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This Report is referred to in: Bulled v Khayat [4].
Res judicata is also considered by the HoL in Johnson v Gore Wood.

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Steyn Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Hobhouse of Woodborough Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ARTHUR J.S. HALL & CO.

(APPELLANTS)

v.

SIMONS (A.P.)

(RESPONDENT)

BARRATT

(RESPONDENT)

v.

ANSELL AND OTHERS (TRADING AS WOOLF SEDDON (A FIRM)

(APPELLANTS)

HARRIS

(RESPONDENT)

v.

SCHOLFIELD ROBERTS AND HILL

(APPELLANTS)

(CONJOINED APPEALS)

ON 20 JULY 2000

   LORD STEYN
   My Lords,
1.   There are three appeals before the House from orders of the Court of Appeal in a building case and in two cases involving family proceedings. Clients raised claims in negligence against firms of solicitors. In response the solicitors relied on the immunity of advocates from suits in negligence. In all three cases judges at first instance ruled that the claims against the solicitors were unsustainable. The circumstances of these cases and the disposals are set out in the judgment of the Court of Appeal given by Lord Bingham of Cornhill, L.C.J.: Arthur J.S. Hall & Co (a firm) v Simons [1999] 3 W.L.R. 873. In effect the Court of Appeal ruled in all three cases presently before the House that the claims were wrongly struck out. The solicitors now appeal. The results of the appeals are of great importance to the parties. But transcending the importance of the specific issues arising on the appeals there are two fundamental general questions namely:
  
(1)   Ought the current immunity of an advocate in respect of and relating to conduct of legal proceedings as enunciated by the House in Rondel v Worsley [1969] 1 A.C. 191, and explained in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, to be maintained in England?
(2)   What is or ought to be the proper scope in England of the general principle barring a collateral attack in a civil action on the decision of a criminal court as enunciated in Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529.
   The position in Scotland was not the subject matter of argument on these appeals.
2.   These questions before the House affect both branches of the legal profession. Your Lordships have had the benefit of careful arguments from three sides. First, by counsel for the appellant solicitors who were supported by the Solicitors Indemnity Fund. Secondly, by counsel for the Bar Council who was given leave to intervene and played a particularly helpful part in the appeal. Thirdly, by counsel for the individual litigants who put forward the contrary argument. Having studied the detailed written arguments and heard the oral arguments of counsel for the appellants, the intervenors, and the respondents, your Lordships are now in as good a position to form a judgment on the principal issues as is achievable.
3.   It is necessary to explain the scheme of my opinion. There is a direct link between the two general questions. How the law deals with the problem of re-litigation of matters already decided, as identified in the Hunter case, is an important aspect of any re-consideration of the immunity of advocates. It will be necessary to examine the two issues together. Secondly, although the cases before the House involve actions against solicitors and not against barristers, the reality is that the immunity of barristers is of longer standing and underpinned to some extent by arguments not available to solicitors. It will therefore be convenient first to concentrate by and large on the position in regard to barristers and then to consider whether the conclusions arrived at also apply to solicitors.
4.   The Existing Immunity of Barristers
5.   For more than two centuries barristers have enjoyed an immunity from actions in negligence. The reasons for this immunity were various. It included the dignity of the Bar, the "cab rank" principle, the assumption that barristers may not sue for their fees, the undesirability of relitigating cases decided or settled, and the duty of a barrister to the court: Roxburgh, "Rondel v. Worsley: The Historical Background" (1968) 84 L.Q.R. 178; and Roxburgh, "Rondel v. Worsley: Immunity of the Bar" (1968) 84 L.Q.R. 513. In 1967 when the House decided Rondel v Worsley the dignity of the Bar was no longer regarded as a reason which justified conferring an immunity on advocates whilst withholding it from all other professional men. In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465 the rule was established that irrespective of contract, if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise: at pp. 502-503. The fact that the barrister did not enter into a contract with his solicitor or client ceased to be a ground of justification for the immunity. Nevertheless, in a unanimous decision the House in Rondel v Worsley [1969] 1 A.C. 191 upheld the ancient immunity on considerations of "public policy [which are] not immutable:" at p. 227B, per Lord Reid. It is worth recalling that in that case the appellant had obtained the services of the respondent to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence. It is undoubtedly right, as counsel for the solicitors submitted and nobody disputed, that the principal ground of the decision is the overriding duty of a barrister to the court. The House thought that the existence of liability in negligence, and indeed the very possibility of making assertions of liability against a barrister, might tend to undermine the willingness of barristers to carry out their duties to the court. Lord Morris of Borth-y-Gest encapsulated the core idea by saying (at p. 251D): "It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to the client." Other members of the Appellate Committee expressed similar views: see p. 231E, per Lord Reid; pp. 272B-273F, per Lord Pearce; pp. 283E-283G, per Lord Upjohn; and p. 293E, per Lord Pearson. This factor is the pivot on which in 1967 the existence of the immunity hinged. But for it the case would probably have been decided differently. There were however supporting reasons. Perhaps the most important of these was the undesirability of relitigating issues already decided: see p. 230B-F, per Lord Reid and pp. 249A-250B, per Lord Morris of Borth-y-Gest. Another factor to which some weight was attached was the "cab rank" rule, which imposed (and still imposes) upon barristers, but not solicitors, the obligation to accept instructions from anyone who wishes to engage their services in an area of the law in which they practised. In the year after Rondel v Worsley was decided Sir Ronald Roxburgh (formerly Mr. Justice Roxburgh) said that "the pressures for putting barristers on the same footing as other professional men . . . are already strong, and may grow stronger:" 84 L.Q.R. 513, 527.
6.   Eleven years later in Saif Ali v Sydney Smith Mitchell & Co [1980] A.C. 198 the House revisited this topic. On this occasion the immunity established in Rondel v Worsley was not challenged and was not directly in issue. The existence of the debate on the merits of the immunity was not re-opened. The terrain of the debate centred on the scope of the immunity. Except for Lord Diplock, the members of the House accepted the rationale of Rondel v Worsley, which Lord Wilberforce said, at p. 213C, was that "barristers . . . have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss." About a barrister's overriding duty to the court Lord Diplock observed, at p. 220C-E:
  
