to consider  (a) the nature and effect of the earlier judgment,  (b) the nature and basis of the claim made in the later proceedings, and  (c) any grounds relied on to justify the collateral challenge (if it is found to be such).
	3.  In considering the nature and effect of the earlier judgment, even greater weight will be accorded to a criminal conviction than to the final judgment in a contested civil trial, and greater weight will be accorded to the judgment in a contested civil trial than to an interlocutory judgment or order or a consent order approved by the court.  It can never, however, be appropriate to explore the extent to which an individual judge considered and appraised the merits of a proposed settlement in any particular case.

	4.  Where the later proceedings do constitute a collateral attack upon a consent judgment approved by the court in previous proceedings they may, and ordinarily will, be an abuse of the process unless the plaintiff can properly allege a breach of duty which either (a) deprived the plaintiff of a reasonable opportunity of appreciating that better terms were available whether on settlement or at a contested hearing than the plaintiff obtained or (b) placed the plaintiff in the position of having to accept a settlement significantly less advantageous or more disadvantageous than he should have had.

	5.  A plaintiff seeking to mount a collateral challenge to an earlier judgment or order will be required to explain why steps were not taken to set aside or challenge the judgment or order complained of in the original proceedings.  The court will be reluctant to sanction the initiation of satellite proceedings against legal advisers, and will never do so without substantial grounds.  It will never be enough that the plaintiff is suffering from post-settlement remorse.

	6.  Pending reconsideration of Rondel v Worsley and Saif Ali by the House of Lords, the ratio of those cases is binding on lower courts.  Any extension of the core forensic immunity beyond the limit recognised in those cases must be rigorously scrutinised and clearly justified by considerations of public policy.  Where later proceedings are objectionable as an abusive collateral challenge to an earlier judgment of the court that fact cannot, on its own, afford a public policy ground for granting forensic immunity.

	7.  Forensic immunity (as distinct from the protection accorded to those who, in any capacity, participate in legal proceedings in court) is enjoyed only by those who, whatever their professional qualification, are in respect of any relevant act or omission acting as advocates.

	8.  There can be no general rule that a lawyer is or is not immune from liability in advising a client to settle a case, and immunity does not depend on when or where such advice is given.  All depends on the advice given, the reason for it and the complaint made about it.

We now turn to the four appeals.

Arthur J.S. Hall & Co. v Simons

49.	Melvyn Keith Simons (“Mr Simons”) is a building contractor.  In 1985 and 1986 he carried out work to Church House, Madeley, Cheshire at the request of the owner, Mr Roderick Fox (“the Owner”).  A dispute arose between Mr Simons and the Owner which led to proceedings (“the Stoke Proceedings”) in which the former claimed sums alleged to be due pursuant to the building contract and the latter claimed damages for what he claimed to be faulty work.  Arthur J.S. Hall & Co. (“the Solicitors”) acted for Mr Simons in connection with the Stoke Proceedings and instructed counsel on his behalf.  On 19th August 1991, the day before the trial was due to start, the Owner and Mr Simons settled the proceedings between them.  On the following day His Honour Judge Franks, sitting as an Official Referee at Manchester, gave effect to the settlement by a consent order.  

50.	On 6th March 1992 the Solicitors instituted proceedings in the Crewe County Court against Mr Simons for the recovery of their fees for acting for Mr Simons in and about the Stoke Proceedings.  Mr Simons defended the claim by alleging that the Solicitors had been negligent in their conduct of the Stoke Proceedings.  The trial of these proceedings came before His Honour Judge Mackay, sitting in the Liverpool County Court, on 13th October 1997.  Counsel for the Solicitors sought and obtained leave to re-amend his reply and defence to counterclaim so as to assert that the amended defence and counterclaim did not disclose a reasonable cause of action in that

		“each and every act or omission of [the Solicitors] relied upon is covered by the immunity from suit arising out of the conduct of the management of the cause.”

51.	Judge Mackay decided to determine this question as a preliminary issue.  He resolved it in favour of the Solicitors and, on 14th October 1997, gave judgment for the Solicitors for the amount of their claim, namely £10,499.54.  This is an appeal of Mr Simons from that determination and judgment.  He seeks an order that there be a new trial.  He claims that the judge was wrong in law to conclude that immunity could attach to the allegations of negligence 
made by Mr Simons against the Solicitors.  To explain what those allegations were and to provide the background to our conclusions it is necessary to describe the underlying disputes between Mr Simons and the Owner in greater detail.

52.	To carry out the works of renovation to his property at Madeley the Owner engaged the services of an architect, the David Evans Practice (“the Architect”), as well as those of Mr Simons.  The timber treatment works were carried out by ALD Dampcoursing Ltd (“ALD”).  The works were completed in the summer 1986 and the Owner paid the sums due to Mr Simons except for £5,250 which, it was agreed, should be retained by the Owner.  On 7th May 1987 there was a meeting at the property attended by the Owner, the Architect and Mr Simons.  Mr Simons contends that at this meeting the Owner requested the completion of three snagging items and a thirty year timber treatment guarantee.  He claims that it was agreed between the three of them that on completion of the snagging items and production of the guarantee the Owner would pay to Mr Simons £4,550 in full and final settlement of his claim for £5,250.  Mr Simons alleges that although he duly completed the snagging items and produced timber treatment guarantees from both ALD and Sovereign Chemicals Ltd (by whom ALD had been approved) the Owner refused to pay him £4,550 or any part of it.

53.	On 1st June 1988 Mr Simons instituted proceedings in the Stoke County Court for the recovery of £4,550 from the Owner.  On 16th August 1988 Mr Simons retained the Solicitors to act on his behalf in connection with the disputes with the Owner.  On 2nd September 1988 the Owner commenced proceedings against Mr Simons and the Architect.  The two actions were consolidated on 29th November 1988.  Thus the claims in the Stoke Proceedings comprised a claim by the Owner against Mr Simons and the Architect for damages for sundry alleged breaches of contract and acts of negligence, quantified in the sum of £16,620, and, as well as their defences, counterclaims by Mr Simons for £4,550 and the Architect for £1,226.  In addition the Architect sought contribution from Mr Simons and Mr Simons instituted third party proceedings against ALD seeking an indemnity against any liability for defective timber treatment work.

