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[HOUSE OF LORDS] |
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Barrister - Negligence - Immunity from suit - Extent - Advice as to parties to litigation and pleadings - Whether action for negligence will lie at suit of client |
Barrister - Duty to court - Nature of - Need for independence and immunity |
The plaintiff was injured in a motor accident in March 1966 when there was a collision between a van in which he was travelling as a passenger and a car driven by a wife and owned by her husband. The wife subsequently pleaded guilty to driving without due care and attention. In 1967 both the plaintiff and the driver of the van consulted the defendant solicitors regarding a claim in respect of the accident. In October 1968 the solicitors instructed a barrister, the third party, to settle proceedings on behalf of the plaintiff and the driver of the van in respect of the accident and to advise. The barrister settled a draft writ and statement of claim claiming damages against the husband on the basis that he was the owner of the car and his wife had been driving as his agent. The writ was issued in November 1968 and served in August 1969. Before the three-year limitation period expired in March 1969 the solicitors consulted the barrister about allegations by the husband's insurers that there was contributory negligence by the driver of the van and that the wife was not driving as her husband's agent. The barrister did not advise any change in the writ or the statement of claim. The husband's defence to the action of October 1969 alleged that the accident was caused wholly or in part by the van driver's negligence; an amended defence admitted the wife's agency but that was denied by a re-amended defence. In April 1974 the plaintiff's action against the husband was discontinued. Any claim by the plaintiff against the wife or the van driver was by then time-barred. |
In September 1974 the plaintiff issued a writ claiming damages for professional negligence against the defendant solicitors in their conduct of his claim in respect of the accident of March 1966 in that they failed to advise him to take proceedings against either or both of the drivers concerned. In May 1975 the solicitors issued a third party notice against the barrister claiming an indemnity from him. The district registrar struck out the third party proceedings as disclosing no reasonable cause of action. Kerr J. allowed the solicitors' appeal. |
On appeal, the Court of Appeal reversed that decision holding that the advice tendered fell within the ambit of the immunity from an action for negligence granted to a barrister in respect of his conduct and management of a cause in court. |
On appeal by the solicitors:- |
Held, allowing the appeal (Lord Russell of Killowen and |
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Lord Keith of Kinkel dissenting), (1) that in principle those who undertook to give skilled advice were under a duty to take reasonable care and skill, and that a barrister's immunity from suit for negligence in respect of his conduct of litigation on the ground of public policy was an exception and applied only in the area to which it extended; that the immunity was not confined to what was done in court but included some pretrial work but that the protection should not be given any wider application than was absolutely necessary in the interests of the administration of justice and each piece of pre-trial work had to be tested against the one rule, namely, that the protection existed only where the particular work was so intimately connected with the conduct of the cause in court that it could fairly be said to be a preliminary decision affecting the way that cause was to be conducted when it came to a hearing (post, pp. 214E - 215G, 224A-D, 231A- C, 232A, E). |
(2) That on the assumption that the factual basis of the allegations of negligence was correct the acts complained of did not come within the above rule, and that, accordingly, there was no justification for striking out the third party claim (post, pp. 216A-B, 224F-H, 227E, 232F-G). |
Dictum of McCarthy P. in Rees v. Sinclair [1974] 1 N.Z.L.R. 180, 187 applied. |
Per Lord Wilberforce, Lord Diplock and Lord Salmon. The same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister (post, pp. 215G-H, 224A, 227H). |
Per Lord Wilberforce and Lord Salmon. The rule of immunity is quite distinct from the question what defences may be available to a barrister when he is sued. It by no means follows that if an error takes place outside this immunity area, a liability in negligence arises (post, pp. 215H, 231C-D). |
Decision of the Court of Appeal [1978] Q.B. 95; [1977] 3 W.L.R. 421; [1977] 3 All E.R. 744 reversed. |
The following cases are referred to in their Lordships' opinions: |
Anns v. Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492, H.L.(E.). |
Arenson v. Arenson [1977] A.C. 405; [1975] 3 W.L.R. 815; [1975] 3 All E.R. 901, H.L.(E.). |
Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164; [1951] 1 All E.R. 426, C.A. |
Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W.L.R. 1140, [1970] 2 All E.R. 294, H.L.(E.). |
Finnegan v. Allen [1943] K.B. 425; [1943] 1 All E.R. 493, C.A. |
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L.(E.). |
Herrington v. British Railways Board [1972] A.C. 877; [1972] 2 W.L.R. 537; [1972] 1 All E.R. 749, H.L.(E.). |
Launchbury v. Morgans [1973] A.C. 127; [1972] 2 W.L.R. 1217; [1972] 2 All E.R. 605, H.L.(E.). |
Marrinan v. Vibart [1963] 1 Q.B. 234; [1962] 2 W.L.R. 1224; [1962] 1 All E.R. 869; [1963] 1 Q.B. 528; [1962] 3 W.L.R. 912; [1962] 3 All E.R. 380, C.A. |
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Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77, H.L.(E.). |
Rees v. Sinclair [1973] 1 N.Z.L.R. 236; [1974] 1 N.Z.L.R. 180. |
Rondel v. Worsley [1967] 1 Q.B. 443; [1966] 3 W.L.R. 950; [1966] 3 All E.R. 657, C.A.; [1969] 1 A.C. 191; [1967] 3 W.L.R. 1666; [1967] 3 All E.R. 993, H.L.(E.). |
Sutcliffe v. Thackrah [1974] A.C. 727; [1974] 2 W.L.R. 295; [1974] 1 All E.R. 859, H.L.(E.). |
Tojo Maru, The [1972] A.C. 242; [1971] 2 W.L.R. 970; [1971] 1 All E.R. 1110, H.L.(E.). |
The following additional cases were cited in argument: |
Anderson (W. B.) & Sons Ltd. v. Rhodes (Liverpool) Ltd. [1967] 2 All E.R. 850. |
Attorney-General v. Jonathan Cape Ltd. [1976] Q.B. 752; [1975] 3 W.L.R. 606; [1975] 3 All E.R. 484. |
Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801; [1976] 2 W.L.R. 583; [1976] 2 All E.R. 5, C.A. |
Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587; [1943] 2 All E.R. 35, C.A. |
Liversidge v. Anderson [1942] A.C. 206; [1941] 3 All E.R. 338, H.L.(E.). |
Losner v. Michael Cohen & Co., April 29, 1975; Court of Appeal (Civil Division) Transcript No. 179B of 1975, C.A. |
Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384; [1978] 3 W.L.R. 167; [1978] 3 All E.R. 571. |
Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443; [1975] 3 W.L.R. 758; [1975] 3 All E.R. 801, H.L.(E.). |
Roy v. Prior [1971] A.C. 470; [1970] 3 W.L.R. 202; [1970] 2 All L.R. 729, H.L.(E.). |
Sirros v. Moore [1975] Q.B. 118; [1974] 3 W.L.R. 459; [1974] 3 All E.R. 776, C.A. |
APPEAL from the Court of Appeal. |
This was an appeal by leave of the House of Lords from an order of the Court of Appeal (Lord Denning M.R., Lawton and Bridge L.JJ.) dated May 13, 1977, allowing an appeal by the respondent, a barrister, from an order of Kerr J. made on February 24, 1977, allowing an appeal by the appellants' solicitors, in third party proceedings from an order made on July 26, 1976, by Mr. District Registrar Barrington-Ward striking out the third party notice and statement of claim and dismissing the third party proceedings on the grounds that the third party notice and statement of claim disclosed no reasonable cause of action against the third party. |
The issue arising in this appeal concerned the immunity of barristers |
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from suit for damages for negligence at the instance of their clients or for an indemnity or contribution at the instance of solicitors instructing them. The particular question in the appeal was whether a claim might be maintained against a barrister in respect of the advice given by him to his client and to his instructing solicitors as to the party to be sued by the client. |
The facts are set out in the opinions of Lord Wilberforce and Lord Salmon. |
Historically, whenever public policy was advanced in support of any immunity of barristers it was always in the context of proceedings in court. When it was for conduct outside court other reasons were given, for example, that a barrister could not sue in contract for his fees. This appears to be a valid distinction and therefore to allow public policy to extend into the other area should not be countenanced without the most careful consideration of its necessity. |
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If solicitors are only to enjoy the same immunity as barristers when doing "barristers' work" this would lead to an extraordinary artificial and subtle distinction. The only work that can be done wholly by a solicitor in relation to High Court litigation is the obtaining of a proof from a witness, apart from the client or an expert witness. It would follow that if there were to be general immunity then in future there would no longer be liability for the misconduct of litigation except where a solicitor fails to interview a potential witness who is vital to the case. There is then this subtle distinction, that a solicitor is liable if he fails to interview the witness who is therefore not available at the trial, but, if he is interviewed and is available and the barrister forgets to call him, no liability attaches to the barrister for this lapse. In other words, he can claim immunity in respect of virtually any negligence on his part. |
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Lawton L.J. (p. 468), the question may be posed in answer to his observations: Why cannot it apply to professional negligence? |
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(2) If the above contention be accepted then the question arises whether Rondel v. Worsley should be followed in the present case. For a discussion |
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That the immunity of counsel cannot depend on whether his acts took place inside or outside the door of the court is shown by the following examples: counsel amends his pleadings in court, immunity even although he is mistaken in so doing. Counsel amends the pleadings the night before trial, no immunity. Counsel half way through a trial considers, mistakenly, that he has no case and submits to judgment, immunity; counsel reaches this decision on the way from court to chambers and the next day submits to judgment, no immunity. These examples show that the criterion of the door of the court does not afford a coherent and logical principle on which to found immunity. |
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The following are examples where there is a conflict between the duty a barrister has to the court and that he has to the client. (i) It starts when counsel is asked to advise on liability for the purposes of the grant of a Legal Aid Certificate. Counsel may advise that although there is prima facie a good cause of action the lay client will not be believed. (ii) The lay client with a solicitor in conference with counsel urges counsel to start proceedings because he feels certain that if proceedings are commenced the proposed defendant will settle. (iii) Counsel is asked in conference whether there is not a defence which can be pleaded in order to stave off proceedings for summary judgment. Counsel wrongly and negligently believes that it would be a blackmailing procedure and answers the client in the negative. (iv) Disclosure of documents. Counsel negligently produces a document which is privileged. (v) Counsel negligently refuses to plead fraud. He fails to recognise the case as one of fraud but as the trial progresses it is increasingly plain that it is so but it is too late to amend. (vi) The example given by Lord Denning M.R. [1967] 1 Q.B. 443, 502B. This makes plain that the duty to the court does not begin the moment that counsel enters it. |
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The solicitor's liability where he acts on the advice of counsel is not a "grey area" as has been suggested. It is perfectly plain on the cases that where a solicitor takes advice of counsel and acts upon it he is not liable: (i) if proper instructions have been given and (ii) if the barrister is properly competent in the field in which he has been asked to advise and (iii) if the advice received from counsel is not such that would put a reasonably competent solicitor on enquiry that it may be wrong. The above statement of the law is supported by Halsbury's Laws of England, 3rd ed., vol. 36 (1960), p. 100, para. 136. See also Cordery's Law Relating to Solicitors, 6th ed. (1968), pp. 208, 209 and The Supreme Court Practice (1976), vol. 1, p. 310, note to R.S.C., Ord. 18, r. 19 (5)A. |
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Their Lordships took time for consideration. |
November 2. LORD WILBERFORCE. My Lords, in Rondel v. Worsley [1969] 1 A.C. 191, this House decided that a barrister was immune from any action for professional negligence in respect of acts |
