GREEN v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a United Kingdom national, born in 1930 and living in Harrogate. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 October 1988, after a marriage of thirty-four years, the applicant’s husband, Mr G., petitioned for divorce. A decree nisi was granted on 6 February 1989. The applicant meanwhile had been seeking legal advice from solicitors concerning inter alia whether to contest the divorce and ancillary matters. Legal aid was granted to the applicant on a limited basis on 29 March 1989 concerning ancillary relief. On the same date the decree absolute of divorce was granted. On 11 April 1989, Mr G. swore an affidavit as to his financial circumstances. On 28 April 1989, the applicant swore an affidavit in support of her application for ancillary relief and in reply to Mr G.’s affidavit. Directions for the conduct of the dispute on ancillary matters were given by the County Court on 10 May 1989. Lists of documents were provided in late May-early June 1989. There was correspondence between the applicant’s solicitors and Mr G. about a possible settlement. Her solicitors stated that they were willing to settle for a capital sum and 400 pounds sterling (GBP) per month as maintenance. Mr G.’s counter offer was GBP 60,000 out of the sale of the matrimonial home and GBP 275 per month. The applicant rejected the counter offer. The hearing date was set for 3 August 1989. The applicant was requested by the solicitor to attend to meet counsel before the hearing began. Her solicitor took attendance notes of this meeting which took place shortly before the hearing was due to begin. According to this note, a decision was reached that it be more advantageous for the applicant to effect a clean break and obtain an enhanced interest in the proceeds of sale of the matrimonial home than pursue future periodic payments. After negotiation with Mr G., a figure of GBP 72,000 was agreed upon (some 68% of the valuation of the property) and that Mr G would pay the costs. A consent order was made by the court reflecting these terms under section 33A(1) of the Matrimonial Causes Act 1973. Shortly afterwards, the applicant expressed dissatisfaction with the terms of the settlement. She sought legal advice concerning the possibility of appealing the consent order and was advised by counsel that there were no grounds of appeal. The applicant wrote letters of complaint to the County Court about the order and was informed that she had agreed to the Consent Order. She made complaint to the Solicitor’s Complaints Bureau in or about 1990. On 25 February 1991, after inviting her solicitors comments, the SCB concluded that the applicant had been “properly represented” and had reached her decision with the benefit of full legal advice. On 16 April 1991, the applicant complained to the Legal Services Ombudsman, who in March 1992 concluded that no further action was justified. In or about July 1992, the applicant instructed new solicitors IM, with a view to commencing proceedings against her former solicitors for negligence in advising her to accept the settlement, which had caused her significant loss, inter alia, of pension and inheritance entitlements which had not been taken properly into account. Legal aid was granted in or about July 1992. Counsel advised at this stage that she had good prospects of success in establishing negligence and would probably recover some GBP 27,500 to 34,000 damages. A writ was issued against the former solicitors in the High Court on 3 August 1994. In their defence, served in February 1995, the former solicitors claimed inter alia that they had relied on and been entitled to rely upon advice of competent and properly instructed counsel, Ms A. In February 1996, the former solicitors made a payment into court of GBP 10,000. The applicant was informed that if the court later awarded a smaller sum, she would liable in costs for the intervening period. Counsel advised that her prospects of securing more in court were good and the payment into court was not accepted. A further offer of settlement of GBP 20,000 plus costs was also rejected. Counsel advised the applicant at that stage that she should not settle for less than GBP 30,000. On 19 May 1997, the former solicitors increased the payment into court to GBP 25,000. On 10 July 1997, the Court of Appeal decided, in the case of Kelley v. Corston, that, for public policy reasons, a barrister was immune from suit for negligence in the conduct of a case where a settlement had been reached and a consent order made under the 1973 Act, which by law required the approval of the court. On 15 August 1997, the former solicitors sent a copy of the decision to the applicant’s solicitors IM. On 28 August 1997, counsel advised the applicant to accept the payment into court of GBP 25,000. He noted that the Court of Appeal’s judgment “has, to put it mildly, flaws in its reasoning”. However despite his strong doubts that it had been correctly decided, it had to be accepted that on one view of the Court of Appeal judgment, and if it was not overturned on appeal to the House of Lords, the applicant would not be entitled to any compensation at all. Having regard to the new element of uncertainty introduced by Kelley v. Corston, he considered that it was in her best interests to accept the payment into court. On 29 August 1997, IM solicitors sent the applicant a copy of the advice and informed her that a refusal to accept the advice was likely to lead to a discharge of the legal aid certificate. Reluctantly, the applicant accepted the payment-in and the claim against her former solicitors was