54.	In due course the Stoke Proceedings were fixed to be heard on 20th August 1991.  In June and July 1991 the Solicitors had a number of conferences with counsel instructed by them on behalf of Mr Simons.  By a letter dated 10th July 1991 the Solicitors reported to Mr Simons the views of counsel that he regarded the problem whether Mr Simons or the Architect was responsible for the allegedly defective timber treatment work of ALD as “knotty”.  The Solicitors also reported the views of counsel that a lot would depend on whether the judge held that there had been a concluded agreement in May 1987 in respect of which counsel wished to see Mr Simons.  The Solicitors informed Mr Simons that the Architect’s solicitors had been in touch with them suggesting a settlement whereby the Architect would be responsible for half the Owner’s claim in respect of timber treatment and discussed the merits of that proposal.  On 14th July 1991 Mr Charles Fox, the partner in the Solicitors with whom Mr Simons dealt, recorded in an attendance note that he had pointed out to Mr Simons that the weakest part of his defence was in respect of the timber treatment.  In early August 1991 there were further exchanges between the Solicitors and Mr Simons and the solicitors for the Owner and the Architect.

55.	The crucial meeting took place on 19th August 1991.  In the morning Mr Simons had a lengthy conference with counsel instructed on his behalf by the Solicitors.  It was also attended by his expert witnesses and by Mr Charles Fox.  They considered the conduct of the trial, due to 
commence the following day, and the evidence to be led in the course of it in some detail.  At 2.30 pm the Owner and the Architect’s solicitors also attended, though by this time Mr Charles Fox had left, leaving his assistant to hold the fort.  The note prepared by the assistant clearly records the progress of the negotiations and the agreement ultimately reached.  The Owner reduced his claim to £15,000 and his costs, the Architect increased his contribution from 50% to £14,000 and 75% of the Owner’s costs and Mr Simons dropped his counterclaim and agreed to pay to the Owner £1,000 and 25% of the Owner’s costs but on terms that he was free to pursue his third party claim against ALD.  The note records Counsel’s consistent and strong advice to Mr Simons to settle and Mr Simon’s reluctance to do so because “he could not see the point in the matter going on over five years [if] it was going to be settled eventually”.

56.	On 20th August 1991 Judge Franks made an order by consent to give effect to the compromise reached the previous day.  The order did not require and did not receive the approval of the judge as to its terms.  A week later, on 27th August 1991, judgment was entered by Judge Franks in the third party proceedings against ALD for £4,550, the amount of Mr Simons’ original counterclaim against the Owner, £2,990 interest thereon and the further sum of £1,000 paid by Mr Simons to the Owner.  In addition the judge awarded Mr Simons an indemnity against his costs of the main action and against his liability for 25% of the Owner’s costs thereof.  The judgment obtained by Mr Simons against ALD proved to be valueless and he recovered nothing in respect of it.

57.	As we have indicated already the Solicitors instituted these proceedings for recovery of their fees of £6,840 on 6th March 1992.  By his amended defence and counterclaim Mr Simons denied his indebtedness and counterclaimed for damages for negligence and breach of contract.  His claims may be summarised as follows:
	
	a) the Solicitors had failed to advise him that his defence based on the agreement with the Owner reached in May 1987 was weak and should be compromised;

	b) the Solicitors were in breach of the express term of their retainer alleged by Mr Simons that he would at least recover his own costs;

	c) the Solicitors had failed to inform Mr Simons at any time before 19th August 1991 that he should settle the Owner’s claim on the terms that he was ultimately forced to accept;
	d) the Solicitors had failed to understand the guarantee provided by Sovereign, to obtain proper expert evidence in time or at all, to advise on the liability of ALD or to investigate its solvency.

The essence of Mr Simons’ complaint is that either the Solicitors should have advised him in the beginning to settle or they should have properly prepared for trial so that he could fight the case with unimpaired prospects of success.  The relief sought was damages for the loss of the opportunity to recover £4,550 under his counterclaim against the Owner and in respect of the liability to pay £1,000 and 25% of his costs to the Owner pursuant to the consent order.

58.	In their amended reply and defence to counterclaim served on May 1997 the Solicitors raised a number of defences on the merits but did not claim any immunity.  The action came on for trial before Judge Mackay on 13th October 1997.  At the outset counsel for the Solicitors sought leave to re-amend so as to claim immunity in the form to which we have already referred.  This was not opposed.  The judge agreed to determine, as a preliminary issue, the question of law as to the availability of any such immunity.  In his judgment given on 14th October 1997 he recorded that it was agreed that he should “try the question of immunity as a preliminary issue”.  He then broke that question down into three questions, namely

	a) “does the immunity from suit apply to the settlement of 19th August, the settlement which occurred the day before the trial took place, or more appropriately, was listed to 
	take place?”
	
	b) “can Simons, the builder, evade immunity by alleging antecedent acts of negligence?”
	
	c) “if so, does that apply to any antecedent act of negligence or only those not included in the ambit of the settlement?”

The judge also recorded that counsel for Mr Simons had not argued the second or third questions but had “left the other two questions to be decided by this court, but to, as it were, hold his fire with regard to such questions.”

59.	In his judgment Judge Mackay explained the background to the preliminary issue and considered the decision of this court in Kelley v Corston [1998] QB 686.  In respect of the first of the questions to which he had referred he said [transcript:10G-11H]
	
		“There can be no doubt that a settlement of the case at court would attract immunity.  The question I have to decide is: did the settlement of 19th and not 20th August 1991 attract this immunity?....It seems to me if all the parties gather as if for a trial when a trial is imminent and settle the case they are not to be distinguished from the same group actually appearing and settling the case on the very day of that trial.....Therefore, I answer the  question does immunity from suit apply to the settlement of 19th August 1991 with the answer, “yes”.”

He answered the second question in the negative.  He said [transcript:12A-G]

		“The purpose of a settlement is to reach a conclusion which may be adverse to the interests of one party or adverse to the interests of all the parties.  It may well be that that melting pot includes all sorts of issues, some of which are connected closely with the evidence which the parties may wish to bring.  Others are not connected closely with that evidence, but are very important to the parties.  It is impossible to distinguish one from the other.....a settlement is very closely connected with the trial of the issues because in my view it is a form of trial in itself.  Because all the issues are gone through perhaps in a short period, perhaps not overtly between the parties, but they are gone through often enough in great detail...therefore I say that the builder cannot evade this immunity by alleging antecedent acts of negligence.”