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or omissions during the trial of criminal proceedings against his lay client. Now in this case it is necessary to decide whether the barrister's immunity covers pre-trial acts or omissions in connection with civil proceedings brought by his lay client. |
The plaintiff, Mr. Saif Ali, a passenger in a van driven by his friend, Mr. Akram, was injured on March 26, 1966, in a collision with a car driven by Mrs. Sugden, to whose husband the car belonged. There is no doubt that Mrs. Sugden was to blame, and possibly wholly to blame. On the instructions of solicitors the barrister settled proceedings and drafted a pleading on behalf of Mr. Ali and Mr. Akram against Mr. Sugden. This was on the basis that, as Mrs. Sugden was using the car to drive their children to school, Mr. Sugden was responsible for her negligence. Though, with hindsight, it might have been wise to sue Mrs. Sugden as well as her husband, the course adopted, to sue Mr. Sugden who was the insured party, was correct in law. Indeed it appeared at first that Mr. Sugden would not deny responsibility. However, when his insurers took charge of the matter, they suggested (a) that Mrs. Sugden's agency for Mr. Sugden might be disputed and (b) that a case of contributory negligence might be raised against Mr. Akram. The barrister was informed of this and instructions were sent to him to consider amendment of the pleading. By this time, February 24, 1969, such was the leisurely pace of proceeding, there was little time left before the three-year period of limitation from the date of the accident (on March 26, 1969) would expire. The barrister, however, so it is said in the third party notice, orally confirmed his advice that no amendment was necessary, on what date is not stated, and later, on April 1, 1969, advised in writing. When he did this the three-year period had elapsed, and the advice was that it was too late for the plaintiff to sue Mr. Akram. It was also, of course, too late to sue Mrs. Sugden. Mr. Sugden in his first defence dated October 16, 1969, denied Mrs. Sugden's agency, but by an amendment in June 1971 admitted it. Later still (apparently in June 1972) he asked leave to re-amend so as to deny the agency. This seems to have been agreed to unconditionally by the plaintiff's solicitors, and leave was given. Later, on the advice, it is said, of leading counsel, proceedings against Mr. Sugden were dropped, so the plaintiff, who started with an impregnable claim for damages, found after five years that he had nobody he could sue. He therefore brought proceedings against his solicitors for negligence, and the solicitors brought third party proceedings against the barrister. Later, the plaintiff also brought direct proceedings against the barrister. This appeal is concerned with the third party proceedings only. The Court of Appeal has struck them out on the ground that the barrister is immune from suit. |
It is important to see what is the precise negligence alleged. According to the amended third party notice the negligence consisted of: (i) delaying until after the expiry of the limitation period to advise whether the proceedings should be resettled in view of the non-admission by Mr. Sugden that Mrs. Sugden was driving as his agent and the possible negligence of Mr. Akram. (ii) Failing to advise until a late stage that there might be a conflict of interest between the plaintiff and Mr. |
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Akram. (iii) Failing to advise the plaintiff that he should take proceedings against Mr. Sugden and/or Mrs. Sugden and/or Mr. Akram and advising that proceedings should be issued against Mr. Sugden only. |
For the purposes of this appeal it has to be assumed that the factual basis for these allegations (as set out above) is correct, that there was some degree of negligence on the barrister's part as regards one at least of the three matters, that such negligence resulted in damage and that the solicitors are entitled to indemnity or contribution from the barrister. All of these assumptions may turn out to be incorrect if the matter goes to trial, but cannot be challenged at this stage. |
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of barristers' immunity for acts in court without relating this to their immunity for other acts. As I shall shortly show, their Lordships attached the immunity to the conduct of litigation. But litigation takes some time to arrive in court for trial, so unless they were prepared to confine the immunity to that part of litigation which occurs in the court room, it was not only appropriate but necessary to deal with such acts - in relation to litigation - as occur outside the court room. A statement of principle which stopped at the door of the court would have been truncated and irrational. These factors, in my opinion, tell in favour of giving considerably more weight to their Lordships' expressions of opinion than obiter dicta normally receive. We may clarify them, but we should hesitate before disregarding them. |
Lord Reid considered that there was no doubt about the position of barristers appearing in court (p. 227). Then he introduced the phrase "their work in conducting litigation" (p. 231D). He made this more explicit when he said, "The same public duty applies when drawing pleadings or conducting subsequent stages in a case as applies to counsel's conduct during the trial" and "the same will apply at a stage when litigation is impending" (pp. 231-232). It is clear from this that his Lordship was not seeking with any precision to define the limit of immunity but that his thinking was in terms of litigation - more broadly than of work in court. |
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fair to say drew the line between litigation and paper work. Lord Pearce's expressions were wider: there is no distinction "between the liability of a barrister in litigation and in his other non-litigious work as a barrister" (p. 265B). He held that a counsel in giving opinions "not only those on which an action is to be started or not started" owes a duty to the court (p. 276F). Lord Upjohn held that the immunity covers litigation "at all events in matters pertaining to litigation" (p. 281D) and that it must "start before counsel enters the doors of the court to conduct the case" (p. 285F). He continued, at pp. 285-286: |
"He will have had to give fearlessly to his client advice on the prospects of success, he will have settled the pleadings; and on discovery and in his advice on evidence and on many other matters he may have had to refuse to adopt his client's wishes. As a practical matter, I do no more than suggest that the immunity of counsel in relation to litigation should start at [the] letter before action ..." |
