Wright v Paton Farrell - 1st Division of the Court of
Session - 10th February 2006
In a break with a recent decision of the House of Lords the
First Division of the Court of Session (the highest civil court in
Scotland) has determined that a solicitor advocate acting in a
criminal trial enjoys an immunity from the risk of a civil claim
for damages.
Mr Wright was charged with the theft of a motor car and
contravention of a number of sections of the Road Traffic Act 1988.
He instructed a firm of solicitors to act in his defence of those
charges and one of the partners of the firm (a solicitor advocate)
appeared on his behalf at the trial.
Mr Wright maintained that during the course of the trial there
was some confusion about the date when the alleged offences were
said to have taken place. This confusion was shared by his
solicitor and resulted in a poor impression being given by him to
the jury when he was examined by his solicitor on oath.
In consequence Mr Wright was convicted but appealed arguing that
because of the inadequacies in his representation he had not
received a fair trial and that his conviction therefore represented
a miscarriage of justice. That Appeal was allowed by the High Court
and his conviction quashed but only after he had spent a period of
time in jail. He then initiated his action of damages seeking
compensation for the losses sustained by him in consequence of his
allegedly negligent representation.
Mr Wright's claim for damages was dismissed and his Appeal to
the First Division of the Court of Session refused. Technically
this was on the grounds that his pleadings disclosed no sufficient
basis for an award of damages in his favour. In particular he
neither maintained that he was innocent of the charges levelled
against him nor alternatively that with adequate representation he
would never have been convicted in the first instance. The real
interest in the case is, however, the judgement (from two out of
the three Appeal judges) that a solicitor appearing on behalf of a
client in a criminal prosecution enjoys an immunity from any
subsequent civil suit for damages. That decision was reached on
pure public policy grounds.
For some time it has been recognised that inadequate
representation at a trial represents a prima facie basis for the
quashing of a conviction. In reaching any such decision the High
Court does, however, require to consider evidence made available by
the solicitor or advocate who acted on behalf of the accused at the
original Hearing. The Court considered that the prospect of a
subsequent civil claim might prevent them from providing the High
Court with all the assistance which it would require in order to
determine the guilt or innocence of the convicted person and that
this public interest overruled the private right to compensation.
In the words of Lord President Hamilton:
"...if the public interest in the due administration of
criminal justice is, as I believe it is, at risk of being
materially impaired if such an immunity is not acknowledged, then
the private interest in monetary compensation must yield to the
interest of the administration of criminal justice, including its
administration in the context of any Appeal by that accused against
a conviction arising out of the proceedings to which the complaint
of negligent conduct relates."