ON APPEAL
An appeal court’s functions are quite different from those of the court of first instance. The facts having been found at trial, the appellate judge(s) will review or revise the reasoned judgment of the trial judge.
(If the appeal is in the criminal jurisdiction, the appeal process in a jury trial will be reduced to due process and a limited appeal on the merits of the jury’s verdict.) The appeal court’s review or revision will be concerned with an assessment of the judge’s findings.Some cases intuitively excite the practitioner-law reformer. Others are designedly brought by individuals who view the individual’s right of access to justice to argue a wider public interest for their own ends, to challenge existing principles of law head-on. Both types of case are actively promoted and even assisted by pressure groups intent on pursuing their reformist agendas. Other cases induce in certain advocates the spirit of inquiry and testing of legal issues. In short, the legal system is in public perception inert, if not static; as such it invites the progressive advocate to advance the development of the system, if only in the practice and procedure of the courts.
When Norbert Rondel, a West London Rachmanite henchman, was convicted in May 1959 of grievous bodily harm to a doorkeeper of tenanted property, and sentenced to 18 months’ imprisonment, no one could have imagined for one moment that in February 1965 (just within the period of limitation) the role of the advocate at the Old Bailey proceedings would re-emerge in the form of civil proceedings to question the professionally cherished immunity of barristers from suits for professional negligence. Rondel v Worsley,[182] a House of Lords decision in 1967 thus became an extensively discussed issue of law reform. How it got its distinctive reformist label discloses a tale of tortuous litigation, initial professional resistance to change, and reformers’ failed advocacy, until ultimately (nearly four decades on) a long-established rule of English law was reversed by the House of Lords itself in 2001.
At his Old Bailey trial Rondel had been granted a dock brief, that outmoded method of legal aid for an impecunious defendant in the criminal courts, affectionately depicted in the fictional deeds of Horace Rumpole. The nominee of Rondel’s dock brief was an established practitioner at the Central Criminal Court, Mr Michael Worsley. Of all the regular performers there, he was a barrister renowned for his meticulous attention to detail; his earlier experience in the field of accountancy enhanced that particular skill. Any professional colleague would have insisted that he was the last advocate to be guilty of a lack of care in representing his client. Worsley’s unsuccessful attempt to persuade the Old Bailey jury in 1959 of an unattractive, even implausible defence did not deter the madness of his client. Once convicted and imprisoned, Rondel complained that Worsley had been incompetent in conducting Rondel’s defence, the allegations themselves being barely plausible. Armed with the citizen’s fundamental right of access to justice, Rondel nevertheless proceeded to issue a writ alleging negligence. The issue of whether Worsley had failed in his duty of care to Rondel was never put to the test; had it been, there could realistically have been only one answer. Rondel would have been given short shrift by the court. But Worsley, no doubt with supreme confidence of the result, applied to strike out Rondel’s claim as disclosing no reasonable cause of action. For at least 400 years, English law had declared that barristers could not be sued for anything done or said in the course of the forensic process. The action was duly terminated at the first instance. But Rondel had a right of appeal on the interlocutory issue.
There was no legal aid in the civil proceedings for Rondel, but undaunted he forged ahead, preparing a shambles of a statement of claim. His plight attracted the attention of a self-proclaimed law reformer and academic author on the legal process who, while teaching law full-time to students at the London School of Economics, nevertheless held a practising certificate as a solicitor.
Professor Zander had prepared a draft statement of claim in proper shape, but that did not overcome the legal point that a barrister could not be sued for professional negligence. The point of law was decided against Rondel by Mr Justice (later Lord Justice) Lawton. By this time, the testing of the legal professional’s immunity from civil suit had aroused widespread interest, such that the Court of Appeal gave Rondel leave to appeal. After obtaining that leave Rondel was assisted voluntarily by Professor Zander, who prepared for the members of the Court of Appeal a typewritten document of 116 pages setting out all the arguments and legal authorities in support of the contention that barristers were no longer immune for action for negligence. The Court of Appeal (composed of Lord Denning and Lords Justices Danckwerts and Salmon) agreed to receive this ‘brief’. While Lord Denning referred to it as a very valuable document, Lord Justice Danckwerts in his judgment deprecated the practice of a litigant proffering to the court a submission written by a lawyer assisting him. That judicial attitude would not prevail today, since the practice of intervening parties would replace the unsolicited brief from an unrepresented litigant.Professor Zander’s document was indeed not merely impressive as a piece of legal scholarship; it proved to be invaluable, since it formed the basis of counsel’s legal submissions made to the House of Lords after the Law Lords had granted Rondel leave to take his case to the final court of appeal. If the legal system appeared to provide the optimum opportunity for testing an important point of law, there was little desire in the public authorities to echo the judicial initiative. The legal aid authorities rejected Rondel’s application for leading and junior counsel to be briefed in the House of Lords at public expense on the ground that it appeared to the committee ‘unreasonable’ that Rondel should receive legal aid, in the circumstances of the case.