   "The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered."
   Lord Diplock did, however, think that the immunity could be justified on two other grounds. The first is the analogy of the general immunity from civil liability which attaches to all persons in respect of the participation in proceedings before a court of justice, namely judges, court officials, witnesses, parties, counsel and solicitors alike: p. 222A-C: The second was the public interest in not permitting decisions to be challenged by collateral proceedings: pp. 222D-223D. There matters rested for a time.
7.   The next development was the introduction by statute of a power enabling the court to make wasted costs orders against legal practitioners: see Section 51 of the Supreme Court Act 1981ActsActs as substituted by section 4 of the Courts and Legal Services Act 1990Acts. Not surprisingly barristers are occasionally guilty of wholly unjustifiable conduct which occasions a waste of expenditure. The Bar argued that because of the immunity of barristers no such orders ought in principle to be made against barristers. The Court of Appeal ruled to the contrary: Ridehalgh v Horsefield [1994] Ch. 205. And that decision was accepted by the Bar. It operates satisfactorily. It has not been detrimental to the functioning of the court system or indeed the interests of the Bar.
8.   As Roxburgh predicted in 1968 the pressure for a re-examination of Rondel v Worsley mounted. There has been considerable academic criticism of the immunity. In a detailed and balanced discussion Peter Cane (Tort Law and Economic Interests, 2nd ed. (1996), pp. 233-238) found that, even taken together, the justifications adduced for the immunity do not support it strongly: see also similar effect Jonathan Hill, "Litigation and Negligence: A Comparative Study," (1986), 6 Oxford J.L.S. 183, 184-186. In an area where one is bound to a considerable extent to rely on intuitive judgments, the criticism of the immunity by two outstanding practising barristers is significant. In Advocates, 1992, pp. 197-206. Mr. David Pannick examined the case for and against the immunity in detail. While accepting that there is some substance in some of the arguments for an immunity, he found that on balance the immunity is not justified. He added, at p. 206: "This issue will not go away. English law will, in the future, have more to say on this topic." Recently, Sir Sydney Kentridge Q.C. expressed the view, making use of his experience as an advocate in South Africa and in England, that the "gloomy speculations" on which the immunity of barristers in England is based are wide off the mark: see Tortious Liability of Statutory Bodies, ed. Basil Markesinis and others, (1999), Foreword, p. ix. But even more important are the observations in the present case by Lord Bingham of Cornhill C.J., Morritt L.J. and Waller L.J. They clearly considered that, while the principle against collateral challenge as enunciated in the Hunter case ought to be maintained, nevertheless there was a substantial case for the sceptical re-examination of the immunity of barristers.
9.   It is now possible to take stock of the arguments for and against the immunity. I will examine the relevant matters in turn. First, there is the ethical "cab rank" principle. It provides that barristers may not pick and choose their clients. It binds barristers but not solicitor advocates. It cannot therefore account for the immunity of solicitor advocates. It is a matter of judgment what weight should be placed on the "cab rank" rule as a justification for the immunity. It is a valuable professional rule. But its impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept. When it does occur, and vexatious claims result, it will usually be possible to dispose of such claims summarily. In any event, the "cab rank" rule cannot justify depriving all clients of a remedy for negligence causing them grievous financial loss. It is "a very price to pay for protection from what must, in practice, be the very small risk of being subjected to vexations litigation (which is, anyway, unlikely to get very far):" Cane, at p. 236. Secondly, there is the analogy of the immunities enjoyed by those who participate in court proceedings: compare however Cane's observation about the strength of the case for removing the immunity from paid expert witnesses: at p. 237. Those immunities are founded on the public policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues in the case. For these reasons they prevent legal actions based on what is said in court. As Pannick has pointed out this has little, if anything, to do with the alleged legal policy which requires immunity from actions for negligent acts: ibid, at p. 202. If the latter immunity has merit it must rest on other grounds. Whilst this factor seemed at first to have some attractiveness, it has on analysis no or virtually no weight at all.
10.   The third factor is the public policy against re-litigating a decision of a court of competent jurisdiction. This factor cannot support an immunity extending to cases where there was no verdict by the jury or decision by the court. It cannot arguably justify the immunity in its present width. The major question arises in regard to criminal trials which have resulted in a verdict by a jury or a decision by the court. Prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] Q.B. 335. The position of defence counsel must however be considered. Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully, will from time to time attempt to challenge their convictions by suing advocates who appeared for them. This is the paradigm of an abusive challenge. It is a principal focus of the principle in Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529. Public policy requires a defendant, who seeks to challenge his conviction, to do so directly by seeking to appeal his conviction. In this regard the creation of the Criminal Cases Review Commission was a notable step forward. Recently in Reg. v Secretary of State for the Home Department, Ex parte Simms [1999] 3 W.L.R. 328, 338, there was uncontroverted evidence before the House that the Commission is seriously under-resourced and under-funded. Incoming cases apparently have to wait two years before they are assigned to a case worker. This is a depressing picture. The answer is that the functioning of the Commission must be improved. But I have no doubt that the principle underlying the Hunter case must be maintained as a matter of high public policy. In the Hunter case the House did not, however, "lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it:" Smith v Linskills [1996] 1 W.L.R. 763, 769C-F per Sir Thomas Bingham, M.R. (now Lord Bingham of Cornhill) It is, however, prima facie an abuse to initiate a collateral civil challenge to a criminal conviction. Ordinarily therefore a collateral civil challenge to a criminal conviction will be struck out as an abuse of process. On the other hand, if the convicted person has succeeded in having his conviction set aside on any ground, an action against a barrister in negligence will no longer be barred by the particular public policy identified in the Hunter case. But, in such a case the civil action in negligence against the barrister may nevertheless be struck out as unsustainable under the new flexible Civil Procedure rules, 1999; rules 3.4(2)(a) and 24.2. If the Hunter case is interpreted and applied in this way, the principal force of the fear of oblique challenges to criminal convictions disappears. Relying on my experience of the criminal justice system as a presiding judge on the Northern Circuit and as a member of the Court of Appeal (Criminal Division), I do not share intuitive judgments that the public policy against re-litigation still requires the immunity to be maintained in criminal cases. That leaves collateral challenges to civil decisions. The principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with this risk. It would not ordinarily be necessary to rely on the Hunter principle in the civil context but I would accept that the policy underlying it should still stand guard against unforeseen gaps. In my judgment a barrister's immunity is not needed to deal with collateral attacks on criminal and civil decisions. The public interest is satisfactorily protected by independent principles and powers of the court.
11.   The critical factor is, however, the duty of a barrister to the court. It also applies to every person who exercises rights of audience before any court, or who exercises rights to conduct litigation before a court: see sections 27(2A) and 28(2A) of the Courts and Legal Services Act 1990 as inserted by section 42 of the Access to Justice Act 1999. It is essential that nothing should be done which might undermine the overriding duty of an advocate to the court. The question is however whether the immunity is needed to ensure that barristers will respect their duty to the court. The view of the House in 1967 was that assertions of negligence would tend to erode this duty. In the world of today there are substantial grounds for questioning this ground of public policy. In 1967 the House considered that for reasons of public policy barristers must be accorded a special status. Nowadays a comparison with other professionals is important. Thus doctors have duties not only to their patients but also to an ethical code. Doctors are sometimes faced with a tension between these duties. Concrete examples of such conflicting duties are given by Ian Kennedy, Treat Me Right; Essays in Medical Law and Ethics, (1988). A topical instance is the case where an Aids infected patient asks a consultant not to reveal his condition to the patient's wife, general practitioner and other healthcare officials. Such decisions may easily be as difficult as those facing barristers. And nobody argues that doctors should have an immunity from suits in negligence.
12.   Comparative experience may throw some light on the question whether in the public interest such an immunity of advocates is truly necessary. In 1967 no comparative material was placed before the House. Lord Reid did, however, mention other countries where public policy points in a different direction: [1969] 1 A.C. 191, 228E. In the present case we have had the benefit of a substantial comparative review. The High Court of Australia followed Rondel v Worsley: Gianarelli v Wraith (1988) 165 C.L.R. 543; see also Boland v Yates Property Corporation Pty. Ltd. (1999) 74 A.L.J.R. 209. In New Zealand the Court of Appeal has taken a similar course: Rees v Sinclair [1974] 1 N.Z.L.R. 180. It is a matter of significance that the High Court of Australia and the Court of Appeal of New Zealand came to the conclusion that a barristers immunity from actions in negligence is required by public policy considerations in those countries. On the other hand, in countries in the European Union advocates have no immunity. It is true that there is a difference in that the control of a civilian judge over the proceedings is greater than is customarily exercised by a judge in England: see R.O. Graef, Judicial Activism in Civil Proceedings. A comparison between English and German Civil Procedural Approaches, (1996), passim. But with the advent of the Woolf reforms this difference is reduced to some extent in civil cases: see The Civil Procedure Rules, 1999, Part 1, Rule 1.1 (The over-riding objective). On the other hand, I accept that in the field of criminal procedure the role of a judge in England is far more passive than in European Union countries: see Van Den Wyngaert and others, Criminal Procedure Systems in the European Community (1993), passim. I am also willing to accept that, although an advocate in a civilian system owes a duty to the court, it is less extensive than in England. For example, in Germany there is apparently no duty to refer the court to adverse authorities as in England. Despite these differences the fact that the absence of an immunity has apparently caused no practical difficulties in other countries in the European Union is of some significance: Tortious Liability of Statutory Bodies, ed. B.S. Markesinis and others, (1999), p. 80. In the United States prosecutors have an immunity. In a few states the immunity is extended to public defenders. But otherwise lawyers have no immunity from suits of negligence by their clients: Ferri v Ackermann (1979) 444 U.S. 193. While the differences between the legal system of the U.S.A and our own must be taken into account, the United States position cannot be altogether ignored. In Canada an advocate had no immunity from an action in negligence before Rondel v Worsley was decided. In 1979 the question was re-examined in great detail as a result of the decision of the House of Lords in Rondel v Worsley: see Demarco v Ungaro (1979) 95 D.L.R. (3rd) 385. In Canada trial lawyers owe a duty to the court. After a detailed and careful review the court found there was no evidence that the work of Canadian courts was hampered in any way by counsel's fear of civil liability. The Demarco case has been consistently followed by Canadian courts: see Karpenko v Paroian, Courey, Cohen & Houston (1980), 30 O.R. (2d) 776 (H.C.); Pelky v Hudson Bay Insurance Co (1981), 35 O.R. (2d) 97 (H.C.); Garrant v Moskal, [1985] 2 W.W.R. 80 (Sask. Q.B.), affirmed [1985] 6 W.W.R. 31 (Sask. C.A.); Hodge & Son v Monoghan (1985), 51 Nfld. & P.E.I.R. 173 (Nfld. T.D.) I regard the Canadian empirically tested experience as the most relevant. It tends to demonstrate that the fears that the possibility of actions in negligence against barristers would tend to undermine the public interest are unnecessarily pessimistic.
13.   There would be benefits to be gained from the ending of immunity. First, and most importantly, it will bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong. There is no reason to fear a flood of negligence suits against barristers. The mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent. Indeed if the advocate's conduct was bona fide dictated by his perception of his duty to the court there would be no possibility of the court holding him to be negligent. Moreover, when such claims are made courts will take into account the difficult decisions faced daily by barristers working in demanding situations to tight timetables. In this context the observations of Sir Thomas Bingham M.R. (now Lord Bingham of Cornhill) in Ridehalgh v Horsefield [1994] Ch. 205 are instructive. Dealing with the circumstances in which a wasted costs order against a barrister might be appropriate he observed, at p. 236:
  