In respect of the third question he considered that the only antecedent acts which were not so immune were those “not referable to the matters contained in the settlement”.  He concluded [transcript:13F-H]

		“I consider that the settlement of a claim is effectively the same as the result of a claim tried at law, provided that settlement was closely connected with and contained  the same personnel and materials as would have been the case if the settlement had been concluded either at the door of the court or after the beginning of the trial and I would not extend the immunity as enunciated by the Court of Appeal to settlements of cases other than those.”

60.	It will be apparent from our conclusions on the principles applicable to cases such as these that we are unable to agree with the judge’s conclusions.  First, the order of Judge Franks made on 20th August 1991 was a consent order which did not require the approval of the court as to the merits or fairness of its terms.  Even if it be assumed that such an order may attract the Hunter principle so that a collateral attack on it is capable of amounting to an abuse of the process, a point we have left open, we are clear that no such abuse could be involved in this case.  The alleged acts of negligence which we have summarised in paragraph 57 subparagraphs a), b) and c) do not amount to an attack on the consent order.  In so far as the acts of negligence summarised in d) are concerned, if proved, they will show that had the solicitors properly performed their duty a better settlement might have been achieved.  For the reasons discussed earlier we do not consider that in those circumstances the claim against the Solicitors could constitute an abuse of the process of the court on the Hunter principle.  

61.	Second, even if the settlement reached on 19th August 1991 were capable of being sufficiently closely connected with the conduct of the cause in court so as to come within the Rees v Sinclair principle the consequential immunity is available to the advocate only.  No complaint has been made against counsel instructed by the Solicitors on behalf of Mr Simons.  It is beyond doubt that the acts and omissions of which Mr Simons complains were done or not done, as the case may be, otherwise than as advocates.  

62.	Third, even if in the relevant respects the Solicitors had been acting as advocates none of the allegations we have summarised in paragraph 57 above could have come within the Rees v Sinclair principle.  Even the complaint, summarised in sub-paragraph d), that the Solicitors failed to obtain proper expert evidence in time or at all does not involve a decision by the Solicitors from the consequences of which public policy requires that immunity should be afforded.

63.	Counsel for the Solicitors drew our attention to the fact that the damage claimed by Mr Simons was the consequence of having entered into the settlement on 19th August 1991.  He submitted that if the acts and omissions of the Solicitors leading to that settlement were immune 
then there was nothing left in the claim to be pursued at a trial.  In that event, he claimed, there was no point in analysing the pleadings to see which act or omission did not come within the Rees v Sinclair principle for there was no viable claim for damages consequential on that act or omission alone.  It is unnecessary for us to consider that submission further for we have concluded that no act or omission of the Solicitors could be immune.  It follows that the action must proceed to trial so that the facts may be found and any consequential liability ascertained.

64.	For all these reason we allow the appeal of Mr Simons, set aside the order of Judge Mackay made on 14th October 1997 and direct a new trial of the action and counterclaim.

Barratt v Woolf Seddon (a firm)

65.	In this case Mr Barratt (the husband) sued Woolf Seddon, his former solicitors (the solicitors) for negligence in respect of advice given in relation to, and  their conduct of, his former wife’s claim for ancillary relief which ultimately led to an order by consent .

66.	This is an appeal from the decision of Blofeld J dated 14 October 1997 by which he acceded to an application by  the solicitors to strike out the statement of claim of the husband. By the application dated 22 September 1997 the solicitors applied to amend their defence to allege “that the terms agreed between [the husband and his wife] were approved by the court in accordance with the duty of the court to consider the terms of settlement to be incorporated into a consent order in matrimonial ancillary relief proceedings.  Following such consideration and approval by the court the said terms were incorporated into such an order.  Accordingly [the solicitors] are entitled to, and claim immunity from suit in respect of the matters alleged in this action”.  They, in addition, made an application that “the writ and the statement of claim herein be struck out pursuant to RSC 18 rule 19 as disclosing no reasonable cause of action and/or as being frivolous, vexatious and an abuse of the process of the court.” It is not absolutely clear whether the judge’s decision was based simply on immunity, or whether it was based also on the ground that the action was a collateral attack within the Hunter principle, but it matters not because the appeal has been conducted on the basis that consideration must be given to both possibilities.  In either case one must take the facts essentially from the statement of claim, and assume them to be facts that can be established at a trial.

67.	The allegations the husband makes so far as material are as follows.  On or about 8 November 1990 he retained the solicitors to advise him in connection with his matrimonial affairs, and to advise him and act for him in any proceedings arising from the breakdown of his marriage.  The wife commenced proceedings in the Watford County Court, and, in addition to petitioning for divorce, requested the court to grant her ancillary relief.  The only asset of significant value which was capable of being realised was their jointly held matrimonial home (the home). The wife, through her solicitors, put forward to the solicitors a value for the home of £320,000, but the husband told his solicitors that he was not happy with the valuation and wanted  two valuations obtained.  He further informed them of financial problems he was having in his business affairs.  There were negotiations direct between husband and wife as well as between solicitors.  The wife then gave notice on 7 March 1991 that she intended to proceed with her application for ancillary relief.  Direct negotiations continued following which on 7 May 1991, in a letter, the solicitors proposed to the wife’s solicitors that she should receive a guaranteed sum of £160,000, that sum being put forward on the basis of a value for the home of £320,000.  On 5 June 1991, after direct dialogue, the husband and wife agreed that the home should be sold and that the wife should receive £163,000 out of the net proceeds, the balance going to the husband.  That agreement was recorded in letters as between the solicitors of 14 and 24 June 1991.

68.	On 1 July 1991 the home was placed on the market with an asking price of £339,000.  During July the only offer received was one for £306,000 and the husband informed his solicitors of his concern about the agreement that he had reached.  He informed them of his worries as to whether even the £320,000 could be achieved and as to the difficulties he would have in affording the settlement terms.

69.	The husband asserts that the advice he received at this stage was understood by him to be (1) that there was a concluded agreement between him and his wife, and (2) that the wife could 
enforce the agreement if he failed to sign the documents embodying the same, and that a refusal to sign would simply lead to extra costs being incurred.

70.	The husband reiterated his concerns to his solicitors, including by this stage his ill health, but still the husband was advised that he was bound by the agreement.  The husband then went into hospital for a period.