Finally Lord Pearson used words of exclusion. He asked, "Does the barrister's immunity extend to 'pure paper work,' that is to say, drafting and advisory work unconnected with litigation?" (p. 293F). |
My Lords, none of these expressions is precise, in the nature of things they could not be, but they show a consensus that what the immunity covers is not only litigation in court but some things which occur at an earlier stage, broadly classified as related to conduct and management of litigation. The spectrum of the opinions is a wide one: we are now concerned to narrow it. |
In considering how far a barrister's immunity extends, it is necessary to disentangle three separate strands. |
The second is that of the defences available to barristers. Much if not most of a barrister's work involves exercise of judgment - it is in the realm of art not science. Indeed the solicitor normally goes to counsel precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment, which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is very unlikely to succeed. But this is not an argument for giving him total immunity from proceedings. |
The third is that of immunity from an action, which depends upon public policy. In fixing its boundary, account must be taken of the counter policy that a wrong ought not to be without a remedy. Furthermore, if the principle is invoked that it is against public policy to allow issues previously tried (between the client and his adversary) |
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to be relitigated between client and barrister, it may be relevant to ask why this principle should extend to a case in which by the barrister's (assumed) fault, the case never came to trial at all. These two considerations show that the area of immunity must be cautiously defined. |
"I cannot narrow the protection to what is done in court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated." |
I do not understand this formulation as suggesting an entirely new test, i.e., a double test requiring (a) intimate connection with the conduct of the cause in court and (b) necessity in the interests of the administration of justice. The latter words state the justification for the test but the test lies in the former words. If these words involve a narrowing of the test as compared with the more general words "conduct and management" I think that this is right and for that reason I suggest that the passage, if sensibly, and not pedantically, construed, provides a sound foundation for individual decisions by the courts, whether immunity exists in any given case. I should make three observations. First, I think that the formulation takes proper account, as it should, of the fact that many trials, civil and criminal, take place only after interlocutory or pre-trial proceedings. At these proceedings decisions may often fall to be made of the same nature as decisions at the trial itself: it would be illogical and unfair if they were protected in the one case but not in the other. Secondly, a decision that a barrister's liability extends so far as I have suggested necessarily involves that it does not extend beyond that point. In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply. Thirdly, I would hold that the same immunity attaches to a solicitor acting as an advocate in court as attaches to a barrister. Fourthly, it is necessary to repeat that the rule of immunity is quite distinct from the question what defences may be available to a barrister when he is sued. It by no means follows that if an error takes place outside this immunity area, a liability in negligence arises. |
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My Lords, I think that the narrower test is the correct one, and I do not consider that the acts complained of come within it so as to justify striking out. An oversight, or failure to consider the consequences of not adding Mrs. Sugden as a defendant before the limitation period expired, if such took place, may have been defensible, but in my opinion falls well outside the immunity area. I would allow the appeal. |
"... a barrister was immune from an action for negligence at the suit of a client in respect of his conduct and management of a cause |
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in court and the preliminary work connected therewith such as the drawing of pleadings." |
It was the majority of the members of this House who, in seeking a new rationale that would justify retention of a barrister's immunity from liability for negligence in doing the kind of thing that Mr. Worsley had been charged with doing negligently in a criminal trial, themselves suggested a distinction between what a barrister does in the conduct and management of litigation and his non-litigious work. In respect of the former all five members of this House were of opinion that notwithstanding that a barrister's immunity could no longer be based upon his incapacity to enter into a contract for the provision of his professional services, nevertheless the policy of the law required that the immunity should be maintained on other grounds. In respect of work not directly connected with the conduct of a case in court four members (Lord Pearce dissenting) expressed opinions that he would be liable: but they were not of one mind as to where the dividing line lay between what |
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work attracted immunity from liability for negligence and what work did not. At the one extreme Lord Pearson limited himself to the expression of a doubt as to whether the barrister's immunity extended to "pure paper work," which he explained as drafting and advisory work unconnected with litigation. At the other extreme Lord Morris of Borth-y-Gest appears to have regarded the immunity as confined to the actual conduct of a cause in court. He suggests no extension beyond this. Between these two extremes Lord Reid, in a passage clearly intended to be obiter, expressed the view that the immunity would extend to drawing pleadings or conducting subsequent stages in a case, as it applies to counsel's conduct during the trial; while Lord Upjohn, also obiter, suggested that the immunity of counsel, which he regarded as confined to the conduct of litigation in and out of court should start in a civil case at the moment when the letter before action was sent. |
My Lords, in recognising a barrister's immunity from liability for negligence in the conduct of his professional work of a particular kind this House was granting to the Bar a privileged status which the common law does not accord to members of any other profession or skilled craft. Those who hold themselves out as qualified to practise other professions, although they are not liable for damage caused by what in the event turns out to have been an error of judgment on some matter upon which the opinions of reasonably informed and competent members of the profession might have differed, are nevertheless liable for damage caused by their advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do. |
