Friday Law Report: No general immunity for advice to settle

18 December 1998 Arthur J.S. Hall & Co (a firm) v Simons and other appeals Court of Appeal (Lord Bingham, Lord Chief Justice, Lord Justice Morritt and Lord Justice Waller) 14 December 1998

THERE WAS no general rule on the question of a lawyer's immunity from liability for negligence in advising a client to settle a case.

The Court of Appeal all-owed three of four appeals which had been listed and heard together, but dismissed the fourth.

The following questions of law had arisen on the appeals: the extent and circumstances in which a lawyer's immunity from suit in relation to the allegedly negligent conduct of a case in court protected him against claims for allegedly negligent acts and omissions which had taken place out of court; whether a lawyer, if not otherwise immune from a claim in negligence by a client, became so when the court approved a consent order, particularly in matrimonial proceedings in relation to ancillary relief; and whether, in such circumstances, it was an abuse of the process of the court to claim damages against a lawyer for alleged negligence leading to the making of a consent order.

Rupert Jackson QC, Norman Wright and Sian Mirchandani (Weightmans, Liverpool) for Arthur J.S. Hall & Co; Andrew Edis QC (Hill Dickinson Davis Campbell, Liverpool) for Mr Simons; Martin Pointer QC and Stephen Trowell (Cooper Whiteman) for Mr Barratt; Lord Meston QC and Rupert Jackson QC (Reynolds Porter Chamberlain) for Woolf Seddon; Mr Cockbone appeared in person; Rupert Jackson QC and Christopher Critchlow (Wansbroughs Willey Hargrave, Leeds) for Atkinson Dacre & Slack; Peter Duckworth and Nicholas Bowen (Stephens & Scown, Exeter) for Mr Harris; Rupert Jackson QC and Jeffrey Bacon (Bond Pearce, Exeter) for Scholfield Roberts & Hill.

Lord Bingham CJ said that the main features of the law in a case where a legal adviser sought to restrain further prosecution of proceedings against him by a plaintiff for whom he had acted in an earlier case, and who claimed that his negligence had led to an outcome less favour- able than the plaintiff would and should have achieved but for the negligence, were as follows.

The first question was whether the plaintiff's claim represented an abusive collateral challenge to the earlier judgment of the court: if it did, the claim would ordinarily be dismissed or struck out.

In deciding that question it was aways necessary to consider the nature and effect of the earlier judgment, the nature and basis of the claim made in the later proceedings, and any grounds relied on to justify the collateral challenge, if was found to be such.

Where the later proceedings did constitute a collateral attack they might, and ordinarily would, be an abuse of the process unless the plaintiff could properly allege a breach of duty which either deprived him of a reasonable opportunity of appreciating that better terms were available whether on settlement or at a contested hearing, or placed him in the position of having to accept a settlement significantly less advantageous or more disadvantageous than he should have had.

A plaintiff seeking to mount a collateral challenge to an earlier judgment or order would be required to explain why steps had not been taken to set aside or challenge the judgment or order complained of in the original proceedings: it would never be enough that the plaintiff was suffering from post-settlement remorse.

Pending reconsideration of Rondel v Worsley [1967] 3 All ER 993 and Saif Ali v Sydney Mitchell & Co (a firm) (P, third party) [1978] 3 All ER 1033 by the House of Lords, the ratio of those cases was binding on lower courts.

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