	In the meanwhile, on 5 September 1991, on the basis of an agreed minute of order filed together with forms 76A from both the husband and the wife each asserting the approximate value of the home at £320,000, and in the husband’s case the form being signed by the solicitors on his behalf, an order was made by District Judge Keyes which “by consent” provided that the minute of order should stand as the order of the court.  The minute recited “upon hearing the solicitors for the [husband and the wife] . . .”, and provided, so far as material, for the sale of the home with the wife to receive £163,000 out of the net proceeds. 

	During 1992 the husband’s financial position worsened and the home did not sell, albeit the price was reduced .

71.	It seems (albeit from his statement and not the statement of claim) the husband consulted other solicitors in June 1992, and on 4 September 1992 an application was made to appeal the order of District Judge Keyes out of time.  That application came before His Honour Judge Stockdale on 1 December 1992.  The application was compromised.  The consent order was set aside and the new order provided for sale of the home, and for the wife to receive £137,000.

	The home was ultimately sold in August 1993 for £249,000.

72.	The husband claims as damages (a) £18,536.96 being the costs and disbursements in pursuing the appeal; and (b) £20,011.81 being his calculation of the difference between what he ultimately received from the proceeds of the home and what he says he should have received if he had been properly advised in relation to the ancillary proceedings by the solicitors. The particulars of negligence can be summarised as follows:
	
	1.  failing at any stage to obtain or advise the obtaining of a valuation of the home;

	2.  failing to advise that any agreement or order providing for the division of proceeds of sale of the matrimonial home should provide for parties to receive percentage interests, 
	rather than for the wife to receive a guaranteed sum;

	3.  failing to advise that the court would not necessarily be obliged to make an order in the terms of the settlement reached between husband and wife;

	4.  lodging at the court a form 76A recording inaccurately the value of the home at £320,000.

73.	Blofeld J approached this case on the basis that B v Miller had been held to be wrongly decided.  He then compared the allegations with those made in B v Miller and found that there were great similarities.  He accordingly struck out the claim.

	For the reasons already indicated he was wrong to take the view that B v Miller had been so comprehensively overruled.  What is more Blofeld J seems to have thought that the position of a solicitor and the position of an advocate were precisely the same and approached the case from that standpoint.  For reasons already discussed we disagree with that approach.

74.	We would approach the case in accordance with the principles expressed in the earlier part of this judgment by asking first whether the action was an abuse of process within the collateral attack principle.  Our view is that it cannot be so described.  Certainly it can be said to be a collateral attack on District Judge Keyes’ order, but if the allegations are made out (and the allegations are credible allegations), the solicitors were responsible for the fact that the plaintiff did not have a proper opportunity of appreciating that very much better terms were available, either on a settlement basis or on a contested hearing basis.  They had not obtained a valuation of the matrimonial home; they had not advised that percentage interests would be likely to be ordered if requested; they advised that the agreement reached between husband and wife was final; and they put in a value of £320,000 in the form 76A when the only offer so far received had been well below that figure, and they had no other valuation.  Furthermore, ultimately the husband did, despite the consent order, achieve much better terms on appeal.  There may be an argument as to whether if he had pursued that appeal more speedily he might not have achieved the very terms that should have been available before District Judge Keyes, but it is difficult to see why there would not remain a credible case that by the failure to provide a reasonable opportunity to appreciate that very much better terms were available prior to the hearing before District Judge Keyes, the plaintiff has been put to the expense of conducting an appeal.

	In our view the case should not have been struck out for abuse of process on the collateral attack principle.

75.	If the case should not have been struck out as an abuse of process, have the solicitors shown that they are entitled to immunity for the acts of negligence alleged?

	The solicitors were not in our view acting as advocates in relation to any alleged act of negligence, and furthermore the conduct said to be negligent was not in any area where the solicitor could say that he was acting where public policy, the rationale for immunity, had any impact.  Even the failure to put in the correct value in a form to be presented to the court does not seem to us to fall within the area for which immunity was designed for advocates and should not therefore be held to exist for solicitors.

76.	Even if the view expressed in relation to filling in Form 76A were thought to be too narrow, it does not follow that the claim must be struck out.  The other acts of negligence alleged are very arguably as causative if not more causative of the plaintiff’s loss and  do not attract immunity on their own, and they should not do so simply because ultimately the case was settled and a court order made.  They would not attract immunity if a full trial had taken place and the failure had caused the action to fail, and they should not do so simply because a settlement was ultimately reached.  The reason they do not attract immunity is primarily because they are not the activities normally carried out by an advocate.  But, in any event, they are not intimately connected to the conduct of the cause in a sense that would attract immunity for an advocate if carried out by him or her.

We would allow the appeal.

Cockbone v Atkinson, Dacre & Slack

77.	The marriage between Mr Clive Cockbone (“the Husband”) and his wife, Mrs Patricia Cockbone (“the Wife”), was dissolved by a decree absolute pronounced on 25th September 1989, leaving outstanding the Wife’s claim for ancillary relief.  In connection with that claim, on 
20th June 1991, the Husband retained Atkinson, Dacre & Slack (“the Solicitors”) to act for him. 

	The claim was settled at the Harrogate County Court on 22nd August 1991 on terms that the Husband should pay £250,000 to the Wife by instalments, the unpaid part being secured on his farm in the meantime.  An order to that effect was made, pursuant to s.33A Matrimonial Causes Act 1973, by District Judge Grills on the same day.  On 10th April 1992 the Husband, appearing in person, was refused leave to appeal from that order.  In May and June 1995 the Husband started proceedings in the Leeds County Court against, amongst others, the Solicitors claiming damages for negligent handling of his case, and for the use of undue pressure and blackmail inducing him to enter into the settlement and to consent to the order.  On 30th October 1997 His Honour Judge McGonigal, sitting as a deputy judge of the Queen’s Bench Division, struck out the Husband’s claim against the Solicitors on the grounds that they were immune from suit in respect of their actions and advice leading to the settlement on 22nd August 1991.  This is an appeal of the Husband from that order.