This exceptional immunity of the barrister and its extension to various kinds of professional work that he does outside the court room can no longer be justified as the automatic corollary of the rule that a barrister cannot contract to render professional services. In my view, it must be justified, if at all, as a matter of policy of the law and by the special characteristics of the kind of work to which the immunity applies that distinguish it from professional work undertaken by members of other professions. |
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The special characteristic of a barrister's work upon which the greatest stress is laid by their Lordships was that he does not owe a duty only to his client; he owes a duty also to the court. This is an overriding duty which he must observe even though to do so in the particular case may appear to be contrary to the interests of his client. Furthermore a barrister has to exercise his judgment as to where the balance lies between these competing duties immediately and without opportunity for calm reflection as the trial inexorably proceeds. His ability to give his best service to the court and to his client, it is said, would be diminished if he were compelled continually to give consideration to the possible effects that the way in which he exercised that judgment might have upon his own liability to his client for negligence. |
To say of a barrister that he owes a duty to the court, or to justice as an abstraction, to act in a particular way in particular circumstances may seem to be no more than a pretentious way of saying that when a barrister is taking part in litigation he must observe the rules; and this is true of all who practise any profession. The rules which may appear |
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to conflict with the interests of the client are simple to state, although their application in borderline cases may call for a degree of sophistry not readily appreciated by the lay client, particularly one who is defendant in a criminal trial. A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister's knowledge. Again, although he must not abuse the privilege which the law accords to him as counsel in rendering him immune from liability for aspersions which he makes against anyone in the course of litigation, however unfounded, irrelevant or malicious they may be, questions of considerable nicety may arise as to what constitutes sufficient foundation or relevance to justify the particular aspersion which his client wants him to make. |
The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered. |
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without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take. |
In the light of the developments of the law of negligence which have taken place since 1967, I could not readily find today in the reasons that I have so far discussed convincing ground for holding that a barrister ought to be completely immune from liability for negligence for what he does in court in conducting criminal or civil proceedings - let alone for anything that he does outside court in advising about litigation whether contemplated or pending or in settling documents for use in litigations. |
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The second reason is also based upon the need to maintain the integrity of public justice. An action for negligence against a barrister for the way in which he has conducted a case in court is founded upon the supposition that his lack of skill or care has resulted in the court having reached a decision that was not merely adverse to his client as to liability or quantum of damages but was wrong in being adverse and in consequence was unjust, for otherwise no damage could be shown to have resulted from the barrister's act or omission of which complaint is made. The client cannot be heard to complain that the barrister's lack of skill or care prevented him from obtaining a wrong decision in his favour from a court of justice. So he must prove that if the action had been conducted competently by his counsel he would have succeeded instead of failed. |
Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but upon principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial upon a contested issue by re-trial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction. Yet a re-trial of any issue decided against a barrister's client in favour of an adverse party in the action in respect of which allegations of negligent conduct by the barrister are made would be an indirect consequence of entertaining such an action. |
The re-trial of the issue in the previous action, if it depended on oral evidence, would have to be undertaken de novo. This would involve calling anew after a lapse of time witnesses who had been called at the previous trial and eliciting their evidence before a different judge by |
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questions in examination and cross-examination that were not the same as those that had been put to them at the previous trial. The circumstances in which the barrister had made decisions as to the way in which he would conduct the previous trial, and the material on which those decisions were based, could not be reproduced in the re-trial; and the initial question in the action for negligence: whether it has been established that the decision adverse to the client reached by the court in the previous trial was wrong, would become hopelessly entangled with the second question: whether it has been established that notwithstanding the differences in the circumstances in which the previous trial was conducted, it was the negligent act or omission of the barrister in the conduct of his client's case that caused the wrong decision by the court and not any other of those differences. |
A similar objection, it may be mentioned, would not apply in cases where an action has been dismissed or judgment entered without a contested hearing, and there is no possibility of restoring the action and proceeding to a trial. If the dismissal or the entry of judgment was a consequence of the negligence of the legal advisers of a party to the action, a claim in negligence against the legal advisers at fault does not involve any allegation that the order of the court which dismissed the action or entered judgment was wrong. |
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"Each piece of before-trial work should ... be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice. ..." |