struck off. For more than two centuries, barristers enjoyed an immunity from actions in negligence. In the case of Rondel v. Worsley ([1969] 1 A.C. 191) the House of Lords unanimously upheld the immunity for alleged negligent conduct of a case in court on considerations of public policy on the basis inter alia that “it would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to his client” and also due to the undesirability of relitigating issues already decided. Though their Lordships were not unanimous about the exact scope of the immunity, they agreed that it should in general terms be confined to acts concerned with the conduct of litigation and should not apply to non-contentious work. The immunity was again considered by the House of Lords in the case of Saif Ali v. Sydney Smith Mitchell & Co. ([1980] A.C. 198), where the majority, applying the test from the Rees v. Sinclair case in New Zealand, found that the immunity only applied to work so intimately connected with the conduct of the case in court so as to amount to a decision as to how it would be conducted at the hearing. A failure by a barrister to advise parties about the expiry of a limitation period therefore was found to fall outside the immunity. Doubts were further expressed as to the various rationales given for the immunity. Another line of authority applied the doctrine of abuse of process to avoid relitigating between different parties issues already decided by a court of competent jurisdiction or, as sometimes described, to avoid a collateral challenge to an earlier judgment or order of the court (see e.g. Hunter v. Chief Constable of the West Midlands [1982] A.C.529). This had been applied in a number of cases brought against lawyers, for example, in Somasundaram v. Julius Melchior ([1988] 1 WLR 1394), where the plaintiff’s claim against solicitors for wrongly pressurising him to plead guilty in a criminal case was an abuse of process as the action necessarily involved an attack on the conviction and sentence imposed on him by the trial judge and upheld by the Court of Appeal. In the case of Kelley v. Corston ([1998] QB 686, judgment given on 10 July 1997), on the day of a hearing of a matrimonial ancillary application, the plaintiff’s barrister had advised her to reach a settlement agreement and this was embodied in a consent order by the court. The plaintiff brought proceedings in negligence against the barrister for negotiating and advising her to accept a settlement which left her unable to finance the mortgage repayments on the matrimonial home after it had been transferred into her name. The Court of Appeal upheld the decisions striking out the action on the basis of forensic immunity of advocates. Though Judge LJ considered that the settlement of litigation was not normally encompassed within the principles on which the immunity of the advocate was based, and that there were no public policy considerations justifying a blanket immunity from suit for negligent advice which results in the settlement of a claim, he considered that, where the court had given approval of the settlement and assumed responsibility for the merits of the consent order, the advocate could claim immunity from suit for his role. Pill LJ and Butler Sloss LJ appeared to consider, though with different reasoning, that a consent order made and approved under the Act of 1973 had such an intimate connection with the conduct of the case in court that it came within the Rees v. Sinclair test. The Kelley v. Corston judgment was distinguished shortly afterwards in the case of Frazer-Harris v. Scholfield Roberts and Hill (QBD, 13 May 1998) where the plaintiff was suing her solicitors for their advice to settle her ancillary application against her husband at the court door. Toulson J had held that public policy did not require protection of solicitors for negligence in relation to their conduct before a case reached court. Although the court had approved the consent order, the wife had alleged that, due to the solicitors’ negligence, the court had given its approval without all the relevant facts. If through the negligence of a party’s legal adviser a judge was not properly informed, and therefore exercised his discretion on a flawed basis, it was not contrary to public policy to allow the wife to sue the legal adviser for negligence. Both the barristers’ immunity and issues concerning abusive challenge of previous court decisions and orders were considered in the case of Arthur J.S. Hall and Co. v. Simons and Others. This concerned three cases in which clients raised claims in negligence against firms of solicitors in respect of settlements of claims resulting in consent orders by the court and where the solicitors relied on the immunity of advocates from suit. On 14 December 1998, the Court of Appeal found that the immunity did not apply in these cases. It held that there was no general rule that counsel was, or was not, immune from liability in settling a case or in advising a client to settle. The existence of the immunity depended on the facts of the particular case and whether public policy required it in those circumstances. It found that the Kelley v. Corston case was a very difficult case to follow and apply, or to derive any clear principle from. On 20 July 2000, by a majority, the House of Lords held that the solicitors were not entitled to rely on an immunity in these civil actions and that there were no longer any public policy considerations requiring that such an immunity be retained. Several of their Lordships commented that they would be in favour of some form of the immunity remaining for advocates in criminal cases.