78.	The Husband is a farmer.  He farms land at Warsill, Ripley, Near Harrogate, North Yorkshire, part of which was farmed by his father before him.  He and the Wife were married in August 1958.  They had five children.  The Wife left the farm in February 1988.  The Husband contends that he settled the claims of the Wife at the time she left by a payment of £10,500 to their daughter, Carol, and of £9,500 to the Wife.  The Wife did not agree and issued an application for ancillary relief within the divorce proceedings commenced by her on 29th February 1988.  The Husband continued to live at the farm and to farm it with two of the sons of the marriage, Christopher and David.  He claimed, but the Wife disputed, that there was a partnership agreement between him and those two sons, made on 1st February 1988, whereby he held the farming assets on trust for the partnership in which the three of them shared the profits equally.  It was because of the interests claimed by the sons that they were made parties to the ancillary relief claim.

79.	On 19th June 1991 the Wife served an up to date affidavit of means on the Husband.  This included a valuation of the farm and of the live and dead stock as at July 1990 prepared on her behalf by Stephenson & Sons (“Stephensons”).  They valued the farm, live and dead stock and milk quota in the sum of £917,500 and suggested that the Wife might be allocated two blocks of land at Dow Gill valued at £130,000.  The following day the Husband instructed the Solicitors to act for him in connection with the ancillary relief application.  He made it plain to Mr Walker, the partner responsible, that he did not accept the values put on the farming assets by Stephensons.  The Solicitors informed the solicitors for the Wife of their involvement and were told by them that the ancillary relief proceedings were fixed for hearing over two days commencing on 22nd August 1991.  

80.	The Solicitors’ application on the Husband’s behalf for legal aid, submitted on 21st June 1991, was granted on 1st July 1991 though, the Solicitors contend, they were not so informed until 10th July 1991.  The Solicitors sought and obtained further documents from the Husband on 15th and 18th July 1991 and from the Harrogate County Court on 7th August.  On the latter date the Legal Aid Certificate was issued and the Solicitors gave notice that they were acting for the Husband.

81.	On 13th August 1991 the Solicitors wrote to the Husband indicating that they had been to the Harrogate County Court to obtain some of the documents they required but impressing on him the need for him to provide them with hard evidence of the payments totalling £20,000 to his daughter and the Wife on which he relied in defence of the Wife’s claim.  The Husband duly attended on the Solicitors, as requested, on 15th August 1991.  He again made it plain that he disputed the Stephensons valuation of the farm and live and dead stock in the sum of £917,500 as at July 1990.  He instructed the Solicitors to apply for an adjournment of the hearing fixed for 22nd August so that a valuation might be obtained on his behalf.  The Solicitors duly applied for the adjournment on 16th August but it was refused on 20th August.

82.	In the meantime, on 15th August 1991, the Solicitors contacted a valuer, Mr Atkinson (“the Valuer”) previously instructed by the Husband.  On Wednesday 21st August 1991 the Valuer went to the farm and made an inventory and valuation.  There was no time to put them in 
proper typed form but the Valuer communicated the results to the Solicitors that evening.  The Valuer also communicated with Mr Stephenson, and agreed to meet him at court the following day.  

83.	Counsel had been contacted by the Solicitors on 13th August but he was only formally briefed on 20th August following the unsuccessful application for an adjournment.  The brief, for the Husband alone, recorded that the Husband disputed the Stephensons valuation and that the Valuer would be attending at court.  In a confidential note enclosed with the brief the Solicitors added 

		“Cockbone is a typical farmer.  He lives in cloud cuckoo land and will say whatever comes into his head at that particular moment.  He persists in these arguments that the farm makes no money (which might be the case since it is clearly so badly managed), but nevertheless he has a large milk quota which should be profitable and a significant area of land, even if some is rough.  Also that equipment is leased, as if this makes any difference, and finally that the Partnership Agreement means that only one third or less can be taken into account.  
	
		It is quite possible unless you stand your ground that you will be the subject of verbal bullying by Mr. Cockbone.  The most robust stance with him is absolutely vital.
	
		The inadequacy and superficiality of these instructions is greatly regretted, but please be assured that it is only with very great effort and urgent expenditure of much time that we have got this far.

		Please conduct the case simply to the best of your ability with the information at your disposal.  We are well aware it is less than adequate.”

84.	On 22nd August 1991 the Husband and the two sons, as interveners, attended the Harrogate County Court with the Solicitors, counsel instructed by them on his behalf and the Valuer.  Also present were the solicitors and counsel for the Wife and Mr Stephenson.  The Valuer and Mr Stephenson agreed the value of the farm and live and dead stock in the sum of £914,700 (land £568,000, live and dead stock £175,700 and milk quota £171,000).  Counsel for the Husband and the Wife then negotiated a settlement of the Wife’s claim.  As recorded in an affidavit of the Husband sworn on 29th February 1996 the Solicitors, counsel and the Valuer then met the Husband in the waiting room at the court and told him that £250,000 was the best settlement they could negotiate.

85.	What followed is graphically described by the Husband in the same affidavit.  He deposed:
	
		“We [sc. the Husband and sons] signed the order or they would come round with sale notices and sell the farm over our head.  How do you get on with Judge Grills if he does not like the look of you he can take a big swing against you.  Don’t be a bloody fool, you will be in the driving seat.  Case is costing £20,000 a day.  It was heated and nasty.  

		There was no discussion with us of how they came to the figure of £250,000 or what other option there was such as going in front of District Judge Grills for a full hearing where he would make a decision.....

		The pressure was too much for us and with me nearly going to prison for not paying maintenance I had already paid and could not afford, we signed the Order.  We did not know we was giving Mrs Cockbone first legal charge on my property or how I was supposed to pay this huge amount of money and keep our living.  I did not go in front of the judge.  I was so upset I went straight home.”

86.	As we have indicated the District Judge made an order to give effect to the settlement.  It included a recital to the effect that the Husband would consent to the sale of any part of the farm so that the proceeds of sale might be applied in complying with the order.  The sum of £250,000 was to be paid by the Husband in three instalments, £10,000 within 28 days, £110,000 on or before 22nd February 1992 and £130,000 on or before 22nd July 1992.

87.	As indicated in his statement quoted in paragraph 85 above the Husband was thoroughly discontented with the outcome.  There followed a number of applications by the Husband and his sons to set aside or appeal against the consent order, but they all failed.  Some or all of them were based on and supported by advice from counsel obtained in November 1991 and July 1992 and valuations of the farm, live and dead stock and milk quota as at 22nd August 1991 obtained by the Husband from Dacre Son, & Hartley, Savills and Cluttons in January and February 1993.