   "Any judge who is invited to make or contemplates making an order arising out of an advocate's conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him."
   For broadly similar reasons it will not be easy to establish negligence against a barrister. The courts can be trusted to differentiate between errors of judgment and true negligence. In any event, a plaintiff who claims that poor advocacy resulted in an unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome. Unmeritorious claims against barristers will be struck out. The new Civil Procedure Rules, 1999, have made it easier to dispose summarily of such claims: rules 3.4(2)(a) and 24.2. The only argument that remains is that the fear of unfounded actions might have a negative effect on the conduct of advocates. This is a most flimsy foundation, unsupported by empirical evidence, for the immunity. Secondly, it must be borne in mind that one of the functions of tort law is to set external standards of behaviour for the benefit of the public. And it would be right to say that while standards at the Bar are generally high, in some respects there is room for improvement. An exposure of isolated acts of incompetence at the Bar will strengthen rather than weaken the legal system. Thirdly, and most importantly, public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is created that the law singles out its own for protection no matter how flagrant the breach of the barrister. The world has changed since 1967. The practice of law has become more commercialised: barristers may now advertise. They may now enter into contracts for legal services with their professional clients. They are now obliged to carry insurance. On the other hand, today we live in a consumerist society in which people have a much greater awareness of their rights. If they have suffered a wrong as a result of the provision of negligent professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence. It is also noteworthy that there is no obligation on the barrister (or for that matter the solicitor advocate) to inform a client at the inception of the relationship that he is not liable in negligence, and in practice the client is never so informed. Given that the resort to litigation is often one of the most important decisions in the life of the client, it has to be said that this is not a satisfactory position. Moreover, conduct covered by the immunity is beyond the remit of the Legal Services Ombudsman: section 22(7)(b) of the Court's and Legal Services Act 1990. In combination these factors reinforce the already strong case for ending the immunity.
14.   My Lords, one is intensely aware that Rondel v Worsley [1969] 1 A.C. 191 was a carefully reasoned and unanimous decision of the House. On the other hand, it is now clear that when the balance is struck between competing factors it is no longer in the public interest that the immunity in favour of barristers should remain. I am far from saying that Rondel v Worsley was wrongly decided. But on the information now available and developments since Rondel v Worsley I am satisfied that in today's world that decision no longer correctly reflects public policy. The basis of the immunity of barristers has gone. And exactly the same reasoning applies to solicitor advocates. There are differences between the two branches of the profession but not of a character to differentiate materially between them in respect of the issue before the House. I would treat them in the same way.
15.   That brings me to the argument that the ending of the immunity, if it is to be undertaken, is a matter for Parliament. This argument is founded on section 62 of the Courts and Legal Services Act 1990Acts. It reads as follows:
  
