Awoyami v Radford and another [2007] EWHC 1671 (Admin), [2007] All ER (D) 183 (Jul)
Queen’s Bench Division (Administrative Court)
Lloyd Jones J
12 July 2007
The decision of the House of Lords in Arthur J S Hall & Co (a firm) v Simons; Barratt v Ansell and others (trading as Woolf Seddon (a firm)); Harris v Scholfield Roberts & Hill (a firm) and another [2000] 3 All ER 673 (Hall v Simons) proceeded on the basis that the change in the law should operate retroactively to the conduct which formed the subject of those proceedings.
Geriant Jones QC (instructed by the Direct Public Access Scheme) for the claimant.
Justin Fenwick QC and Ben Elkington (instructed by Fishburns) for the defendants.
The assumed facts were that the claimant was charged with offences of dishonesty. At her trial in October 1995, she pleaded not guilty to all charges. She was represented by the defendant barristers. Some days into the trial, the trial judge informed counsel in chambers that if the claimant pleaded guilty she would not receive an immediate custodial sentence.
The defendants had a meeting with the claimant immediately afterwards, but did not inform her of the trial judge’s indication of sentence in the event of one or more guilty pleas. The second defendant did, however, strenuously attempt to persuade the claimant to plead guilty or face jail. Not having been informed of the trial judge’s statement, the claimant refused. The meeting became acrimonious. Following the meeting, and after receiving advice from the Bar Council, the defendants declined to act further for the claimant. New counsel were appointed. The claimant was convicted at the conclusion of the trial and sentenced to three years’ imprisonment.
She accepted subsequently that she was rightly convicted. In November 2000, the claimant wrote to the defendants informing each of them that she intended to commence proceedings against them for breach of retainer and negligence. She set out her case further in a letter of December 2000. Nothing further was heard from her, however, until June 2006 when she served the claim form in the instant case; it had been issued in May 2006. The defendants denied the allegations. The instant hearing was concerned with preliminary issues as to (i) whether the action was statute barred and (ii) whether—on the assumption that the defendants were immune from suit in 1995—they remained immune from suit in the light of the decision of the House of Lords in Hall v Simons.
MR JUSTICE LLOYD JONES:
On behalf of the claimant it was submitted that the effect of the decision in Hall v Simons was that the defendants no longer enjoyed immunity. Furthermore, it was submitted that no cause of action could accrue in the absence of a competent defendant. Accordingly, in the instant case no cause of action arose while the defendants enjoyed immunity. That immunity was only removed by Hall v Simons with effect from 20 July 2000, the date on which the speeches in that case were delivered.
That was the first date upon which there was a person capable of being sued in respect of the negligence alleged. The six year limitation period only began to run against the claimant from that date. The claim form was issued in May 2006 within the six year period. The defendants submitted that time began to run against the claimant for the purposes of limitation in 1995, despite the fact that the defendants were then immune from suit in relation to their forensic conduct. Furthermore, when the decision in Hall v Simons was given, no cause of action arose for the first time, time did not begin to run for the first time on a pre-existing cause of action nor did time begin to run afresh on a pre-existing cause of action. Moreover, Hall v Simons did not have retrospective effect, with the consequence that the defendants remained immune from suit in respect of their forensic conduct in 1995.
The general rule was that when judges stated what the law was, their decisions had a retrospective effect: Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349. Prospective overruling would, therefore, be an exception to the general approach.
His lordship turned to the submission that the abolition of immunity in Hall v Simons was intended to have only prospective effect. It was clear that Lord Hope would have followed such a course. It would have been open to the other members of the House of Lords to adopt a similar approach. However it was clear that they did not do so. Had they intended to take such a radical approach they could have been expected to explain in terms that that was what they proposed to do, as did Lord Hope. The other members of the House decided that no immunity applied to the conduct in question in those appeals, all of which conduct occurred in 1991. That left the question as to when advocates ceased to enjoy immunity. Assistance was provided by the fact that in each of the three appeals before the House of Lords in Hall v Simons the alleged negligent conduct had taken place, in 1991. Although the appeals concerned civil proceedings, the majority of their lordships considered that there was no longer any justification for immunity in respect of civil or criminal proceedings. There was nothing to suggest that that development occurred at a more recent date for criminal proceedings than civil.
In the instant case, the conduct of the defendants occurred in 1995. By that date advocates no longer enjoyed immunity in respect of civil or criminal proceedings. There could accordingly have been no impediment to the claimant suing in negligence for the alleged breach of duty by her professional advisers once such breach had caused loss in the form of her imprisonment. The claim was therefore statute barred. It was unnecessary to consider whether, had any immunity existed, it could have prevented the accrual of the cause of action. His lordship would have held that even if the rule of advocates’ immunity had subsisted in 1995 it would not have prevented the accrual of a cause of action and would not have prevented the running of time for the purposes of limitation.