88.	The Husband commenced these proceedings against the Solicitors when acting in person.  The first plaint issued on 11th May 1995 sought damages for negligent handling of the ancillary relief proceedings and for undue pressure put upon the Husband to sign the consent order.  The second issued on 30th June 1995 sought damages for the use of blackmail in order to induce the husband to sign the consent order.  The nature of the claim may be clearly seen from the particulars given by the Husband on 4th June 1995 which, so far as material, state

		“Negligent handling”
	
		“Mr. Walker of Atkinson Dacre and Slack was given Mrs. P. A. Cockbone’s valuation on 19 June 1991.  He failed to have before the Court on 22 August 1991 the following on my behalf:-

		1.  An accurate valuation of the matrimonial assets then available for distribution.
	
		2.  A proper (or any) analysis of the indebtedness of my farming business.
		
		3.  Evidence of the tax implications of the Consent Order (nor were the tax consequences of the Order considered).

		4.  Any evidence as to how I would be able to comply with the terms of the Consent Order.

		......
	
		“There was no explanation of the legal ramifications of signing a Consent 

		Order nor of the fact that Mrs. P. A. Cockbone was given Legal Charge and the right to sell the property to get the money.

		Mr. Walker did not apply to the Court for an adjournment  until 20 August 1991.”

		“Undue Pressure”
	
		“Undue pressure in the Court Office was applied to force us to sign the consent Order by saying “If you don’t sign the Consent Order they will come round and put sale notices up and sell the farm over your head”.  “How do you get on with Judge Grills?  If he does not like you he will take big swings against you.”  “This case is costing £20,000 a day, don’t be a bloody fool you will be in the driving seat.”  This was blackmail.”

89.	The Husband contends that the valuations and financial statements were inaccurate in that the assets were overvalued, liabilities of the farming business were omitted and the tax and costs of the sales needed in order to comply with the order ignored.  He asserts that if these defects had been rectified then it would have been seen that his net assets did not exceed £189,500.  In that event, he contends, the order in favour of the Wife would have been for substantially less and capable of being satisfied by a transfer to her of the two blocks of land, valued at £130,000, referred to by Stephensons in their valuation made in July 1990.  The Husband contends, as alleged in the particulars,
	
		“If the case on 22 August 1991 had been conducted and executed properly there would have been no need to try to get the Consent Order overturned.”

All these allegations were denied by the Solicitors in their amended defence served in April 1997.

90.	On 4th August 1997 (the trial of the action having been fixed for 4th November 1997), following the decision of the Court of Appeal in Kelley v Corston the Solicitors applied to strike out the proceedings against them on the grounds that they were frivolous and vexatious and otherwise an abuse of the process of the court.  At the commencement of the hearing before Judge McGonigal on 9th October 1997 he granted the application of the Solicitors to re-amend their defence.  By their re-amendment the Solicitors claim, relying so far as necessary on s.62 Courts and Legal Services Act 1990, that (1) the settlement was negotiated by counsel instructed by them on behalf of the Husband at the door of the court and was therefore so intimately connected with the proceedings that counsel was immune from suit in respect of it; (2) the Solicitors having so instructed counsel properly relied on his advice in respect of the settlement so as themselves to be immune; (3) the consent order giving effect to the settlement had been approved by the court as required by s.33A Matrimonial Causes Act 1973 so that by reason of such judicial intervention the Solicitors were immune.

91.	In his reserved judgment delivered on 30th October 1997 Judge McGonigal considered the decision of this court in Kelley v Corston [1998] QB 686.  He concluded that counsel would have been immune from suit if sued by the Husband in respect of his advice regarding the settlement.  He then analysed the decision of Holland J in Landall v Dennis Faulkner & Alsop [1994] 5 Med.LR 268, referred to the speeches of Lords Wilberforce and Diplock in Saif Ali v Sydney Mitchell & Co. [1980] AC 198 at pp.214 and 222 and the terms of s.62 Courts and Legal Services Act 1990.  After observing that it was clear from the affidavit of the Husband that the advice as to the settlement came from both counsel and the Solicitors he said [transcript:15]
	
		“In Kelley v Corston the Court of Appeal held that a barrister advising a client regarding a consent order under the Matrimonial Causes Act 1973 is immune from suit.  Accordingly, pursuant to section 62, a solicitor advising a client regarding such an order is also immune.”

92.	The judge then dismissed the allegations of blackmail and undue pressure exerted on the Husband to induce him to settle.  As to those allegations he said [transcript:15]
	
		“I am satisfied that [the Husband] is using these words as hyperbole.  The pressure he alleges consisted of such things as warning him that the court could order a sale of the farm to provide capital for [the Wife] or that continuance of the litigation would be very expensive.”

He concluded, therefore, that the Solicitors were immune from suit in respect of any claims 
brought by the Husband in respect of their actions and advice on 22nd August 1991 relating to 
the consent order.

93.	Judge McGonigal then dealt with the complaints against the Solicitors in respect of their acts and omissions before 22nd August 1991.  He analysed them as being
	
	a) the failure of the Solicitors to obtain a valuation of the matrimonial assets in sufficient time before the hearing fixed for 22nd August 1991 so as to enable them and counsel to advise the Husband as to the appropriate level of payment at which to settle;

	b) the failure of the Solicitors to apply for an adjournment, so that such a valuation might be produced, until 16th August 1991;

	c) the failure of the Solicitors to advise the Husband at any time as to the principles on which the court acts in determining the level of ancillary relief and the likely basis for a settlement or order;

	d) the failure of the Solicitors properly to instruct counsel in time for him to give independent consideration to the issues and advice to the Husband;

	e) the failure of the Solicitors to advise the Husband as to the implications of any settlement or order with regard to the realisation of sufficient money and the tax consequences of doing so.

94.	In that context he considered the speeches of Lords Wilberforce, Diplock and Salmon in Saif Ali v Sydney Mitchell & Co. [1980] AC 191 at pp. 213A-B, 222 and 227H, the test propounded in Rees v Sinclair and s.62 Courts and Legal Services Act 1990.  He concluded that any decision as to what pre-trial work attracted immunity should be tested by the reasons for the immunity, namely
	
		“a) that all who participate in proceedings before a court should be immune from suit in /respect of what they do and say or omit to do or say; 
	
		 b) that the integrity of public justice should be maintained by discouraging collateral attacks on a decision of one court by relitigation of the same issue before another court or by the need to prevent the immunity of participants in court proceedings being outflanked.”