"(1)   A person -
  
"(a)   who is not a barrister; but
(b)   who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services.
(2)   No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question."
The background to this provision is, of course, the judicially created immunity of barristers, which in 1967 was held by the House to be founded on public policy. And it will be recollected that Lord Reid observed that public policy is not immutable. Against this background the meaning of section 62 is clear. It provides that solicitor advocates will have the same immunity as barristers have. In other words, the immunity of solicitors will follow the fortunes of the immunity of barristers, or track it. Section 62 did not either expressly or by implication give Parliamentary endorsement to the immunity of barristers. In these circumstances the argument that it is beyond the power of the House of Lords, which created the immunity spelt out in Rondel v Worsley, to reverse that decision in changed circumstances involving a different balance of policy considerations is not right. Should the House as a matter of discretion leave it to Parliament? This issue is more finely balanced. It would certainly be the easy route for the House to say "let us leave it to Parliament." On balance my view is that it would be an abdication of our responsibilities with the unfortunate consequence of plunging both branches of the legal profession in England into a state of uncertainty over a prolonged period. That would be a disservice to the public interest. On the other hand, if the decision is made to end the immunity now, both branches of the profession will know where they stand. They ought to find it relatively easy to amend their rules where necessary and to adjust their already existing insurance arrangements insofar as that may be necessary.
16.   My Lords, the cards are now heavily stacked against maintaining the immunity of advocates. I would rule that there is no longer any such immunity in criminal and civil cases. In doing so I am quite confident that the legal profession does not need the immunity.
   The Hunter case
17.   So far as the Hunter case involves a separate question before the House I would refer to my discussion of this topic under the heading of Immunity of Barristers.
   The Disposal Of The Appeals
18.   Given the conclusion that the immunity no longer exists, it follows that the appeals must fail. I would dismiss the three appeals.
   LORD BROWNE-WILKINSON
   My Lords,
19.   I have had the advantage of reading the speeches of my noble and learned friends Lord Steyn and Lord Hoffmann. I agree with them and for the reasons they give, I would dismiss these appeals. However, since the point at issue is important and your Lordships' views are not unanimous, I will state shortly my views on the point on which your Lordships are divided.
20.   Let me initially consider the points on which your Lordships are all agreed. First that, given the changes in society and in the law that have taken place since the decision in Rondel v Worsley [1969] 1 A.C. 191, it is appropriate to review the public policy decision that advocates enjoy immunity from liability for the negligent conduct of a case in court. Second, that the propriety of maintaining such immunity depends upon the balance between, on the one hand, the normal right of an individual to be compensated for a legal wrong done to him and, on the other, the advantages which accrue to the public interest from such immunity. Third, that in relation to claims for immunity for an advocate in civil proceedings, such balance no longer shows sufficient public benefit as to justify the maintenance of the immunity of the advocate.
21.   The point on which your Lordships are divided is whether the same rules should apply whether the negligence alleged against the advocate relates to his conduct of a civil action or to a criminal prosecution. Are there, as some of your Lordships think, special reasons which require the immunity of the advocate in a criminal trial to be maintained? Of the four main grounds relied upon as justifying the immunity, only one seems to me to be capable of justifying the immunity, namely that to allow an action for negligence against the advocate for his conduct in earlier litigation is necessarily going to involve the risk that different conclusions on issues decided in the first case will be reached in the later case. In the context of civil proceedings (i.e. where the advocate is sought to be made liable for his conduct of a civil action) although such conflicting decisions are undesirable, they are far from unknown. But in the context of criminal proceedings (i.e. when the advocate's negligence occurred in the course of a criminal trial) the decision is far more difficult. In the overwhelming majority of cases, the action in negligence will not be capable of succeeding unless the verdict of guilty in the original trial is held to have been incorrect; if the complainant was in any event guilty of the alleged crime, the negligence of his advocate, even if proved, would not have been shown to be causative of any loss. Therefore, if there is to be a successful action for negligence in criminal matters, so long as the plaintiff's criminal conviction stands there will be two conflicting decisions of the court, one (reached by judge and jury on the criminal burden of proof) saying that he is guilty, the other (reached by a judge alone on balance of probability) that he is not guilty. My Lords, I would find such conflicting decisions quite unacceptable. If a man has been found guilty of a crime in a criminal trial, for all the purposes of society he is guilty unless and until his conviction is set aside on appeal. Therefore, if the removal of the advocate's immunity in criminal cases would produce these conflicting decisions, I would have no doubt that the public interest demanded that the advocate's immunity be preserved.
22.   But in my judgment the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction. Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such re-litigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute. In view of the more restrictive rules of res judicata and issue estoppel it is not clear to me how far the Hunter case goes where the challenge is to an earlier decision in a civil case. But in my judgment where the later civil action must, in order to succeed, establish that a subsisting conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute. Save in truly exceptional circumstances, the only permissible challenge to a criminal conviction is by way of appeal.
23.   It follows that, in the ordinary case, an action claiming that an advocate has been negligent in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Only if the conviction has been set aside will such an action be normally maintainable. In these circumstances there is no need to preserve an advocate's immunity for his conduct of a criminal case since, in my judgment, the number of cases in which negligence actions are brought after a conviction is quashed is likely to be small and actions in which the conviction has not been quashed will be struck out as an abuse of process.
24.   For these reasons, and the much fuller reasons given by Lord Steyn and Lord Hoffmann, I would dismiss these appeals.
   LORD HOFFMANN My Lords,
   1. The facts.
25.   In these appeals three clients are suing their solicitors for negligence. In the first, Mr. Simons says that his solicitors negligently allowed him to become involved in lengthy and expensive litigation when they should have advised him to settle. In the second, Mr. Barratt says that his solicitors negligently advised him to settle his divorced wife's claim for a share of the matrimonial home on disadvantageous terms. In the third, Mrs. Harris has a similar complaint about the terms upon which her solicitors advised her to settle her claim for maintenance against her ex-husband. None of these allegations has been investigated. The solicitors may or may not have a complete answer to them. But they say that even if they were negligent, they cannot be sued. They claim immunity under a modern version of an ancient rule of common law which prevented barristers from being sued for negligence.
   2. The immunity rule
26.   The old rule for barristers survived until 1967. The way in which it was usually explained was that barristers, unlike solicitors, had no contract with their clients. They could not sue for their fees. And in the absence of a contract there could be no liability. But that reason was undermined when the House of Lords decided in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465 that, even without a contract, a person who negligently performed professional or other duties which he had undertaken could be sued in tort. So the whole question was re-examined by the House in Rondel v Worsley [1969] 1 A.C. 191. What emerged was a different rule of immunity, in some respects wider and in others narrower, not based upon any technicalities but upon what the House perceived as the public interest in the administration of justice.
27.   The new rule was narrower because, although their Lordships were not unanimous about its precise limits, they agreed that it should in general terms be confined to acts concerned with the conduct of litigation. None of them thought that it could apply to non-contentious work. Barristers had previously been immune from liability for anything. On the other hand, the new rule was wider in that it also applied to solicitors.
28.   Most of the speeches in Rondel v Worsley [1969] 1 A.C. 191 were devoted to explaining why the new immunity was necessary. The old cases had not relied solely upon the technicalities of contract. The rule was also said to be an expression of public policy. But Lord Reid said, at p. 227B-C, that public policy was "not immutable" and that because "doubts appear to have arisen in many quarters whether that rule is justifiable in present day conditions in this country" it was proper to "re-examine the whole matter." The grounds upon which their Lordships considered that public policy required a modified immunity may be summarised under four heads: divided loyalty, the cab rank, the witness analogy and collateral challenge.
   3. Divided loyalty
29.   Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important. Sometimes the performance of these duties to the court may annoy the client. So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in accordance with his overriding duty to the court. That would be prejudicial to the administration of justice.
   4. The cab rank
30.   It is a valuable professional ethic of the English bar that a barrister may not refuse to act for a client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay the appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court. It was said that barristers would be less inclined to honour this professional obligation if they suspected that the client was the sort of person who would, if he lost his case, turn on his barrister and sue for negligence. This consideration was said to apply with particular force to the criminal bar, where the unsuccessful client, like Mr. Rondel, was likely to have leisure to ponder the way his trial had been conducted and access to legal aid if he could persuade another lawyer that he had an arguable case.
   5. The witness analogy
31.   No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects witnesses, lawyers and the judge. The administration of justice requires that participants in court proceedings should be able to speak freely without being inhibited by the fear of being sued, even unsuccessfully, for what they say. The immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it is said that a similar immunity against proceedings for negligence is necessary to enable advocates to conduct the litigation properly.
   6. Collateral challenge.
32.   If a client could sue his lawyer for negligence in conducting his litigation, he would have to prove not only that the lawyer had been negligent but also that his negligence had an adverse effect upon the outcome. This would usually mean proving that he would have won a case which he lost. But this gives rise to the possibility of apparently conflicting judgments which could bring the administration of justice into disrepute. A client is convicted and sent to prison. His appeal is dismissed. In prison, he sues his lawyer for negligence. The lawyer's defence is that he was not negligent but that, in any case, the client has suffered no injustice because whatever the lawyer did would not have secured an acquittal. In seeking to establish the latter point, the lawyer may or may not be able to re-assemble the witnesses who gave evidence for the prosecution. The question of whether the client should have been acquitted is then tried on evidence which is bound in some respects to be different, before a different tribunal and in the absence of the prosecution. The civil court finds, on a balance of probability, that the lawyer was negligent and that if he had conducted the defence with reasonable skill, the client would have been acquitted. Or perhaps that he would have had a 50% chance of being acquitted. Damages are awarded. But what happens then? Does the client remain in prison, despite the fact that a judge has said there was an even chance that he would have been acquitted? Should he be released, notwithstanding that the prosecution has had no opportunity to say that his conviction was correct? Should it be referred back to the Court of Appeal and what happens if the Court of Appeal, on the material before it, takes a different view from the civil judge? The public would not understand what was happening. So it was said that to allow clients to sue for negligence would allow a "collateral challenge" to a previous decision of another court. Even though the parties were different, this would be contrary to the public interest.
   7. The scope of the immunity
33.   Eleven years later, after Rondel v Worsley [1969] 1 A.C. 191, the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198 had to consider the limits of the immunity. There was no challenge to the decision itself or the core immunity for the conduct of litigation in court. The question was the extent to which that immunity cast its shadow upon acts done out of court. In the particular case, it was a barrister's failure to advise joining additional parties before the limitation period had expired. The test for the out of court immunity adopted by the majority of the House was whether the work was so "intimately connected" with the conduct of the case in court as to amount to a decision as to how it would be conducted at the hearing. By this test, the barrister's conduct fell outside the immunity.
34.   Although the immunity itself was not under challenge in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, Lord Diplock considered that the need to delimit its scope required a reconsideration of its rationale. He was unimpressed by the divided loyalty argument which had been in the forefront of the reasoning in Rondel v Worsley [1969] 1 A.C. 191. He thought no better of the cab rank rule. But he considered that the analogy with witness immunity and the collateral challenge argument were sufficient to justify a limited immunity.
   8. A reconsideration
35.   In the cases now under appeal, the Court of Appeal was of course bound by Rondel v Worsley [1969] 1 A.C. 191 and Saif Ali v Sydney Mitchell & Co [1980] A.C. 198. It decided that in all three cases the alleged negligence of the solicitors was not within the scope of the immunity as extended to out of court work. Their advice was not intimately connected with the way in which the case, if it had not settled, would have been conducted in court. But before your Lordships, the respondent clients have made a root and branch attack on the immunity. They say that it should be altogether abolished. Over 30 years have passed since Rondel v Worsley [1969] 1 A.C. 191; public policy, as Lord Reid said at the time, is not immutable, and there have been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions. They say that it is once again time to re-examine the whole matter. My Lords, I agree. In reconsidering these questions, I have been greatly assisted by a wealth of writing on the subject by judges, practitioners and academics, in the United Kingdom and overseas. I hope that I will not be thought ungrateful if do not encumber this speech with citations. The question of what the public interest now requires depends upon the strength of the arguments rather than the weight of authority.
   9. The principle of equal treatment
36.   My Lords, my point of departure is that in general English law provides a remedy in damages for a person who has suffered injury as a result of professional negligence. The landmark cases by which this principle was developed are Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465, to which I have already referred, and Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145. It follows that any exception which denies such a remedy requires a sound justification. Otherwise your Lordships would fail to observe the fundamental principle of justice which requires that people should be treated equally and like cases treated alike.
37.   In considering whether such a justification still exists, your Lordships cannot ignore the fact that you are yourselves members of the legal profession. Members of other professions, and the public in general, are bound to view with some scepticism the claims of lawyers that the public interest requires them to have a special immunity from liability for negligence. If your Lordships are convinced that there are compelling arguments for such an immunity, you should not of course be deterred from saying so by fear of unfounded accusations of collective self-interest. But those arguments need to be strong enough to convince a fair-minded member of the public. They cannot be based merely upon intuitions. This is a case in which what Professor Peter Cane has described as an "empathy heuristic" will not do. (See Oxford Essays in Jurisprudence, ed. J. Morder 4th series (2000) , p. 56, footnote 35.)
   10. The divided loyalty argument analysed
38.   My Lords, there is apt to be a certain amount of confusion about the exact nature of the divided loyalty argument. There are two distinct versions in circulation but they are not always recognised to be different.
   (a) Effect on behaviour of lawyers
39.   The first argument is that the possibility of being sued for negligence would actually inhibit the lawyer, consciously or unconsciously, from giving his duty to the court priority to his duty to his client, or, as Lord Diplock preferred to put it in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, 219H from observing the rules. This argument involves a prediction about the way in which the removal of the immunity would affect the way in which lawyers behave in court. It claims that their behaviour would change in a way which was contrary to the public interest in the administration of justice. This was the argument advanced by Mr. Sumption to your Lordships on behalf of the defendant solicitors. He said that if there was no immunity, lawyers would in marginal cases prefer the interests of their clients to the interests of justice. It is an argument which in view of the eminence of its proponents in Rondel v Worsley [1969] 1 A.C. 191 and elsewhere must be taken seriously I shall in due course return to it.
   (b) A difficult art
40.   The second version of the argument is that the divided loyalty is a special factor that makes the conduct of litigation a very difficult art. It is easy to commit what appear in retrospect to have been errors of judgment. Even if there is no real danger that a court would hold such errors to have been negligent, the advocate would be exposed to vexatious claims by difficult clients. The argument is pressed most strongly in connection with advocacy in criminal proceedings, where the clients are said to be more than usually likely to be vexatious. Your Lordships will observe that this version of the argument does not depend upon the proposition that lawyers will be deterred from observing the rules or their duty to the court. It is advanced as a good argument even if your Lordships think that there are no sufficient grounds for the prediction which Mr. Sumption invites you to make. It is rather an argument that the imposition of liability would be unfair. The efforts of lawyers in good faith to comply with their public duties should not leave them open to vexatious claims by dissatisfied clients. This is the argument which my noble and learned friend Lord Hutton calls the "second strand" of the divided loyalty argument. As he puts it, "it is not right that a person performing an important public duty by taking part in a [criminal] trial should be vexed by an unmeritorious action . . . ." I shall deal with this argument, which I propose to call the "vexation argument," before returning to the one advanced by Mr. Sumption.
   11. The vexation argument
41.   My Lords, I do not think that the vexation argument, taken by itself, has any validity. It is true that the conduct of litigation is a difficult art and that one of the reasons why it sometimes requires delicate judgment is the advocate's duty to the court. But there are many professional activities which require delicate judgment and advocacy is not the only one which may involve a divided loyalty. The doctor, for example, owes a duty to the individual patient. But he also owes a duty to his other patients which may prevent him from giving one patient the treatment or resources he would ideally prefer. We do not say that they should have immunity merely because they do a difficult job in which it is easy to make a bona fide error of judgment. And although the criminal advocate is engaged in an activity of great public importance, I do not think it would be right to claim that he is in this respect unique among professional men. The fact is that the advocate, like other professional men, undertakes a duty to his client to conduct his case, subject to the rules and ethics of his profession, with proper skill and care. No other participant in the trial undertakes such a duty.
42.   There is some overlap between the vexatious claims argument and the witness analogy, to which I shall come in due course. Essentially it depends upon the same reasoning as Fry L.J. used in the famous passage in Munster v Lamb (1883) 11 Q.B.D. 588, 607 in defence of the absolute privilege of witnesses giving evidence in court:
  
