The Gazette 1967/71

Wilkinson v. Coverdale to Hedley Byrne is based on a capacity to contract for there must be some thing akin to contract to involve liability for a gratuitous act; a voluntary assumption of liability is equivalent to a contract. ... I cannot accept this view. It seems to me clear that pnma jade counsel falls within the general principle. Therefore, the immunity of the barrister, if it exists at all, must depend on some other ground than his status, his inability to sue or his in capability to contract. I think that public policy necessitates that, at all events in matters pertain ing to litigation, a barrister should have this im munity, and basically it depends upon two fac tors. First, a barrister is in a unique position, even different from a physician, for he is bound to undertake litigation on behalf of a client provided that it is in the usual way of his professional prac tice and that he is properly instructed or, to put it more bluntly, properly paid according to his stand ing at the Bar. . . . The second and more impor tant consideration is that the barrister is engaged in the conduct of litigation whether civil or crimi nal before the courts . . . while counsel owes a primary duty to his client to protect him and advance his cause in every way, yet he has a duty to the other court which in certain cases trans cends that primary duty. Lord Upjohn It has been suggested that the reasoning of the Court of Appeal, especially Lord Lindley, in the case of In re Le Brasseur and Oakley was defec tive, in that it was being said that because a barris ter could not sue for his fees, therefore he must be immune from any liability for negligence. But I think that this criticism is based on a misunder standing of the reasoning, which was entirely sound. The reasoning was that the relation be tween the barrister and the client (acting through his solicitor) is noncontractual and does not create legal rights or obligations on either side. The doctrine is logical and consistent and sup ported by adequate reasons of public policy, and it has remained unchallenged for more than a hundred years until it was challenged in the present case. There remains the question whether the relevant requirements of public policy may have changed in the meantime. I think a negative answer should be given. Lord Pearson Barristers: Opinions and Paper Work The main reasons on which I have based my opinion relate to the position of counsel while en gaged in litigation, when his public duty and his

duty to his client may conflict. But there are many kinds of work undertaken by counsel where no such conflict would emerge, and there I see little reason why the liability of counsel should be different from that of members of any other pro fession who give their professional advice and services to their clients. Lord Reid The law has not differentiated between the liability of a barrister in litigation and in his other non-litigious work as a barrister . . . And it is also clear that the various rulings with regard to the immunity of a barrister from liability for negli gence were intended to cover all his work as a barrister. In my opinion, therefore, under the law as it now stands and has stood for some two hun dred years, and perhaps considerably more, a bar rister cannot be sued for negligence in respect of his work as a barrister. Lord Pearce As a practical matter, I do no more than sug gest that the immunity of counsel in relation to litigation should start at that letter before action where, if my recollection is correct, taxation of party and party costs starts. What, then, of the immunity of counsel before that stage or when acting in matters which could not possibly be des cribed as pertaining to litigation but rather as pure paper-work? ... I think this is a most difficult matter; I find it very difficult to see upon what principle the immunity which all of your Lordships are agreed must, as a matter of public policy, be granted to counsel while acting in liti gious matters should extend to matters which are not litigious. ... I cannot myself see that the case of Hedley Byrne has made the slightest difference to the liability of counsel if it exists in this respect. If there is, as I think, any liability upon counsel in respect of non-litigious matters, that was inferentially pointed out in the case of Nocton v. Ashburton as long ago as 1914. That then caused no excitement amongst counsel (so far as is now known) and for my part I am quite unable to understand why Hedley Byrne when properly understood should cause all the excite ment, which of course it has done, within the pro fession today. Lord Upjohn Does the barrister's immunity extend to "pure paper work", that is to say, drafting and advisory work unconnected with litigation? The authorities to which I have referred do not show it. It seems to me that ... it is at least doubtful whether bar risters have any immunity from liability for negli- 79