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The English legal profession is distinguished by many historical oddities: bouffant 18th century wigs, a passion for Latin that even the Vatican has left behind, and a Byzantine belief that white, middle-class males make better lawyers. Yet, none of its idiosyncrasies can have caused as much debate as the concept of advocate immunity — now seemingly consigned to the past by the House of Lords’ judgment in Hall v. Simons and two other conjoined cases. Reaction has been predictably mixed. Patrick Gaul, partner at Weightmans, was acting on behalf of the solicitors involved in the case. He was delighted with the result. “I’m very pleasantly surprised. I have to say I thought immunity would stagger on. But this is very positive. It will clear up a confusing area and help to put barristers and solicitors on equal footing.” Added Gaul, “The removal of immunity is going to have very positive vibes for public perception of lawyers, putting our professions on an equal footing, not only with each other but those in the outside world.” Those whose interests are threatened by the removal of immunity are understandably more wary. Stephen Kramer QC, chairman of the Criminal Bar Association, gave a muted welcome to the changes. “It is a big step philosophically, but in practice, the advocates’ art is that of complying with standards to fulfill expectations in terms of fair trial and fair representation. I feel that the work of an advocate is an art, not a science, so even when advocates make errors of judgment, that does not constitute negligence. However,” Kramer said, “the Lords’ decision will be a spur for us to improve even more.” The historical reason for the existence of advocate immunity is simple. Until the middle of the 19th century, barristers were not required to have had any training whatsoever, and so, as Lord Hoffmann has observed, ” …before 1852 it was dangerous to contemplate the possibility that a member of the bar might be liable for substantial damages simply because he was ignorant of the law.” The unmitigated dinosaur that was forensic immunity extended to any act that was ” …intimately connected with the conduct of the case. …” A barrister might come to court drunk without any fear of a suit for negligence from the client. Aside from such professional closing of ranks, immunity has also been supported by the more principled concept of collateral challenge. The criminal court process would be undermined if defendants challenged verdicts by resorting to civil suit instead of the appeal court — the rightful place, so the argument runs, to right the wrongs of incompetent lawyers. LIMITS OF IMMUNITY In the last few years the limits of immunity have been explored in a number of related cases, such as Kelley v. Corston (1997). But these merely dealt with locating ambiguous areas, such as out of court settlements, as being within or without material behavior. The core of the concept remained, confirmed by Rondel v. Worsley (1969) and Ali v. Mitchell (1980). But as Hoffmann writes, ” …not to say that Rondel v. Worsley had been wrong at the time. The world had been different then. … there (have) been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions. It (is) once again time to re-examine the whole matter.” The law lords were also no doubt conscious of the implications of the Human Rights Act. Once implemented, its introduction of the European Convention into English law would have left immunity untenably irreconcilable with the stated entitlement to civil claims as outlined in Article 6. Fears that the legal process might be undermined without immunity are recognized by the law lords’ speeches, and a minority of three of the seven dissented, stating that immunity should remain in relation to criminal proceedings. This, they said, is in the interests of society, where the Crown is acting on behalf of the whole. While recognizing such concerns, clearly the majority are determined to right the perceived wrong of immunity. Gaul ascribes the strength of their feeling in part to Hoffmann’s and Lord Steyn’s experience in South Africa. “They’ve seen what it’s like to work in a jurisdiction without immunity, and they know it works,” says Gaul. “I think that’s why they’ve come out so strongly in favor of change: sheer affront at the injustice of the anomaly.” The consequences of the judgment will take time to emerge. Clearly there is a danger of a slew of secondary cases. What guarantee is there that the law courts will not become backlogged with unhappy legal losers seeking remedy by taking action against their advocates? In theory, there is a number of safeguards. The tough criteria of the Legal Services Commission would require that any cases against advocates are well-founded before they come to court. In addition, Civil Procedures Rule 24.2 ensures that cases are struck out when ” … the claimant (has) no real prospect of succeeding on the claim.” However, concerns remain. Francis Bacon QC is a leading professional negligence barrister. He wonders if the safeguards are sufficient. Asks Bacon, “Will the courts be able to strike out bad claims? Increasingly, litigants will bring their claims, where necessary even representing themselves.” He adds, “It’s extremely difficult to strike out applications. Yes, the LSC will not be funding everything, but increasingly, I see more and more claimants coming through.” Says Bacon, “The crucial issue is the stringent application of CPR 24.2. Otherwise, working out these new challenges will be fascinating, but there will be the danger that the rationale behind the law lords’ speeches will get lost in a rash of actions.” Despite such misgivings, the profession should benefit from the removal of a safeguard that was unique, anomalous and anachronistic and that did harm to the always fragile reputation of lawyers. The detailed effects of the lords’ ruling will emerge only on a case-by-case basis over the next few years. Says Gaul, “In five years’ time we will wonder what all the fuss was about.” By then, advocate immunity may come to be seen as having been a bizarre vestige of the past.

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