   "It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bonâ fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions."
43.   But this argument depends upon the assumption that there is a powerful public interest which makes this degree of protection necessary. In the case of witnesses, it is the assumption that they would otherwise be less willing to come forward and tell the truth in court. In other words, that their behaviour would be affected in a particular way which was contrary to the interests of the administration of justice. It is not simply the general proposition that people doing their best in a difficult job should not be exposed to vexatious claims. This argument could apply to many people besides lawyers. So in my opinion it is only the first version of the divided loyalty argument which can have any prospect of success. The second is in principle misconceived.
   12. Vexatious claims in general
44.   Before returning to Mr. Sumption's divided loyalty argument, I should say that in my opinion one should not exaggerate the bogey of vexatious claims. As I have said, every other profession has to put up with them. A practitioner who is properly insured can usually expect such claims to be handled by solicitors instructed by the underwriters. And there have been recent developments in the civil justice system designed to reduce the incidence of vexatious claims.
   (a) Summary dismissal
45.   The first is the new Civil Procedure Rules. Under the old rules, a defendant faced with what appeared to be a bad claim had a very heavy burden to satisfy the court that it was "frivolous and vexatious" and ought to be struck out. Now rule 24.2 provides that the court may give summary judgment in favour of a defendant if it considers that "the claimant has no real prospect of succeeding on the claim." The defendant may file written evidence in support of his application. In Swain v Hillman The Times, 4 November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999, Paragraphs 10 and 20 Lord Woolf M.R. encouraged judges to make use of this:
  
   "very salutary power. . . It saved expense; it achieved expedition; it avoided the court's resources being used up in cases where it would serve no purpose; and, generally, was in the interests of justice."
46.   Of course the summary power has its limits. The court should not "conduct a mini-trial" when there are issues which should be considered at a full one. But it should enable the courts to deal summarily with truly vexatious proceedings. It should also be remembered that a lawyer defendant has the advantage that the power of summary dismissal is in the hands of lawyers. I do not suggest that they would be inclined to favour their own profession. The opposite is more likely to be the case. But they would understand what the case was about. They would be operating in their own field of expertise, not faced with the allegations of professional negligence in another discipline which they did not have the knowledge or experience to recognise as groundless. So in this respect lawyers faced with vexatious claims are in an advantageous position.
   (b) Funding of litigation
47.   The second important change has been made by the Access to Justice Act 1999, which came into force on 1 April 2000. Civil legal aid has been abolished and replaced by legal services funded by the Legal Services Commission as part of the Community Legal Service. The Act altogether excludes legal help in relation to "allegations of negligently caused injury, death or damage to property...:" see paragraph 1(a) of Schedule 2. Although an action for damages for loss caused by negligent advocacy or related services may not strictly fall within these categories, it is clear that it will not be easy to obtain legal representation for such actions. The Lord Chancellor has approved a Funding Code prepared by the Commission under section 8 of the Act which indicates that they would not come very high on the Community Legal Service's scale of priorities. Paragraph 5.7.1 of the code provides that if "the nature of the case is suitable for a [conditional fee agreement], and the client is likely to be able to avail himself or herself of a [conditional fee agreement], full representation will be refused." Actions for damages for the negligent conduct of litigation would seem, by analogy with paragraph 1(a) of Schedule 2, to be suitable for conditional fee agreements. Furthermore, under paragraph 5.7.3, full representation in a claim for damages will be refused unless certain cost benefit criteria are satisfied. For example, if the chances of success are good (60% - 80%), the likely damages must exceed the likely costs by a ratio of 2:1. If the prospects are less than 50%, representation will be refused.
48.   It will therefore be much more difficult than it has been in the past to obtain legal help for negligence actions which have little prospect of success. The public funding of cases like Rondel v Worsley [1969] 1 A.C. 191, the very paradigm of a hopeless claim by a disgruntled criminal defendant, is unlikely to be repeated. The alternative will be a conditional fee agreement, which would require satisfying another lawyer that the claim had sufficient prospects to make it worth his while to take it on at his own risk as to costs. Once again, as a lawyer, he will be able to recognise a vexatious claim when he sees one.
   13. Back to the divided loyalty argument
49.   After this digression, I return to Mr. Sumption's divided loyalty argument. I have no doubt that the advocate's duty to the court is extremely important in the English system of justice. The reasons are eloquently stated by their Lordships in Rondel v Worsley [1969] 1 A.C. 191 and I do not think that the passage of more than 30 years has diminished their force. The substantial orality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced. The question is whether removing the immunity would have a significant adverse effect upon this state of affairs.
50.   To assess the likelihood, I think that one should start by considering the incentives which advocates presently have to comply with their duty and those which might tempt them to ignore it. The first consideration is that most advocates are honest conscientious people who need no other incentive to comply with the ethics of their profession. Then there is the wish to enjoy a good reputation among one's peers and the judiciary. There can be few professions which operate in so bright a glare of publicity as that of the advocate. Everything is done in public before a discerning audience. Serious lapses seldom pass unnoticed. And in the background lie the disciplinary powers of the judges and the professional bodies. Whereas in 1967 it might have been said that the concept of the duty to the court was somewhat undefined and that much was left to the discretion of the advocate, who might interpret his obligations in the way which suited him best, today both branches of the profession are governed by detailed codes of conduct.
51.   Looking at the other side of the coin, what pressures might induce the advocate to disregard his duty to the court in favour of pleasing the client? Perhaps the wish not to cause dissatisfaction which might make the client reluctant to pay. Or the wish to obtain more instructions from the same client. But among these pressures, I would not put high on the list the prospect of an action for negligence. It cannot possibly be negligent to act in accordance with one's duty to the court and it is hard to imagine anyone who would plead such conduct as a cause of action. So when the advocate decides that he ought to tell the judge about some authority which is contrary to his case, I do not think it would for a moment occur to him that he might be sued for negligence. I think it is of some significance that the situation in which the interests of the client and the duty to justice are most likely to come into conflict is in the preparation of the list of documents for discovery. The lawyer advising on discovery is obliged to insist that he disclose relevant documents adverse to his case which are not protected by privilege. But solicitors who undertake no advocacy usually perform this task and it has never been thought to be protected by immunity.
52.   Mr. Sumption did not really suggest that any conscious calculation would take place. What he said was that it would lead to defensive lawyering, rather as liability for professional negligence is said to lead to defensive medicine. The advocate would take every possible point when otherwise he might have been willing to shorten the proceedings by conceding that some were really non-starters. But prolixity is a recognised problem even with the immunity in place. Lawyers want to do as much as they honestly can for their client and occasionally more. The tendency to overkill is not inhibited by the system under which they are conventionally paid, which is reasonable remuneration for work reasonably done. So the problem has to be contained in other ways. The disapproval of the court is a traditional curb on prolixity. But it has not been enough. Other mechanisms have had to be put into place. The new Civil Procedure Rules have given judges a battery of powers to keep the resources expended on a case proportionate to the its value and importance.
53.   An important innovation for the purpose of restraining unnecessary expenditure on costs has been the extension in 1990 of the power of the court to make wasted costs orders. The implications of this jurisdiction are in my view so relevant to the present argument that the subject deserves a section of its own.
   14. Wasted costs orders
54.   The judgment of the Court of Appeal in Ridehalgh v Horsefield [1994] Ch. 205, 226-231 contains a history of the wasted costs jurisdiction. Briefly stated, the court had jurisdiction before 1990 to order solicitors to pay costs wasted by their clients or other parties by reason of their misconduct, default or serious negligence. The jurisdiction did not apply to barristers. But section 4 of the Courts and Legal Services Act 1990 conferred power to make rules under which the court could order any legal representative to pay costs wasted by any party as a result of "any improper, unreasonable or negligent act or omission" on their part. Rules to this effect came into force on 1 October 1991: R.S.C., Ord. 62, r. 11. Sections 111 and 112 of the Act conferred similar powers on judges and magistrates in criminal proceedings.
55.   For present purposes, the significance of this development is that it made advocates, both barristers and solicitors, liable for negligence in the conduct of litigation. It is true that it was a limited form of liability because it was restricted to the payment of wasted costs. It did not extend to any other loss which their negligence might have caused to their clients or other parties. But the costs of modern litigation can amount to a good deal of money. Furthermore, the possibility that the negligent conduct of litigation may lead to a wasted costs order being visited upon the advocate by summary process, before the very judge hearing the case, is likely to be more present to the mind of an advocate than the prospect of an action for negligence at some time in the future. If, therefore, the possibility of being held liable in negligence is calculated to have an adverse effect on the behaviour of advocates in court, one might expect this to have followed, at least in some degree, from the introduction of wasted costs orders.
56.   Such was certainly the submission of counsel for both the Law Society and the Bar Council to the Court of Appeal in Ridehalgh v Horsefield [1994] Ch. 205. The Courts and Legal Services Act 1990 had extended rights of audience in the superior courts to solicitors and section 62 recognised that they should in that capacity have whatever immunities were enjoyed by barristers:
  
