In October 1995 the claimant (A) was tried for obtaining money by deception. She pleaded not guilty. In November 1995, whilst the trial was continuing, the judge met the defendants (R and P) in chambers and indicated that if A pleaded guilty to some or all of the counts against her, she would not receive an immediate custodial sentence. R and P then met A to try to persuade her to plead guilty, but did not mention the judge’s indication as to sentence. A refused to change her plea, was tried, found guilty, and sentenced to three years in prison.
A subsequently issued proceedings against R and P in May 2006. A preliminary issue was taken as to whether the claim was statute-barred.
Counsel for A argued that until the House of Lords’ decision in Hall v Simons1 in July 2000, which removed advocates’ immunity from suit, R and P were immune and thus no cause of action could have accrued against them prior to that decision. The six year limitation period had therefore started in July 2000 and the proceedings were properly commenced, within time, in May 2006.
Counsel for R and P argued that time began to run against A for limitation purposes in November 1995, despite the fact that R and P were immune from suit at that time. The claim was thus statutebarred. Further, he argued that Hall v Simons did not have retrospective effect, so that R and P remained immune in respect of their conduct in 1995.
Lloyd Jones J heard the trial of the preliminary issues. He analysed the judgments of the House of Lords in Hall v Simons, noting that the general rule was that when judges state what the law is, their decisions have a retrospective effect. Lord Hope had expressly stated his intention that the removal of immunity was only to have a prospective effect. However, Lloyd Jones J held that the remaining members of the House of Lords had decided that no immunity applied to the conduct relevant to that case, which took place in 1991.
In this case, the conduct of R and P which A sought to criticise took place in 1995, ie later than 1991. The judge held that by that date advocates did not enjoy immunity from suit, and it followed that there could have been no impediment to A suing in negligence for the alleged breach of duty by R and P once that breach had caused loss in the form of her imprisonment. There would have been a completely constituted cause of action and R and P would not have enjoyed any immunity from suit. Limitation therefore began to run in 1995, and the relevant six year period expired before A’s claim was issued in May 2006. The claim was therefore statutebarred.
In deference to counsel’s arguments, the judge went on to consider whether, had any immunity existed, it could have prevented the accrual of a cause of action in favour of A in 1995. The judge reviewed the authorities on accrual of a cause of action, and concluded that the immunity would not have prevented a cause of action accruing here. This was because the immunity was from suit, not from legal liability. Thus time for limitation purposes would still have started to run in 1995 and the claim would have remained statute-barred.
This case highlights the practical difficulties with the evolution of the common law, with parties being fixed with the legal implications of future decisions with retrospective effect. Nonetheless, the judge took the view that the House of Lords clearly intended Hall v Simons to have retrospective effect.