A judicial review of the legal aid committee’s decision failed. Rondel appeared, represented by junior counsel, instructed by Professor Zander, without fee.Despite, at its outset in 1965, an unpromising prospect for change in the law, the case was propelled thereafter by the zest of the advocates for Rondel for law reform. The upholding by the Law Lords of the advocates’ immunity was in practice a loosening of the established rule. Hitherto the rationale for the profession’s protection against disgruntled clients took a decisive turn which envisaged ultimate abandonment of the immunity. Barristers, it was argued rather absurdly, but effectively, received payment for their services only as an honorarium and not as a contractual liability. So they could not be sued. Such a spurious and antique ground for the immunity could not survive twentieth-century judicial scrutiny. A study of Lord Reid’s judgment (the lead of five separate judgments) put the basis for the immunity squarely on the grounds of transient public policy. The peculiar nature of the barrister’s duty to the court was reflected in a peculiar approach to the obligations of the profession - in fact, the profession of advocacy, since the Law Lords included the solicitor-advocate, who had not, until then, shared the same protection. Moreover, public policy was not immutable. Lord Reid contemplated that changing practice in legal services to litigants might be reflected in a change in public policy. So it has proved to be.
The House of Lords’ decision in 1968 had a unique consequence for me, counsel for Rondel. Some years later, in Spring v Guardian Insurance Co,[183] Lord Lowry said this:
In marshalling my thoughts on public policy I have drawn freely upon the argument in Rondel v Worsley [1969] 1 AC 191 at 203 of Louis Blom- Cooper whose submissions, although not rewarded with success in that appeal, strike me as particularly appropriate in the context of the present case.
Can any losing advocate have received a more rewarding consolation prize than that? But even that was not the end of the Rondel v Worsley saga for me.
When I sat as a justice of appeal in the Court of Appeal for Jersey in 1996 the issue arose whether the law of Jersey was bound by a House of Lords decision. Sir Godfray Le Quesne, the doyen among us mainland counsel who were appointed to the two Courts of Appeal for the Channel Islands, criticised my judgment assenting in the decision not to strike out the plaintiff’s action in Picot v Crills.[184] I concluded that only a decision of the Judicial Committee of the Privy Counsel bound the courts of Jersey: the decisions of the House of Lords were only powerfully persuasive. I went on, with a hint of diffidence, to cite Lord Lowry’s words of comfort and hold that Rondel v Worsley was no longer good law in Jersey:Modesty compels me to say that the compliment [paid by Lord Lowry] does no more than hint that public policy considerations today might support, in Lord Lowry’s eyes, the demise of the barrister’s immunity. Indeed, I may be so bold as respectfully to repay the compliment, and to draw on Lord Lowry’s approach to the court’s application of public policy - that unruly horse which judges ride at their peril, a particularly dangerous standard if it is employed to oust some fundamental right.
‘[Public policy] is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from sound law. It is never argued at all but when other points fail',
per Burrough J in Richardson vMellish (1824) 2 Bing 229 at 252, [182434] All ER Rep 258 at 266. Lord Lowry [whose Chief Justiceship of Northern Ireland during the ‘troubles' was distinctive in upholding the independence of that judiciary at a time of civil conflict], in the context of careless misstatements in an employer's reference said ([1994] 4 LRC 302 at 326-327, [1995] 2 AC 296 at 325-326):
‘The defendants' second argument (which, in order that it may prevail, must be made to stand independently on its own feet) is that, even if one concedes foreseeability and proximity and even if it would otherwise be just and reasonable for the plaintiff to recover under the head of negligence, public policy dictates that the person who has been the subject of a negligent misstatement shall not recover.