"(1)   A person - (a) who is not a barrister; but (b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would if he were a barrister lawfully providing those services."
57.   The two professional bodies argued that any liability for wasted costs orders should be subject to the immunity recognised in section 62. Their counsel were not however agreed on how the divided loyalty of the advocate would be affected. Mr. Matheson Q.C. for the Law Society said, at p. 213E, that it would "affect the willingness of legal representatives fearlessly to represent their clients' interests." Mr. Rupert Jackson Q.C., for the Bar Council, advanced, at pp. 217-218, the Rondel v Worsley [1969] 1 A.C. 191 argument that it would affect the ability of the barrister "to be able to perform his duty to the court fearlessly and independently." Either version of the argument would have made a sizeable hole in the new jurisdiction, particularly in its application to barristers in criminal proceedings. The Court of Appeal rejected it. Since then, many wasted costs orders have been made as a result of the negligent conduct of legal proceedings.
58.   My Lords, I accept that the liability of a negligent advocate to a wasted costs order is not the same as a liability to pay general damages. But the experience of the wasted costs jurisdiction is the only empirical evidence we have available in this country to test the proposition that such liability will have an adverse effect upon the way advocates perform their duty to the court. There is no doubt that the jurisdiction has given rise to problems, particularly in exercising it with both fairness and economy. But I have found no suggestion that it has changed standards of advocacy for the worse. On the contrary. In Fletamentos Maritimos S.A. v Effjohn International BV (unreported) 10 December 1997; Court of Appeal (Civil Division) Transcript No. 2115 of 1997 the Court of Appeal made a wasted costs order against a firm of solicitors who had instructed counsel to made a hopeless application for leave to appeal. Simon Brown L.J. ended his judgment by saying:
  
   "Nothing in this judgment should, or I believe will, deflect legal representatives, on instructions, from vigorously pursuing and arguing the most difficult cases. An argument, however unpromising, is perfectly properly advanced (not least on an application for leave to appeal) provided only and always that it is respectable and is not being pursued for reasons other than a genuine belief in the possibility of its success. If our order today were to discourage some of the more absurd arguments with which this court is sometimes plagued, I for one would not be regretful."
   15. Overseas experience
59.   Mr. Sumption (for the solicitors) and Mr. Peter Scott, for the Bar Council, say that one cannot draw any useful conclusions from other legal systems in which no immunity exists. Legal cultures differ. The court procedures of Europe and the United States, for example, lack the predominantly oral character of litigation in the United Kingdom. In Australia and New Zealand, where procedures are most similar, Rondel v Worsley [1969] 1 A.C. 191 is followed. In general I accept this, but I cannot refrain from drawing attention to the experience in Canada. It appears that in that country no immunity was claimed for lawyers before Rondel v Worsley [1969] 1 A.C. 191. Then, in Demarco v Ungaro (1979) 95 D.L.R. (3d) 385, a firm of barristers and solicitors at Niagara Falls, Ontario found themselves sued by a former client for negligence in the conduct of a case in which he had been ordered to pay $6,000 and costs. They argued that as long as the immunity in England was based on the absence of a contract with a barrister, it could obviously have no application in Canada. Lawyers there contracted with their clients. But now that the House of Lords in Rondel v Worsley [1969] 1 A.C. 191 had reissued the immunity with a newly minted rationale, there was no reason why the arguments of public policy should not also pass current in Canada. Krever J. examined that case and Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, as well as the few Canadian cases on the subject and explained the differences between the Canadian and English legal professions. But I do not think it would be unfair to summarise the pith of the judgment on the divided loyalty argument as being that Canada had got on perfectly well without an immunity for over a hundred years and there was no reason to think that it needed to be introduced in order to encourage lawyers to perform their duties to the court. He said, at p. 406:
  
   "With respect to the duty of counsel to the court and the risk that, in the absence of immunity, counsel will be tempted to prefer the interest of the client to the duty to the court and will thereby prolong trials, it is my respectful view that there is no empirical evidence that the risk is so serious that an aggrieved client should be rendered remediless."
60.   Although a decision at first instance in Ontario, the careful and fully reasoned decision of Krever J. appears to have been treated as settling the law in Canada. It has not since been challenged.
   16. Divided loyalty and criminal proceedings
61.   My noble and learned friend Lord Hope of Craighead considers that although in civil proceedings the possibility that the removal of the immunity may have an adverse effect upon the conduct of advocates is not strong enough to justify its retention, there is a sufficiently strong likelihood that it will have this effect in criminal cases. Counsel will be tempted "to pursue every conceivable point, good or bad . . . ." This must be an intuitive prediction, because there is in the nature of things no way of proving it now. I would not regard the current efflorescence of human rights points in Scottish criminal proceedings, notwithstanding the existence of the immunity, as any indication as to whether removal of the immunity would aggravate matters. This is an area in which cause and effect is not easy to establish. And of course, I acknowledge that my noble and learned friend's experience is far greater than mine. Indeed, it could hardly be less. But I am comforted by the fact that others with considerable experience of criminal proceedings do not have the same forebodings. In the end, I do not think that such intuitions are a sound basis upon which to proceed.
62.   The argument for immunity in criminal proceedings depends heavily upon the image of litigants like Mr. Rondel, occupying their prison time with devising vexatious proceedings against their counsel which are then launched at public expense. But it must be remembered, first, that the abuse of process doctrine, which I shall discuss later, is likely to eliminate almost all such plaintiffs who have not succeeded in having their convictions set aside; and secondly, for the reasons which I have explained, that vexatious actions are less likely to be publicly funded and more likely to be struck out than they were in 1967. My noble and learned friend Lord Hutton chooses his example carefully when he says that "few members of the public would have been critical of Mr. Worsley being granted immunity." I quite agree that the case against him should have been struck out. But that is because it was hopeless. It would be easy to imagine other facts in which the public would react very badly to a grant of immunity.
63.   My noble and learned friend Lord Hobhouse of Woodborough has a rather narrower point. He places emphasis not so much upon the way the advocate may conduct the criminal trial but upon the appellate process. He says that the advocate may be less inclined to assist the Court of Appeal with a full explanation of what went wrong at the trial if he thinks that a successful appeal would open the way to an action against him for negligence. In most appeals, no such assistance will be required. All the material will be on the record. But I accept that there are some cases in which it may be necessary to inquire of the advocate as to matters such as the instructions he received or why some witnesses were not called. Again it seems to me that the prediction of a change in the behaviour of the advocates is based upon intuition and even if the intuition is more soundly based, the class of cases involved is so narrow that it cannot justify a total immunity from actions for negligence in the conduct of all criminal cases.
   17. The Cab Rank
64.   This argument is that a barrister, who is obliged to accept any client, would be unfairly exposed to vexatious actions by clients whom any sensible lawyer with freedom of action would have refused to act for. It is, in the nature of things, intuitive, incapable of empirical verification, and I do not believe it has any real substance. The clients in question will presumably have already found solicitors to represent them without any professional compulsion. There may be many reasons why a barrister, free to choose, would prefer not to act for a client, such as the fact that he is particularly tiresome or disgusting, but I doubt whether fear of a vexatious action is a prominent consideration. In any case, for reasons which I have explained, I think that vexatious actions are an occupational hazard of professional men and that we are improving our ways of dealing with them. If the prospect of their being brought against lawyers serves as an incentive to improve those procedures even more, so much the better for everyone. I should mention that Lord Diplock in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, 221 dismissed the cab rank argument for much the same reasons.
   18. The witness analogy
65.   This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. So is the judge, counsel and the parties. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v Vibart [1963] 1 Q.B. 528. The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say. And, as Fry L.J. explained in the passage which I have already cited from Munster v Lamb 11 Q.B.D. 588, 607 this policy is regarded as so important that it requires not merely qualified privilege but absolute immunity.
66.   The application of the analogy to the negligence of lawyers involves generalising the policy of the witness immunity and expressing it, as Lord Diplock did in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, 222A, as a "general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice." Stated at this level of generality, it includes immunity for advocates from liability for anything that they may do. The rationale is said to be to "ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them."
67.   My Lords, with all respect to Lord Diplock, it seems to me that to generalise the witness immunity in this way is illegitimate and dangerous. In the High Court of Australia in Mann v O'Neill (1997) 71 A.L.J.R. 903, 912 McHugh J. spoke of the perils of extending the witness immunity by analogy. There is, he said, a temptation:
  
