The Gazette 1967/71

gence in doing "pure paper work" in the sense which I have indicated. Lord Pearson The Position of Solicitors If it is in the public interest to protect counsel, what good reason is there for withholding similar protection from solicitors? . . . There are differen ces between the position of barristers and solici tors. But the case for immunity of counsel appears to me to be so strong that I would find it difficult to regard those differences as sufficient to justify a different rule for solicitors . . . my present view is that the public interest does require that a soli citor should not be liable to be sued for negli gence in carrying out work in litigation which would have been carried out by counsel if counsel had been engaged. Lord Reid The position with regard to a solicitor is different. No doubt when the law was evolved in regard to his responsibility the . . . solicitor's main function was not litigation. And when he was en gaged in litigation he was primarily concerned (under contract) in employing and instructing counsel, carrying out his advice and organising the case behind the lines. ... In respect of these func tions it was assumed and held that he was liable in negligence on his contract. In my opinion, on the reasoning of that case [Munster v. Lamb (1883) 11 Q.B.D. 588] ... a solicitor, while performing counsel's function in a court of law, would be entitled in spite of his con tract to the same immunity from suits for negli gence. Lord Pearce I see no reason why a solicitor acting as an advocate should not claim the same immunity as can counsel, in my opinion, for acts of negligence in his conduct of the case. But this principle, I have no doubt, must be rigorously contained for it is only while performing the acts which counsel would have performed had he been employed that the solicitor can claim that imnunity. Thus, for example, if he so fails properly to instruct himself he cannot claim any immunity . . . So, too, a solicitor who is going to act as the advocate cannot claim immunity if he fails to appear at the right time on the duly appointed day for the hearing of the case, for, in contrast to the barrister who is incapable of contracting with his client, and for the reasons I have given is in any event immune, the solicitor is in breach of contract. ... So I think the general result is likely to be that a solici tor acting as advocate will only be immune from

the consequences of his negligence while he is actually acting as an advocate in court on behalf of his client or settling the pleadings. Thus he would be immune if, having secured the atten dance of witnesses, he negligently fails to call one of them. Lord Upjohn Does a solicitor advocate have the same im munity as a barrister advocate from liability for negligence? Logically it seems right that he should, because the same reasons of public policy seem equally applicable to both of them. There are, however, some difficulties. The principle of a bar rister's incapacity to contract is not readily (if at all) applicable to a solicitor. ... If public policy requires that a solicitor must have immunity from legal liabiliy in respect of his advocacy work, what is to be the contractual position? Lord Pearson The foregoing article appeared in The New Law Journal (Nov. 30, 1967) to whom we are indebted for republication. The Society are subscribers to the Journal. INDEX OF STATUTORY INSTRUMENTS Published since September 1967 Note—It has been decided to discontinue the list of Labour Court Recommendations, but members requiring to consult them, may do so in the library. AGRICULTURE, LAND AND FISHERIES Subject Matter and Reference Numbers Diseases of Animals—Movement of cattle, sheep or pigs prohibited from any Livestock Mart or for export without a licence after 13th December 1967—283/1967. Foot and Mouth Disease. Importation of animals from Great Britain and the Con tinent prohibited after 15th November 1967—235/ 1967. Importation of cattle, sheep and pigs from Northern Ireland prohibited after 13th December 1967 save under licence—282/1967. Entry of unauthorised persons prohibited at ports or harbours in the State from Great Britain up to 31st December 1967—264/1967. Entry of unauthorised persons prohibited beyond 31st December 1967 from ships—298/1967. Entry of persons into the State restricted to specified places after 17th December 1967—287/1967. Cattle may not be presented for sale or exhibition at fairs save under licence, or if at a licensed Livestock Mart or at Dublin Cattle Market—263/1967. Existing restrictions on presentation of cattle at sales and fares for sale or exhibition at fairs extended beyond 31st December 1967—296/1967. _ Sheep and pigs prohibited from being presented for sale or exhibition at fairs save under licence unless at a licensed livestock mart, or at Dublin Cattle Market— 295/1967. 80