He considered that each of the complaints, as analysed by him, was immune for one or both of the reasons for the immunity to which he had referred.  However he also decided that if he were wrong about immunity he would not strike out the Husband’s claims for they were not so obviously unfounded as to justify their summary dismissal before trial.

95.	On 23rd October 1998 the Solicitors applied for leave to serve a respondent’s notice out of time.  They ask this court to uphold the decision of the judge on the further grounds that the consent order made on 22nd August 1991 involved judicial intervention in the form of the court’s approval, that the claim of the Husband involved a collateral attack on such order and because the judge should have concluded from all the papers before him that the claim of the Husband was bound to fail and should be struck out under the inherent jurisdiction of the court as an abuse of the process of the court.  This application was opposed by the Husband.  We consider that the Solicitors should have the extension of time they sought.  The questions of immunity were all questions of law which had been fully argued by counsel for parties in the same interest as the Husband in one or more of the other appeals.  Plainly such issues should be considered in the case of this appeal also.  With regard to the claim that the decision of the judge should be upheld because the Husband’s claim was hopeless we do not think that the Husband would sustain any prejudice or disadvantage if the Solicitors are allowed to rely on that contention.  He did not suggest that he had relied in any way on the absence of a respondent’s notice in his preparation for the hearing of the appeal.  Thus the questions which arise on this appeal are whether the claims against the Solicitors must fail because (1) the solicitors are immune from such suit (2) the claims are precluded by the Hunter principle and/or (3) they are wholly without merit.

96.	Before us the Husband appeared in person.  In advance of the hearing he had sworn an affidavit on 14th May 1998 and submitted two skeleton arguments on 5th October and 1st November 1998 extending in all to 18 typed pages.  During the hearing he read to us from a manuscript with which he provided us with copies.  From these documents it is clear that he contests each and every one of the judge’s findings against him.  In addition, though suffering from the disadvantages of extreme deafness, the gravamen of his complaint was clear enough.  He objected strongly to the patronising and dismissive tone of the confidential note from the Solicitors to counsel.  But he relied on it as showing clearly that the Solicitors had not properly prepared for the trial.  He contended that, though instructed on 20th June 1991, they had done much too little and much too late to prepare for the hearing in circumstances when they knew of the date for which it had been fixed and of his profound disagreement with the Stephenson valuation.  He submits that in these circumstances the Solicitors cannot escape liability by relying on the opinion of counsel when they knew that counsel had not been properly instructed by them.  He contends that what happened on 22nd August was not due to any judicial intervention but was the consequence of the almost total lack of preparation for the hearing.

97.	In accordance with our conclusions as to the general principles to be applied we do not share the judge’s conclusion that the Solicitors are entitled to the immunity attaching to an advocate.  The Solicitors did not act as advocates in relation to any of the matters of which the Husband complains.  Nor in failing to prepare adequately for the hearing did they rely on counsel’s advice.  Accordingly the immunity, if any, must be found in the proper application of the Hunter principle.  That principle is available because the order required the intervention of the court because of the provisions of s.33A Matrimonial Causes Act 1973.

98.	There is no doubt that all the acts and omissions of the Solicitors of which the Husband complains are relied on for the proposition that but for those acts or omissions the order of the court would have been for a substantially lower sum.  But it does not follow from such consequence that immunity must attach to the act or omission in question.  The Hunter principle does not preclude relitigation in cases where there is fresh evidence which casts an entirely new light on the case.  In our view this exception is capable of applying in this case; whether it does will depend on the facts as found at the trial.  For that reason also we would not accept the contention advanced by the Solicitors that the whole of the  Husband’s claim is so lacking in merit as to be liable to be struck out under the inherent jurisdiction of the court.

99.	It is elementary that in any contested application for ancillary relief it is necessary to have full and proper valuations and financial information.  The Solicitors knew from the outset that the Husband contested the figures on which the Wife relied.  No doubt they had problems obtaining the documents and clear instructions from the Husband but it has not been explained to 
our satisfaction why there was not sufficient time to obtain all that was required between 10th July 1991, when the Solicitors knew that legal aid had been granted, and 22nd August when the hearing took place.  The valuations subsequently obtained by the Husband indicate that the court 
might well have accepted substantially lower values than those attributed to the farming assets by Stephensons.  It is not at all clear to us that the liabilities of the business were fully taken into account nor that the liabilities for tax and the costs of sale which would arise from the sales necessary to enable the Husband to comply with an order for so large an amount as £250,000 were ever considered.

100.	It is an integral part of the Husband’s claim that undue pressure was put upon him and his sons to agree to the settlement because due to the lack of preparation by the Solicitors the case could not be fought with any prospect of success.  Though the judge may have been right about the hyperbole associated with the claim we do not think that the allegation of undue pressure should be struck out.  By  contrast it is clear to us that the allegation of blackmail is without any foundation at all.  Indeed it appears to us that the Husband was using the word in a wholly different sense to that which would be understood by a lawyer.  As this allegation either adds nothing to the allegation of undue pressure or is without any factual foundation but is, in either event, liable to be misunderstood we agree with the judge that it should be struck out.

101.	For these reasons we allow the appeal in this case also and, with the exception of the allegation of blackmail, which is to remain struck out, discharge the order of Judge McGonigal.  This action should now proceed to trial without further delay.

Harris v Scholfield Roberts & Hill (a firm)

102.	This is an action brought by Mrs Harris (the wife) against two firms of solicitors.  As against the first firm (the first solicitors) she alleges negligence in relation to the conduct of her application for ancillary relief which resulted in a consent order being made by Deputy District Judge Derbyshire on 22 November 1991 at the Barnstaple County Court.  As against the second firm (the second solicitors) she alleges negligence in relation to the conduct of an appeal from that order which was struck out for want of prosecution.  

	On 22 January 1998 District Judge White struck out the wife’s claim against the first solicitors on the ground that it was vexatious and an abuse of the process of the court, but on 13 
May 1998 Toulson J allowed the wife’s appeal and reinstated the action against that firm.  No application was made by the second solicitors to strike out the claim against them. 

