The Gazette 1967/71

PROFESSIONAL NEGLIGENCE RONDEL V. WORSLEY On the ground that a question of law of impor tance was involved, namely, whether an action for negligence could lie against a barrister, the appel lant in Rondel v. Worsley was given leave to ap peal to the House of Lords. That appeal was heard on November 22. In addition to that question, the House considered whether a barrister would be liable for negligence in respect of work othen than work in court and whether ak solicitor was entitled to immunity from suit when appearing as an advocate. Extracts from the opinions of their Lordships on those questions are given below— necessarily brief extracts, since the opinions run over 40 closely printed pages. Barristers: Conduct of Cases in Court It is, I think, clear that the existing rule was based on considerations of public policy. But public policy is not immutable and doubts appear to have arisen in many quarters, whether that rule is justifiable in present day conditions in this country. Is it in the public interest that barristers and advocates should be protected against such actions? Like so many questions which raise the public interest, a decision one way will cause hard ships to individuals while a decision the other way will involve disadvantage to the public interest. . . . Immunity from action by the client is not the only way in which it has been thought proper to protect counsel. It has long been established that judge, witnesses and barristers alike have absolute privilege with regard to what is said by them in Court. ... It would, in my view, be incongruous if counsel were immune from action by any one other than his client in respect of his conduct in Court even where that conduct arose from malice, but yet liable to be sued by his client for negli gence. The rule preventing counsel from suing for fees may still have fiscal and other consequences, but I do not think that it is now relevant when con sidering whether it should be possible to sue counsel for professional negligence. Lord Reid The quality of an advocate's work would suffer if, when deciding as a matter of discretion how best to conduct a case, he was made to feel that divergence from any expressed wish of the client might become the basis for a future suggestion that the success of the cause had thereby been

frustrated. It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the Court to his duty to the client. It must be recognised that there must, in the past, have been instances where a lack of due care and skill has resulted in the loss f a case. Such instances may unhappily occur in the future. It becomes, therefore, a matter of balanc ing the public advantages and the public dis advantages which are the result of an immunity of the advocate from a suit alleging negligence in the conduct and management of a court case. In my view, the public advantages outweigh the dis advantages. Lord Morris of Borth-y-Gest It is argued that this immunity sprang from the fact that barristers for reasons of status cannot sue for fees : and that, since the case of Hedlcy Byrnc has held that work may impose a liability for negligence even though a defendant had no con tract with, and received no remuneration from, the plaintiff, the immunity no longer holds good. But the hypothesis that the immunity stems from the inability to sue for fees is unsound. To what extent have the opinions in Hedley Byrnc affected the position? Those opinions were dealing in the main with situations in the nature of contract where but for the absence of con sideration there would be a contract (see especially the opinion of Lord Devlin). But to say that they are confined to such situations would be to take too narrow a view. The special circumstances, however, in which the law will infer an assump tion of liability are those in which such an inference is a fair reading of the relationship in which the parties stand. On the facts in Hedley Byrne's case the existence of a disclaimer of liability by the defendant bank was held to pre clude the establishment of such a relationship. In the present case also it is clear from the circum stances that there was no such assumption of liability. Lord Pearce Prima jade counsel undertaking his client's case is within the general rule that he will be liable for negligence. I have, I hope, said enough to show his immunity (if it exists) from this general rule cannot depend on his status or his inability to sue (where he is in para materia with a physician). In •his incapacity to contract, he is to be distinguished from a physician and upon this, as I have already mentioned, the respondent founds an argument. It comes to this, that if counsel is incapable of contracting he cannot expressly or impliedly con tract. It is said that the general rule from 78