Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

Fecha: 08-Oct-2025

Immunity from negligence claims by clients

Immunity from negligence claims by clients

26.

In Rondel v Worsley [1969] 1 AC 191 the House of Lords held that the existing rule protecting advocates from immunity from suit in respect of their conduct in court, remained apt (as it had been considered to be up until then) to bar claims for negligence against barristers by their clients. The rule was based on public policy; public policy was not immutable, but the policy justification for such protection withstood scrutiny.

27.

In Hall, some thirty years later, the House of Lords re-examined the issue, and concluded that the public policy arguments advanced in favour of maintaining advocates’ immunity from actions for negligence by their clients, including the cab rank rule and problems of re-litigation, did not justify displacing the fundamental principle that there should be a remedy for a wrong. In particular, the contention that an analogy with the core immunity warranted advocate immunity from negligence was rejected. Lord Steyn describing it as having “virtually no weight” since the public policy justification for the core immunity, namely encouraging freedom of speech in court so that the court will have full information about the issues in the case, had “little, if anything, to do with the alleged legal policy which requires immunity from actions for negligent acts” (see 679B-C). To similar effect, Lord Hope said at 714G:

“I think that there is a little more, but not much, to be said for the analogy with the immunity of others who participate in the proceedings which take place in court. At best it is only an analogy. It is a make-weight argument. Its significance lies in the fact that the other immunities exist because they also can be justified on grounds of public policy.”
(See also Lord Hoffmann at 697B-G)

28.

Additionally, the argument that immunity from negligence was necessary to ensure that barristers complied with their duty to the court was rejected. Reliance was placed on the high threshold that must be crossed to establish negligence. An advocate cannot be guilty of negligence unless they made an error that no competent member of the profession could have made. This was “an important element of protection against unjustified liabilities” (see Lord Hobhouse at 737H). As Lord Steyn explained, “the mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent” (see 681G).

29.

Jones adopted a similar analysis to negligence claims by clients against expert witnesses. Lord Phillips, echoing the approach of Lord Reid in Rondel (at 228), asked “whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable” (see [51]). A majority of the Supreme Court were not satisfied that any of the putative disadvantages to the public interest in abolishing expert witnesses’ immunity from negligence claims — reluctance to testify or to perform their duty to the court, harassment by vexatious claims, or a multiplicity of suits — justified its retention.

30.

To summarise:

It is a general principle that every wrong should have a remedy. Nonetheless, it is necessary for the proper administration of justice that advocates, parties, witnesses, judges, and jurors are immune from suit for statements made in court whatever the cause of action, regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. This is known as the core immunity. It is founded on public policy and is intended to encourage freedom of expression and communication in court proceedings in order to protect the proper administration of justice and the interests of justice.

ii)

The core immunity can be extended if the extension is necessary for the proper administration of justice, which is a strict test. There are two established extensions: witnesses and potential witnesses are immune from suit for statements made outside of court with a view to giving evidence. This extends to the preparation of evidence they are likely to give in court proceedings, including their preliminary examination to ascertain what they could prove. And investigators are immune from suit for statements made as part of the process of investigation.

iii)

The police may claim an extended immunity either as potential witnesses or for statements or conduct which can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated. Investigators are not immune with regard to statements which are wholly extraneous to the investigation.

iv)

In order for the core immunity and extensions to be practicable and effective, it must be foreseeable at the time of its making whether a statement will be immune.

Public policy can change over time and be re-evaluated. When an established immunity is re-evaluated or an extension to an established immunity is contemplated, careful justification is required for a departure from the principle that every wrong should have a remedy. There is an important distinction, however, between that position, and determining whether on its facts, a case falls within an established immunity. To impose a requirement of justification in the latter case, would fundamentally undermine the utility and purpose of the core immunity, and cut across the policy reasons for its existence (on this latter point, see further [65i] below). We would add that it was not suggested that there had been any material change in public policy considerations since Hall and Jones such as to justify a reconsideration of the scope of the core immunity.

vi)

As a consequence of the re-evaluation in Hall and Jones,advocates can now be liable to their clients for the negligent conduct of court proceedings and expert witnesses can be liable for breach of duty to those who retain them. Beyond that, advocates can still claim the core immunity.