The argument is grounded on the proposition that the maker of the misstatement, provided he has acted in good faith, must, even if he has been negligent, be free to express his views in the kind of situation (including the giving of any reference) which is contemplated by the doctrine of qualified privilege which is part of the law of defamation. This argument falls to be considered on the assumption that, but for the overriding effect of public policy, a plaintiff who is in the necessary proximate relation to a defendant will be entitled to succeed in negligence if he proves his case. To assess the validity of the argument entails not the resolution of a point of law but a balancing of moral and practical arguments. This exercise could no doubt produce different answers but, for my own part, I come down decisively on the side of the plaintiff. On the one hand looms the probability, often amounting to a certainty, of damage to the individual, which in some cases will be serious and may indeed by irreparable. The entire future prosperity and happiness of someone who is the subject of a damaging reference which is given carelessly but in perfectly good faith may be irretrievably blighted. Against this prospect is set the possibility that some referees will be deterred from giving frank references or indeed any references. Placing full reliance here on the penetrating observations of my noble and learned friend Lord Woolf, I am inclined to view this possibility as a spectre conjured up by the defendants to frighten your Lordships into submission. I also believe that the courts in general and your Lordships' House in particular ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypo- thesi is a perfectly good cause of action. It has been said that public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists. Even if one should put the matter in a more neutral way, I would say that public policy ought not to be invoked if the arguments are evenly balanced: in such a situation the ordinary rule of law, once established, should prevail.' (Lord Lowry's emphasis.)In marshalling my thoughts on public policy in relation to the conduct of an advocate's conduct of the client's case, I begin by asserting the fundamental right of anybody to sue the professional person for negligence, without any legal hindrance to coming to court. In so reminding myself, I do not adopt a neutral stance. A citizen's right to unimpeded access to the courts can be taken away only by express enactment: see Chester v Bateson [1920] 1 KB 829, R & W Paul Ltd v Wheat Commission [1936] 2 All ER 1243, [1937] AC 139, Raymond v Honey [1982] 1 All ER 765 at 762, [1983] 1 AC 1 at 14 per Lord Bridge of Harwich. And here there is no ‘express enactment', only judge-made law. What aspects of public policy in 1995 are so powerful as to supplant or negative this fundamental right? And can they survive the impact of art 6 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953) Cmd 8969))?5
Five years later the House of Lords in Simmonds v Hall reversed its own decision. Their judgments made no reference to my bold departure from the law laid down in Rondel v Worsley, probably because counsel did not cite the Jersey case to their Lordships. I was spared any criticism from their Lordships for such forensic irreverence.
Unattractive individuals are attracted to advocacy for change. Prisoners in particular have plenty of time on their hands, and some devote their attention to pursuing claims in the courts. One of them, Steven Raymond, at one time in a life of professional crime a student of criminology, did much to advance the cause of prisoners' rights. Raymond v Honey,6 which found its way straightforwardly to the House of Lords via a two-judge court in the Divisional Court of the Queen's Bench Division, established the proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication. That proposition led to a striking down of a prison rule as ultra vires, since it interfered with a prisoner's fundamental or constitutional right of access to justice. Raymond had deliberately provoked a prison governor to prevent him from lodging an application to the High Court. The decision of
5 [1995] 2 LRC 247, 262.
6 [1983] 1 AC 1.
the courts, holding the governor to be in contempt of court, was predictable, even if it came about by a prisoner’s design. Raymond’s case was advanced mainly by his counsel uncovering a recent decision of the Supreme Court of Canada on precisely the same point of law (it was readily conceded without demur by counsel for the governor, Mr Andrew Collins (later Mr Justice Collins)). For the last 30 years, Raymond v Honey has spawned a raft of cases that continues to give prisoners the entitlement to judicial review of purported justification by prison authorities for infringements of prisoners’ rights. This represents a huge improvement on the days when prisoners’ right issues were not even considered justiciable, although it played no part in sustaining the constitutional right of a convicted prisoner to exercise the franchise during his incarceration. Advocacy can come from unexpected quarters in unexpected ways.