103.	This is the first solicitors’ appeal from the decision of Toulson J, the grounds of the appeal being that (1) the wife’s claim against the first solicitors constituted a collateral attack on the decision of Deputy District Judge Derbyshire, and was an abuse on that basis; (2) that in the alternative the role of the first solicitors was indistinguishable from that of counsel and that the first solicitors were entitled to immunity; and (3) that in any event the first solicitors and Mrs Harris acted on the basis of counsel’s advice and thus the chain of causation was broken.  This latter point was not pursued.

104.	Once again the facts must be taken essentially from the statement of claim and the presumption must be that the facts would be established if there was a trial.

	On 8 November 1991, the first solicitors on behalf of the wife obtained counsel’s advice in relation to her claim for ancillary relief.  On the basis that the husband was earning £40,000, and that the wife was on income support (she being a self-employed psychotherapist/lecturer whose earnings were equalled by her business expenditure), he advised that the wife was entitled to periodical payments for herself, unlimited in time, of £8,120 per annum.  The counsel also advised that since the husband was apparently cohabiting with a female colleague at work, the solicitors should obtain discovery of the financial position of that colleague by way of voluntary disclosure or a witness summons.

105.	The same counsel was briefed for the hearing of the wife’s ancillary relief hearing on 22 November 1991.  Shortly before that date he became unavailable, and the solicitors had to brief different counsel at short notice.  Outside the court this counsel advised that the wife should consent to an order that she should be provided with “periodical payments at the rate of £5,500 per annum payable in equal monthly instalments on 24th each month commencing 24th December 1991 and ceasing 24th November 1993” i.e. a total of £11,000.  The order further provided that the parties’ capital claims should be dismissed.  The husband, prior to the order being made, had represented that his relationship with his colleague had broken down, and that thus her financial position was irrelevant.  That was untrue in that in fact the husband had married the colleague on 30 July 1991.

	Once the wife discovered that the husband had deceived her and the court she went to the second solicitors.  They commenced an appeal against the consent order, and much later commenced a further application to set aside the consent order.  Both the appeal and the application to set aside were dismissed for want of prosecution on 24 November 1994.

106.	The allegations of negligence against the first solicitors can be summarised as follows:
	
	1.  failure to brief counsel competent in the relevant field;

	2.  failure to inform themselves of counsel’s advice on lifelong maintenance and/or the authorities that told against termination of maintenance;

	3  failure to take account of the wife’s instructions;

	4.  failure to investigate properly the position of the colleague;

	5.  incorrect advice that it was easy to overturn a consent order if the husband turned out to be lying.

107.	Toulson J held first, that the action was not an abuse of process on the collateral attack principle, and second, that public policy did not seem to him to require the solicitors to be held immune for the acts of negligence alleged.  His approach is not far removed from that suggested as appropriate in this judgment.  He suggested that the approach of Judge LJ (supported obiter by Pill and Butler Sloss LJJ) in Kelley v Corston justifying immunity came close to applying the collateral attack principle under another guise.  He also made the point that whereas full hearings carry with them all the normal rights of appeal, consent orders have the feature that there may be 
only very limited rights of appeal, and thus it would be ironic if the collateral attack principle applied with the same rigour to such orders when the action was alleging negligence against the lawyers who advised the entry into the consent order.  He distinguished the factual situation in Kelley v Corston from the facts of the case before him on the basis that there was no suggestion that the court that made the order in Kelley v Corston had not been properly informed, and  he held that the action was not an abuse of process on the collateral attack principle.

108.	On immunity he reviewed certain of the authorities and concluded that the authorities 
were based on the view of the court as to where public policy lay, and he took the view that if the allegations made against the solicitors were true then public policy did not require the plaintiff to be left without a remedy.

109.	In accordance with the principles discussed earlier in this judgment, we start with the question whether this action is an abuse of process on the collateral attack principle. In our view it clearly is not, because the alleged breaches of duty (which it has to be said are credible allegations), if established, prevented the plaintiff having a reasonable opportunity of appreciating that there were very much better terms available either on settlement or on a full hearing.  It can properly be alleged that if they had briefed competent counsel, taken account of relevant authorities and investigated the colleague’s position, an entirely different and more advantageous settlement would have been likely.
	The fact that the order as obtained was appealable because of the dishonesty of the husband and then not pursued by the second solicitors may be a factor to be considered in relation to causation, but it was not (as recorded by Toulson J’s judgment page 73), a point taken as being decisive of the appeal on its own.

	In our view the judge was right to conclude that the action was not an abuse of process on the collateral attack principle.

110.	Are the solicitors immune?

	The solicitors in this case were not acting in any way as advocates.  That disposes of any suggestion that there might be immunity.  But in any event if it could be contemplated that a barrister as advocate might lawfully have performed any of the actions for which the solicitors are criticised, it does not seem to us that there would be immunity for the barrister.  Even if we had felt constrained by Kelley v Corston to hold that counsel were immune insofar as he was advising on settlement at the door of the court, we would not have been prepared to hold that acts done, or more accurately not done, prior to the settlement negotiations starting and which would lead to an inadequate settlement being concluded would be immune unless those acts could be said to be protected for public policy reasons i.e. by the rationale for which immunity can be justified.  An example of such an act would be an insistence that certain witnesses should not be called as part of the advice leading to settlement, but none of the acts alleged can be supported by any public policy rationale.

	In our view the judge was right on this issue also and this appeal should be dismissed.

111.	In summary, therefore, we allow the appeal in Hall v Simons, Barratt v Woolf Seddon and Cockbone v Atkinson Dacre & Slack, with the minor or consequential orders we have indicated and dismiss the appeal in Harris v Scholfield Roberts & Hill.  Before parting with these appeals we should like to add our appreciation for the assistance we have obtained from all counsel involved.  We also commend the practice of grouping for a single hearing a number of appeals raising the same general point of law in different factual circumstances.  It saves time and helps the court to appreciate the ramifications of its decision.

ORDER (not part of judgment):

	Appeals allowed with costs in the cases of Simons, Cockbone and Barratt; appeal dismissed with costs in the case of Harris; there to be a new trial of the action and counterclaim in the case of Hall; the application to strike out in the case of Cockbone be dismissed save for the allegation of blackmail which shall remain dismissed; the application to strike out the statement of claim in the case of Barratt to be dismissed; legal aid taxation in the cases of Simons, Barratt and Harris; the matter to be taxed but not paid until final outcome of action; application for leave to appeal refused.

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