So for instance in the English system of a divided profession where the practice is for the barrister to advise on evidence at some stage before the trial his protection from liability for negligence in the conduct of the case at trial is not to be circumvented by charging him with negligence in having previously advised the course of conduct at the hearing that was subsequently carried out. |
It would not be wise to attempt a catalogue of before-trial work which would fall within this limited extension of the immunity of an advocate from liability for the way in which he conducts a case in court. |
The work which the barrister in the instant case is charged with having done negligently, viz., in advising as to who was to be a party to an action and settling pleadings in accordance with that advice, was all done out of court. In my view, it manifestly falls outside the limited extension of the immunity which I have just referred to. |
It follows that in my view the third party proceedings ought not to have been struck out upon the grounds stated in the judgments in the Court of Appeal. Whatever other grounds there might have been for doing so have not been relied upon by the respondents. So, the consequence must be that the order of the Court of Appeal should be reversed, and the appeal allowed. |
It should not be thought, however, that I am assenting to the proposition that the facts stated in the claim in the third party proceedings disclose a reasonable cause of action by the solicitors against the |
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barrister. That is a matter that will fall to be decided at the trial - if there is one. |
I would accordingly allow this appeal. |
LORD SALMON. My Lords, this appeal raises a point of law of great public importance, namely - what is the extent of a barrister's immunity (if any) against a claim for damages for negligence in the performance of his professional duties out of court. It is a pity that such an important point falls to be decided in a case such as the present since its facts are somewhat tenuous and unsatisfactory. |
On March 26, 1966, Mr. Saif Ali was travelling as a passenger in a van being driven by his friend Mr. Akram. The van collided with a motor car which belonged to Mr. Sugden and was being driven by his wife; she was taking their children to school. As a result of the accident (a) Mrs. Sugden was prosecuted in October 1966 for driving without due care and attention, and she pleaded guilty to that offence, and (b) Mr. Ali and Mr. Akram suffered serious injuries and were away from work for many months. Mr. Ali had an unanswerable claim for substantial damages, certainly against Mrs. Sugden, probably against Mr. Sugden and possibly against Mr. Akram. |
Soon after the accident, Mr. Ali and Mr. Akram consulted a firm of solicitors. In October 1968 those solicitors laid the facts which I have recited before a barrister and instructed him to settle proceedings and to advise. The barrister promptly settled a writ and a statement of claim making Mr. Ali and Mr. Akram joint plaintiffs and Mr. Sugden the sole defendant. The solicitors issued the writ on November 14, 1968, but did not serve the writ or the statement of claim until August 29, 1969. In the meantime, but well before March 26, 1969 (when the period of limitation expired), the solicitors informed the barrister, amongst other things, that the solicitor acting for Mr. Sugden's insurers apparently in the course of negotiation had stated that Mr. Akram should be joined as a defendant and that the allegation in the statement of claim that Mrs. Sugden had been driving as her husband's agent might be put in issue. The solicitors asked the barrister for his advice. The barrister then advised that there was no foundation for any challenge of the allegation that Mrs. Sugden was driving as her husband's agent; and that accordingly no amendment to the statement of claim would be worthwhile. In accordance with that advice, the statement of claim was not amended by adding either Mrs. Sugden or Mr. Akram as defendants. |
The barrister's advice not to join Mrs. Sugden and Mr. Akram as defendants and his failure to do so is the negligence which is alleged against him in circumstances to which I shall presently refer. |
In November 1969 the barrister advised Mr. Ali that he should be separately represented; and Mr. Ali instructed new solicitors and a new barrister to act for him. |
Mr. Sugden's original defence, served on October 16, 1969, denied that his wife had been driving as his agent at the time of the accident. On June 24, 1971, an amended defence was served, withdrawing the |
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denial and admitting that Mrs. Sugden had been driving as her husband's agent. |
On January 21, 1972, a consent order was made giving leave to Mr. Sugden to re-amend his defence by withdrawing the admission made in the amended defence and reverting to the stance he had taken in the original defence. The re-amended defence was duly served on January 24, 1972. It seems strange to me that Mr. Ali's then solicitors should have consented to the order allowing the amended defence admitting Mrs. Sugden's agency to be re-amended by denying her agency. With her agency admitted, and Mrs. Sugden having pleaded guilty to driving without due care and attention, Mr. Ali must have succeeded in his action against Mr. Sugden. It was particularly important for him that he should do so as it was then years too late for Mrs. Sugden or Mr. Akram to be joined as defendants. |
The present appeal concerns a simple running down action in which Mr. Ali, if properly advised, must have recovered judgment, or settled his claim, for substantial damages against Mr. Sugden, Mrs. Sugden and Mr. Akram or one or more of them. As it is, after inordinate delays, whilst he had left himself in the hands of his lawyers and followed their advice for about eight years, he now finds himself barred in law from taking his case to court against any of the defendants whose negligence caused him damage, and accordingly he is deprived of any of the damages to which he was clearly entitled. |
It would, in my opinion, be a shocking reflection on the common law if, in the melancholy circumstances I have recited, Mr. Ali has no remedy against any of his advisers who are responsible for his present situation. It may be that the solicitors, having accurately instructed counsel about the facts, cannot be held to be negligent for having acted in accordance with counsel's advice. I cannot, however, find any reason or principle or sound authority to justify counsel's immunity from being sued for damages by clients who have suffered loss as a result of counsel's negligent advice. I have no doubt that, for the reasons I shall presently explain, the common law does give Mr. Ali a remedy against his advisers - whether solicitors or counsel - whose advice negligently caused his loss. |
