All advocates are equal, but are some advocates more immune from suit than others? The Privy Council says Yes.

On 11 October 2016, the Privy Council handed down its opinion in the case of Janin Caribbean Construction Limited v Wilkinson [2016] UKPC 26, on appeal from Grenada.

The appeal arose out of a claim made by Janin Caribbean Construction Limited (“Janin”) against Mr. Ernest Clarence Wilkinson (“Mr Wilkinson”, who was subsequently appointed a QC) for damages for breach of a duty of care said to have been owed to Janin for failure to exercise reasonable care and skill in acting for Janin in defence of a personal injuries action brought against Janin by Robert Francis arising out of injuries sustained by him while working for Janin as long ago as 15 May 1993.

The principal case against Mr Wilkinson was that he failed to turn up at the trial of the action on 17 January 1995. He was at that time said to have been simply “holding papers” on behalf of the Attorney of Record, Mr Armand Williams QC.

The Privy Council identified six issues that had been raised by the appeal:

 (1) Who, if anyone, was Mr Wilkinson representing when he held papers on behalf of Mr Williams, the Attorney of Record?

(2) Did Mr Wilkinson owe a duty of care to Janin?

(3) Was Mr Wilkinson immune from suit in Grenada?

(4) If he owed a duty of care was he in breach of duty?

(5) If so, should the Board determine issues of causation or remit them to the courts below?

(6) If such issues are not remitted, was any breach of duty causative of loss and, if so, what is the measure of damages?

In Lord Clarke’s opinion, however, the third issue was dispositive of the appeal, and so the Privy Council declined to decide the other five issues (interesting though they were).

The reason the third issue was dispositive of the appeal was because the Privy Council accepted that advocates in Grenada continue to be immune from suit with respect to their conduct of litigation and advocacy.

The advocate’s immunity from suit was identified by the House of Lords in the case of Rondel v Worsley, which was decided in 1967 (nearly 50 years ago). That case was concerned with the position of a barrister. The House of Lords held that a barrister was immune from a claim for negligence in respect of his conduct of litigation.

In Saif Ali v Sydney Mitchell & Co [1980] AC 198, which was decided in 1978, the House of Lords held by a majority that a barrister’s immunity from suit extended only to those matters of pre-trial work which were so intimately connected with the conduct of the case in court that they could fairly be said to be preliminary decisions affecting the way the case was conducted when it came to a hearing.

However, the House of Lords subsequently held in Arthur JS Hall & Co v Simons [2002] 1 AC 615 that the public policy upon which the immunity in those cases was based was no longer applicable in England.

Accordingly, if Janin’s case had been heard in England today, Mr Wilkinson would not have been immune from suit under the principles developed in Rondel v Worsley and Saif Ali, given the subsequent decision in Hall v Simons.

The question for the Privy Council was whether the Rondel v Worsley and Saif Ali principles continued to apply to the facts of this case in Grenada.

The Privy Council concluded (somewhat surprisingly, some might say) that Rondel v Worsley and Saif Ali have always reflected the law of Grenada and continue to do so, essentially for three reasons.

First, the English House of Lords decision in Hall v Simons (which is not binding in Grenada, although potentially persuasive) essentially decided that the traditional reasons for the barrister’s immunity from suit (including the duty to the court, the cab rank rule, and objections to secondary litigation) were points of policy which were no longer as weighty in England and Wales as they had once been.

Secondly, the weight to be attached to these factors is very much a matter of local policy, which may differ in Grenada from that of England and Wales.

Thirdly, the subsequent enactment of section 25 of the Legal Profession Act 2011 in Grenada enabled the Privy Council to see that the policy considerations have not changed in Grenada. The Privy Council felt that it would have been absurd for it to conclude that the local policy had changed when Hall v Simons was decided in England and Wales, and then returned to square one when Parliament intervened in Grenada.

In all the circumstances, the Privy Council concluded that the principles in Rondel v Worsley and Saif Ali represented the law as applied in Grenada, and that Mr Wilkinson was accordingly immune from suit.

In the light of the decision of the majority of the House of Lords in Saif Ali that the principle in Rondel v Worsley extended to solicitor advocates, as much as to barristers, the Privy Council accepted that the immunity in Grenada must extend to solicitor advocates and, on the facts, included Mr Wilkinson.

The Privy Council noted, therefore, that this was an example of a case in which the common law in other jurisdictions has developed differently from its development in England and Wales. In particular, it was an example of the principle identified by the Privy Council in Isaacs v Robertson (1984) 43 WIR 125 at 130; [1984] 3 All ER 140, 143, where the Privy Council held that matters of practice and procedure “are best left to be developed by the courts of the country concerned, with whose decisions as to the operation of the rule this Board would be reluctant to interfere.”

As a result of Mr Wilkinson’s immunity from suit, the Privy Council declined to engage with the other issues raised by the appeal.

The Privy Council’s decision is a fascinating one: and it begs the question whether or not the common law in British Overseas Territories such as Bermuda, the Cayman Islands, and the BVI, and in Crown Dependencies such as Jersey, Guernsey and the Isle of Man, relating to the issue of advocates’ immunity from suit, is more aligned to the Grenadian position (given that the Privy Council’s jurisprudence is binding in those jurisdictions), or more aligned to the English position.

It appears as if the Privy Council is suggesting that this is a matter for the local Courts to decide on a case by case basis, and in accordance with local conditions.

It is also worth noting that the issue has been looked at by higher courts in other common law jurisdictions, including Canada and Australia, with inconsistent results.

As George Orwell might have put it, had he decided to write a novel called Advocates’ Farm: “All advocates are equal: but some advocates are more immune than others“.

 

 

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