   "to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence."
68.   What is the rationale of the witness immunity? In Taylor v Director of the Serious Fraud Office [1999] 2 A.C.177, 215C, I said that the policy of the immunity was "to encourage freedom of expression" and that was why it was limited to cases in which "the alleged statement constitutes the cause of action." My noble and learned friend Lord Hope of Craighead explained, at p. 219, that the immunity did not, for example, protect a witness against an action for malicious prosecution based on what he had said to the police because "it is the malicious abuse of process, not the making of the statement, which provides the cause of action." In other words, the immunity is based upon a perception that witnesses would otherwise be less inclined to come forward and tell the truth. They would behave differently in a way which was inimical to the interests of justice.
69.   It is not sufficient, therefore, to explain any immunity relating to court proceedings by saying that the people involved should be free from "avoidable stress and tensions." That merely suggests that everyone would find litigation more agreeable if no awkward consequences could follow from anything which the participants did. It is another version of the vexation argument, which I have already rejected. It is necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. How would he otherwise behave differently in a way which was contrary to the public interest?
70.   If one asks the question in this way, as I think one must, then it becomes apparent that Lord Diplock was inconsistent in rejecting the divided loyalty argument and the cab rank argument but accepting the witness analogy. It involves, as Lord Diplock himself would have put it, a petitio principii. The witness rule depends upon the proposition that without it, witnesses would be more reluctant to assist the court. To establish the analogy, it is necessary to point to some similar effect on the behaviour of lawyers. But Lord Diplock rejected the only two candidates put forward for likely changes in behaviour and offered no others. The proposition that absence of immunity would have an effect contrary to the public interest was assumed without argument.
71.   Mr. Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan [2000] 1 Q.B. 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts' statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client.
72.   Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client.
   19. Collateral attack
73.   This argument also has a number of strands which need to be examined separately.
   (a) Evidential difficulties
74.   It may be very difficult to arrive at a conclusion about what would have happened in earlier proceedings if in some respect they had been conducted differently. In Smith v Linskills [1996] 1 W.L.R. 763, 773 Sir Thomas Bingham M.R. spoke of:
  
   "[t]he virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion. The present case exemplifies the problem. It is over 12 years since the crime was committed. Recollections (of the participants and the lawyers involved) must have faded. Witnesses have disappeared. Transcripts have been lost or destroyed. Hayes may, or may not, be available to testify. Evidence of events since the trial will be bound to intrude, as it already has. It is futile to suppose that the course of the Crown Court trial can be authentically re-created."
75.   Of course this is true. But, in principle, evidential difficulties have never been regarded as a reason for declining jurisdiction. The plaintiff has to prove that the lawyer's negligence caused him loss. The burden of proof is upon him. His case may have become so weak with the passage of time that it has to be struck out. But that is no reason for giving lawyers immunity from suit even in cases in which there is no difficulty about proving that their negligence caused loss to the plaintiff. This has to be done in cases which fall outside the immunity. For example, in Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563 a firm of solicitors were negligent in failing to issue a writ before the limitation period expired. Lloyd-Jacob J. had to decide in 1957 what would have been the plaintiff's chances of success in an action which should have been brought before 1946 to establish that her husband's death by electrocution in 1945 had been caused by the negligence of the West Kent Electricity Co. when it installed a control box in 1940. The Court of Appeal upheld his estimate of the value of her claim.
   (b) Invidious judgments
76.   Then it is said that while it is difficult enough to decide what would have happened at a trial which did not in fact take place (as in Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563), it may become positively invidious to decide how a judge who actually heard the case would have reacted if the advocate had advanced a different argument or called different evidence. Some judges are more receptive to certain kinds of points than others. I think that this is an imaginary problem. Whatever may have been the foibles of the judge who heard the case, it cannot be assumed that he would have behaved irrationally. If he did, it would have been corrected on appeal. Obviously one has to take into account the findings that the judge made on the case as it was actually presented. For example, if he did not believe anything which the plaintiff said, it may be difficult to show that a different line of argument would have persuaded him to find in his favour. But I do not see how it is relevant for the purposes of the hypothetical exercise to have regard to the judge's idiosyncrasies. It must be assumed that he would have behaved judicially.
   (c) Conflicting judgments
77.   The most substantial argument is that it may be contrary to the public interest for a court to retry a case which has been decided by another court. In Rondel v Worsley [1969] 1 A.C. 191, 251 Lord Morris of Borth-y-Gest said that it would be:
  
   "undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation."
78.   In Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, 222-223, Lord Diplock developed this point in a passage which should be quoted at length:
  
   "Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but upon principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial upon a contested issue by re-trial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction. Yet a re-trial of any issue decided against a barrister's client in favour of an adverse party in the action in respect of which allegations of negligent conduct by the barrister are made would be an indirect consequence of entertaining such an action.
  
   "The re-trial of the issue in the previous action, if it depended on oral evidence, would have to be undertaken de novo. This would involve calling anew after a lapse of time witnesses who had been called at the previous trial and eliciting their evidence before a different judge by questions in examination and cross-examination that were not the same as those that had been put to them at the previous trial. The circumstances in which the barrister had made decisions as to the way in which he would conduct the previous trial, and the material on which those decisions were based, could not be reproduced in the re-trial; and the initial question in the action for negligence: whether it has been established that the decision adverse to the client reached by the court in the previous trial was wrong, would become hopelessly entangled with the second question: whether it has been established that notwithstanding the differences in the circumstances in which the previous trial was conducted, it was the negligent act or omission of the barrister in the conduct of his client's case that caused the wrong decision by the court and not any other of those differences.
  
