The risks for professionals advising clients in litigation are becoming harder to anticipate, say Mike Willis and Naomi Park
When abolishing advocates’ immunity in Arthur JS Hall & Co v Simons [2000] 3 All ER 673 seven years ago, one of the Law Lords’ justifications was that there were sturdy rules and powers available to the courts to dismiss, on grounds of abuse of process, actions against parties’ professional advisers by clients following unsuccessful litigation.
These principles are broadly embodied in overlapping traditional doctrines: “the Henderson principle” which disapproves the same issues being tried more than once; and “collateral attack”, whereby an attempt to retry an issue already tested in court is liable to be dismissed as abusive if it imputes that the first court got it wrong.
In Hall the House of Lords referred to the courts’ existing powers to prevent re-litigation of issues where it would be manifestly unfair or it would bring the administration of justice into disrepute. It did not define those powers further, preferring
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