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In September 1974 Mr. Ali brought an action against his original solicitors for damages for negligently advising him that neither Mrs. Sugden nor Mr. Akram ought to be added as defendants, and for negligently failing to make either of them defendants. No claim for damages for negligence was made against the solicitor who consented to the order giving leave to Mr. Sugden to re-amend his defence and who later discontinued the action against Mr. Sugden; nor was any claim made against leading counsel who advised that the action should be discontinued. |
The original solicitors entered a defence denying negligence to the claim against them and issued third party proceedings claiming an indemnity against the barrister who advised them in 1968 mainly on the ground that he had negligently advised that neither Mrs. Sugden nor Mr. Akram should be joined as defendants. Mr. Ali then joined the barrister as a defendant and claimed damages for negligence against him. The barrister applied to have the third party claim against him struck out on the grounds that as a barrister he was immune from the claim in negligence made against him in the third party proceedings. The district registrar struck out the third party claim but Kerr J. restored it. The Court of Appeal allowed the appeal from Kerr J.'s order and ordered that the third party proceedings should be struck out on the ground that the barrister was immune from any such claim. The present appellants now appeal from that decision to your Lordships' House. |
I hope that nothing in this speech will leave an impression that I hold a view, one way or another, as to whether the barrister who advised in 1968 was negligent. I have certainly formed no view on this issue; it is an issue which, if this appeal is allowed and the action is fought, will have to be decided by the judge who hears the evidence. It has, in my opinion, been rightly conceded at the Bar that, as the facts alleged in the third party claim are capable of constituting negligence, the only issue before this House is whether or not the barrister is immune from the claim made against him. |
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I recognise that it is most unpleasant for a barrister to have to fight an allegation that he has been negligent, but such an experience is no more unpleasant for a barrister than it is for a physician or a surgeon, an architect or an accountant. I cannot understand how there can be any justification for the law affording a blanket immunity to a barrister in respect of all work done out of court when it affords none to the members |
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of any other profession; nor do I believe that the Bar would wish to claim such an immunity. |
In the present case, the question for decision is - on what side of the line does the advice fall which was given by the barrister against whom the third party proceedings have been brought? |
There are several excellent reasons to which I have already referred and each of which is cogently set out by this House in Rondel v. Worsley |
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The other theories supporting a barrister's supposed blanket immunity from liability for negligence in respect of any paper work cannot survive in the realistic atmosphere of the late 20th century. These were based on the fact that (a) a barrister cannot sue his client for his fees and (b) he is obliged to accept briefs relating to a field of law in which he normally practises, providing he is offered a proper fee. |
Although a barrister cannot sue for his fees, he can demand that his fees be paid before he appears in court. If the barrister does not demand his fees in advance and the lay client does not pay them after the barrister's services have been rendered, the solicitor can sue the lay client for the barrister's fees. It is true that if the solicitor recovers the fees from the lay client and does not pay them over to the barrister, the barrister cannot sue the solicitor; but he can report him to the Law Society, and this as every lawyer knows would be likely to cost the solicitor far more than the fees he retains. There is no reason to suppose that the Bar incurs more bad debts than any other profession. |
The rule that a barrister must accept a brief in the circumstances which I have described was made to ensure that every accused person or litigant could be represented in court by counsel. I do not, however, know of any firm rule which obliges counsel to accept instructions to advise or to draft pleadings. |
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Unless what seems to me to be an untenable proposition is accepted, namely that public policy always requires that a barrister should be immune from liability for his neglect or incompetence in respect of all paper work, he is rightly in no better position than any other professional man who is sued for negligence. The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his avocation undertakes to advise or to settle a document, he owes a duty to advise or settle the document with reasonable competence and care. This duty is owed to anyone he should foresee may suffer loss if the duty is breached. |
If in breach of that duty, he fails to exercise reasonable competence or care and as a result the person to whom the duty was owed suffers damage he is liable to compensate that person for the damage he has suffered. The law requires the damage to be borne by the person whose breach of duty has caused it, rather than by the innocent person who has suffered it. |
I am far from saying that if the advice or document turns out to be wrong, it necessarily follows that he who gave or drew it is liable for the loss caused by its imperfection. The barrister is under no duty to be right; he is only under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balanced problems. Diametrically opposite views may and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent. In my opinion, however, it can only be in the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court; and this case is certainly not amongst them. |
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"... the protection exists only where the particular [paper] work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing." |
My Lords, for the reasons I have stated I would allow the appeal. |