   "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."
79.   It may be said that this passage is combining two arguments: the one based upon evidential difficulty, which is not, as I have said, a general reason for refusing to try a case, and the argument that conflicting decisions may bring the administration of justice into disrepute. But I think that Lord Diplock is saying that the fallibility of any conclusion about whether the earlier case would have been decided differently reinforces the public interest rule about avoiding conflicting decisions. This is obviously an argument entitled to great respect.
80.   But actions for negligence against lawyers are not the only cases which give rise to a possibility of the same issue being tried twice. The law has to deal with the problem in numerous other contexts. So, before examining the strength of the collateral challenge argument as a reason for maintaining the immunity of lawyers, it is necessary to consider how the law deals with collateral challenge in general.
   20. Re-litigation in general.
81.   The law discourages relitigation of the same issues except by means of an appeal. The Latin maxims often quoted are nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. They are usually mentioned in tandem but it is important to notice that the policies they state are not quite the same. The first is concerned with the interests of the defendant: a person should not be troubled twice for the same reason. This policy has generated the rules which prevent relitigation when the parties are the same: autrefois acquit, res judicata and issue estoppel. The second policy is wider: it is concerned with the interests of the state. There is a general public interest in the same issue not being litigated over again. The second policy can be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the case within the spirit of the rules. I shall give two examples. In Reichel v Magrath (1889) 14 App. Cas. 665 Mr. Reichel, the vicar of Sparsholt, resigned. The bishop of Oxford accepted his resignation. Then the vicar changed his mind. He brought an action against the Bishop and the Queen's College, Oxford, which had the right of presentation, for a declaration that his resignation had been void. The judge held that it had been valid and that the living was vacant. His decision was affirmed on appeal. The college appointed its Provost, Dr. Magrath, as the new vicar. Mr. Reichel refused to move out of the vicarage. Dr. Magrath brought an action for possession. Mr. Reichel pleaded in defence that his resignation had been void and he was still the vicar. The court struck out the defence as an "abuse of the process of the court." Although the parties were different, the case was within the spirit of the issue estoppel rule. Dr. Magrath was claiming through the college, which had been a party to the earlier litigation.
82.   In Ashmore v British Coal Corporation [1990] 2 Q.B. 338 Ms Ashmore worked in the canteen of a coal mine in Nottingham. She complained to an industrial tribunal that she was paid less than men were being paid for similar work, contrary to the Equal Pay Act 1970. Over 1500 other women employees of the corporation made similar complaints. The industrial tribunal decided to hear 14 sample cases, 6 selected by the employees and 8 by the employers, to lay down general principles according to which the others could be decided. Ms Ashmore was aware of these arrangements. The tribunal decided all the cases adversely to the applicants on grounds which were equally applicable to Ms Ashmore's application. She then asked for a separate hearing of her case. The Court of Appeal decided that it should be struck out as an abuse of the process of the court. Ms Ashworth had not been a party to the sample proceedings but the sensible procedure there adopted would be undermined if all other members of the group were entitled to demand a separate hearing.
83.   The leading case on the application of the power to dismiss proceedings on this ground as an abuse of the process of the court is Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529. It concerned the trial of the six men convicted of an I.R.A. bombing in Birmingham in 1974. The defendants claimed that the police had beaten them to extract confessions. The trial judge held a voir dire and decided that the prosecution had proved beyond reasonable doubt that they had not been beaten. They were convicted. They applied for leave to appeal, but not on the ground that the confessions had been wrongly admitted. Leave to appeal was refused. In prison, the accused commenced proceedings against the policemen for assault, alleging the same beatings as had been alleged at the criminal trial. The House of Lords decided that it was an abuse of the process of the court to attempt to relitigate the same issue and that the actions should be struck out.
84.   Criminal proceedings are in my opinion in a special category because although they are technically litigation between the Crown and the defendant, the Crown prosecutes on behalf of society as a whole. In the United States, the prosecutor is designated "The People." So a conviction has some of the quality of a judgment in rem, which should be binding in favour of everyone. As Lord Diplock pointed out in Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, 223, this policy is reflected in section 13 of the Civil Evidence Act 1968Acts, which provides that in an action for libel or slander, proof of the plaintiff's conviction is conclusive evidence that he committed the offence of which he was convicted.
85.   But one should not exaggerate this argument. The policy reasons which justify making the conviction conclusive evidence in a defamation action do not necessarily apply to other actions. I said that a conviction has some of the quality of a judgment in rem but, as a matter of law, it remains a judgment between the Crown and the accused and that is often the right way to consider it. The Court of Appeal is generally thought to have taken the technicalities of the matter much too far when it decided in Hollington v F. Hewthorn & Co Ltd [1943] 1 K.B. 587 that in civil proceedings a conviction was res inter alios acta and no evidence whatever that the accused had committed the offence. But when Parliament reversed this rule in section 11(1) of the Civil Evidence Act 1968, it did not say that the conviction should be conclusive evidence, so that the issue could not be relitigated. It said only that the conviction was admissible evidence for proving that he committed the offence.
86.   Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 shows that, superimposed upon the rules of issue estoppel and the Civil Evidence Act 1968Acts, the courts have a power to strike out attempts to relitigate issues between different parties as an abuse of the process of the court. But the power is used only in cases in which justice and public policy demand it. Lord Diplock began his speech, at p. 536, by saying that the case concerned:
  
   "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."
87.   I too would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute. It is true that Lord Diplock said later in his speech, at p. 541, that the abuse of process exemplified by the facts of the case was:
  
   "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."
88.   But I do not think that he meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored. As I shall explain, I think it is possible to make some generalisations about criminal proceedings. But each case depends upon an application of the fundamental principles. I think that Ralph Gibson L.J. was right when, after quoting this passage, he said in Walpole v Partridge & Wilson [1994] Q.B. 106, 116 that Hunter's case decides "not that the initiation of such proceedings is necessarily an abuse of process but that it may be."
   21. The immunity and abuse of process by relitigation
89.   My Lords, the discussion in the last sections shows, first, that not all relitigation of the same issue will be manifestly unfair to a party or bring the administration of justice in to disrepute, and secondly, that when relitigation is for one or other of these reasons an abuse, the court has power to strike it out. This makes it very difficult to use the possibility of relitigation as a reason for giving lawyers immunity against all actions for negligence in the conduct of litigation, whether such proceedings would be an abuse of process or not. It is burning down the house to roast the pig; using a broad-spectrum remedy when a more specific remedy without side effects can handle the problem equally well.
90.   Cases in which actions for negligence have been brought against solicitors without immunity illustrate this point. Walpole v Partridge & Wilson [1994] Q.B. 106 is one. The plaintiff was convicted before the magistrates of a statutory offence by preventing a veterinary officer from inspecting his pigs. His appeal to the Crown Court was dismissed. He issued proceedings against his solicitors for negligence, claiming that he had wanted to appeal by way of case stated and had arguable grounds for success on a point of law, but that they had negligently failed to lodge an appeal. The solicitors applied for the action to be struck out as an abuse of process on the ground that it would involve trying the question of whether the Crown Court had been wrong in law. In a closely reasoned and admirable judgment, Ralph Gibson L.J. decided that the claim would not be manifestly unfair to the solicitors or bring the administration of justice into disrepute. On the contrary, the denial of a remedy was more likely to do so.
91.   It is easy to imagine a similar case in which the alleged negligence would have been within the immunity: failure on the part of counsel, for example, to take an obvious point of law in the Crown Court. (Compare Atwell v Michael Perry & Co [1998] 4 All E.R. 65.) In such a case the consequence of the immunity would be to deny a remedy for negligence although the collateral challenge argument had no application.
   22. Summing up the arguments
92.   My Lords, I have now considered all the arguments relied upon in Rondel v Worsley [1969] 1 A.C. 191. In the conditions of today, they no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity. The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way. I do not say that Rondel v Worsley [1969] 1 A.C. 191 was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable and your Lordships must consider the arguments afresh.
   23. Leave it to Parliament?
93.   Mr. Sumption and Mr. Scott said that even if your Lordships thought that the immunity could no longer be justified, you should not, in your judicial capacity, alter the law. It was something which Parliament had considered fairly recently, during the passage of the Courts and Legal Services Act 1990. A legislative decision had been taken not to abolish the immunity. For the judges now to do so would be to trespass upon a competence which had been assumed by the sovereign legislature.
94.   My Lords, I acknowledge the need for sensitivity on the part of the judges in entering into areas of law which are properly matters for democratic decision. Recently in Southwark London Borough Council v Mills [1999] 3 W.L.R. 939, 944, I said:
  
   "in a field such as housing law, which is very much a matter for the allocation of resources in accordance with democratically determined priorities, the development of the common law should not get out of step with legislative policy."
95.   But, my Lords, there has been no statement of legislative policy on the immunity for lawyers. Section 62(1) of the Courts and Legal Services Act 1990, which I have already quoted, was careful not to endorse the immunity. It merely said that whatever immunity barristers had should also extend to solicitors. It is true that during the debate in committee in the House of Lords Lord Allen of Abbeydale moved an amendment to abolish the immunity which he afterwards withdrew (Hansard (H.L. Debates), 5 February1990, cols. 570-578). A similar amendment was moved but not voted on in Standing Committee D in the House of Commons (Hansard (H.C. Debates), 7 June 1990, cols. 325-340). It seems to me, however, that the government merely accepted what the judges had said in Rondel v Worsley [1969] 1 A.C. 191 at face value. It may be that even as recently as10 years ago they were right to do so. A number of the changes to which I have referred earlier in this speech were a result of the Act of 1990 itself (such as wasted costs orders) and later developments in civil procedure and the public funding of litigation. So I do not think that your Lordships would be interveni