press release
Awoyomi v Radford [2007] EWHC 1671 (QB) – Barristers' immunity from suit
20 July 2007
It is hard to believe that this recent
case dealing with immunity from suit and limitation will not
be subject to an appeal.
The case concerned a client who alleged that
she had been given the wrong advice about pleading guilty, leading
to her having to spend three years at her majesty's
pleasure. The advice was given in 1995, predating the decision
in Hall v Simons [2002] 1 AC 615, which did away with
barristers' immunity from suit. That decision was given on 20
July 2000.
After Hall v Simons, the Claimant
decided that there was now no bar to bringing proceedings, but did
not issue proceedings until 2006.
The Judge in this first instance case had to
decide whether Hall v Simons had retrospective effect, or
only prospective effect, so that there was no immunity in 1995 and
whether the claim was statute-barred.
This led to an interesting academic debate
about whether later court decisions change the law retrospectively
or declare how it has always been. The judge considered that
it was a fiction to say that the law never changed and the earlier
decisions were wrong in law, and that the later court decisions
changed the law. He found that the effect of Hall v
Simons was that there was in fact no immunity from suit in
1995. In fact, the judge concluded, a procedural bar does not
prevent the accrual of a cause of action, so that even if there had
been immunity from suit in 1995, that would not prevent time from
running for limitation purposes.
This is quite an unfair decision, because the
Claimant had no way of knowing until after Hall v Simons
in 2000 that there was no obstacle to bringing a claim, leaving her
with only a year to bring proceedings after the decision in
Hall v Simons. The decision appears to have the
opposite effect to that intended, in that the retrospective removal
of the immunity from suit has resulted in this claim being
statute-barred. Other Claimants who had suffered negligent
advice 6 years before Hall v Simons, but who had decided not to
bring proceedings based upon the law as set out in Rondell
& Worsley [1969] 1 AC 191 and Saif Ali v Sydney
Mitchell & Co [1980] AC 199, would be unable to bring
claims because they would be statute-barred.
It would perhaps be unfair if immunity from
suit which restricts access to the Courts is treated in the same
way as the limitation of the substantive scope of duty, or
non-liability (e.g. fire brigades), because the Claimants have been
prevented from bringing claims because of a procedural bar for
policy reasons, rather than because of the incremental development
of the common law. As the law currently stands (and unless an
appeal is forthcoming), this case throws up an interesting question
for claimants with claims against expert witnesses, witnesses or
judges (for example), who also have immunity from suit. If
they think that the immunity from suit is eventually likely to be
removed retrospectively, should they not be issuing proceedings
within 6 years of the alleged breach, in order to protect
themselves, rather than risking their claims being statute-barred
when the immunity is removed, and would it be negligent of their
representatives not to advise them to do so?
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