LORD RUSSELL OF KILLOWEN. My Lords, in arriving at a conclusion in this appeal I have striven, I hope successfully, to avoid being influenced by the fact that I find it difficult to see where the barrister erred in selecting as defendant the owner of the car, whose wife was driving it (negligently) for the purpose of taking their children to school. However unsatisfactory it may be, we are obliged to assume for the purposes of this appeal that the barrister was negligent in the respects summarised by my noble and learned friend on the Woolsack. Should, on that |
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assumption, the third party notice be struck out as disclosing no cause of action against the barrister recognised by the law? |
The history relating to claims for negligence by professional people, and barristers in particular, has been very fully canvassed in your Lordships' speeches, as has also the tendency of recent years for decisions of the courts to stress responsibility in all fields of those guilty of errors of commission or omission towards others to whom harm has been caused by such errors. |
It is to be observed that nowhere, so far as I am aware, has it been suggested that a barrister in respect of his conduct of a case in court should have a special immunity from suit for negligence because what he does in court is (so to speak) in the heat of battle, when he must make a decision in the obscurity of dust and smoke. Nor do I consider that such immunity is rightly connected with a quite different (as it seems to me) immunity of judges, witnesses, and jurors. |
What then is the justification for immunity from claims for negligence that has so far been established? It lies in my opinion in the public duty that rests upon the Bar in particular to participate in and contribute to the orderly proper and expeditious trial of causes in our courts. In the exercise of such a duty it appears to me that it is highly undesirable and against public policy that a barrister in deciding in court upon a particular course of action, or attitude, should be in a position of having to wonder whether a different course of action, or attitude, would not be more likely to avoid a claimthat he was negligent. I take a simple illustration. It is desirable in a civil case to prove a fact. Five people say that they can testify to it. Counsel decides to call two, saving the time of the court. Those two turn out to be not good witnesses, or are not in the end accepted to be such by the judge. Is the barrister to be subjected to a claim in negligence by his disappointed client for his attempt to facilitate the administration of justice? I consistently stress the word claim. He may or may not have been negligent in not calling the other three witnesses. It is his vulnerability to a claim that may interfere with his duty. |
The example which I have given is of something done (or rather not done) in the course of the trial of a civil action inside the court. I cannot accept that there is a universally acceptable distinction between what is done (or omitted) in the court in the presence of the judge and what is done (or omitted) outside court or before trial. Preliminary hearings before a master may be regarded as upon the same basis as the trial. But what of actions (or omissions) of counsel in the course of steps taken upon which the trial (if any) is to be based? I do not accept the suggestion that the calm atmosphere of chambers in the Temple (or even Lincoln's Inn) marks a distinction: I have already remarked that the heat, dust and smoke of the battle has never been urged as a special ground of immunity from suit for negligence. In my opinion if a decision by counsel is arrived at - albeit negligently - before trial which might well |
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have been arrived at at trial, or before a master, it should not be open to a claim for negligence. In particular, as here, a decision as to the proper party to be joined as defendant. |
I find myself in agreement with the views expressed in his speech (which I have had the advantage of seeing in draft) of my noble and learned friend Lord Keith of Kinkel and, finding myself in concurrence with them, I would dismiss this appeal. |
LORD KEITH OF KINKEL. My Lords, the facts of this case and the circumstances under which it comes before your Lordships' House have been narrated in the speech of my noble and learned friend Lord Wilberforce, whose account I gratefully adopt. |
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immunity from suits for negligence in connection with all aspects of his work, and what they said about those activities which are carried on elsewhere than in the actual court-room in the course of a trial was carefully considered. Accordingly the views so expressed should not, in my opinion, lightly be departed from. |
In the present appeal it was not argued that no aspect of a barrister's work attracted immunity, but it was contended that the immunity was strictly limited to work done actually in court in the conduct of a cause. |
I am therefore of opinion that the grounds of this aspect of public interest extend beyond the actual conduct of a case ;n court and are applicable to all stages of a barrister's work in connection with litigation, whether pending or only in contemplation. |
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rest upon principle, and it is not critical that the relevant factors of public interest may apply less strongly upon the facts to certain cases in the category covered by the principle than they do to others. |
"But I cannot narrow the protection to what is done in court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated." |
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the maintenance of a rule which is relatively simple and easy to apply. That immunity extends to all of a barrister's work in connection with litigation is such a rule. The suggested restriction of the immunity would presumably exclude from its scope all cases relating to contemplated litigation which did not actually reach the stage of a hearing in court, and all litigation settled, compromised or abandoned. In other cases the suggested restriction would, in my opinion, prove difficult to apply in practice and would almost inevitably require inquiry into the facts. It would seldom, if ever, be possible to decide the issue of immunity upon an application for striking out. So the objective of relieving the barrister of any apprehension of contentious litigation regarding the conduct of his cases would not be achieved. |
In the present case the negligence alleged against the third party took place in connection with his conduct of litigation. I am of opinion that the immunity therefore applies to it. |
My Lords, for these reasons I would dismiss the appeal. |
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Solicitors: The Law Society; Hewitt, Woollacott & Chown. |
J. A. G. |