The Gazette 1971

and his liability can, therefore, only arise as a Hedley Byrne v Heller liability. The basis of an action by a client against his soli- citor is breach by the solicitor of the duty of care in performing the obligations arising from his accep- tance of the client's instructions, that is to say, in contract for failure to exercise reasonable care and skill. The standard by which a solicitor's performance of his duty to his client is judged according to the standard of reasonable care and skill in carrying out the work undertaken. In Rondel v Worsley 6 the House of Lords approved of a passage in the judg- ment of Tindal C.J. in Lanphier v Phipos : 7 Every person who enters into a learned profession undertakes to bring to the exercise of it a reason- able degree of care and skill. He does not under- take if he is an attorney, that at all events you shall gain your case. . . . There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reason- able and competent degree of skill . . . Standard of care and skill The standard of reasonable care and skill is to be measured by that of other skilled practitioners in the same field, though a Court might hold a particular and widely adopted practice to be unsafe and negli- gent. A solicitor holding himself out as a specialist may well be expected that greater degree of skill and care in his own chosen field in consequence. The onus of proof of negligent performance of the contractual obligations is, as is normal, cast upon the client who brings the claim. The plaintiff to succeed must establish the facts relevant to his claim on balance of probability and not on mere possibility. This being so, where the evidence of professional opinion on the point at issue were to be equally divided, it is anticipated that the client would fail to recover. Where the solicitor acts as advocate in the lower Courts in which he has a right of audience, it seems that he is not liable to be sued for negligence. When barrister liable for negligence The position of the English barrister is clearly stated by Mr. G. A. Rink, Q.C., National Correspondent for the English Bar on this topic, as follows : (1) It has for centuries been considered, and it has recently been decided bv the highest authority (the House of Lords), that a barrister cannot be sued for negligence in connection with the conduct of litiga- tion (Rondel v Worsley). It is still an open question whether a barrister can be sued successfully for negli- gence in any matter not concerned with proceedings in Court, but on the whole it seems probable that he would be liable for such negligence. (For convenience, work not connected with proceedings in Court is referred to below as "pure paper work".) (2) If the action lies, it lies in tort—for breach of the duty to show reasonable skill and care (cf. Hedley Byrne v Heller). (3) (a) The standard is the skill and care which would have been exercised by a barrister of reason- able competence in the field in which the barrister concerned practises, (b) If necessary, evidence would be given as to the views, and the normal course of practice, of barristers in the relevant field. If a sub- stantial body (not necessarily as many as half) of

them adopted a particular course of practice, a barrister would be most unlikely to be regarded as negligent if he followed it. (4) A barrister is not liable for negligence in the conduct of Court proceedings. His immunity is based on public policy and long usage in that: (a) The administration of justice requires that a barrister should be able to carry out his duty to the Court independently and without fear of being sued if he does so contrary to the interests of his own client. (b) Actions for negligence against barristers would make the re-trial of the original action inevitable (there does not appear to be any other class of negli- gence in which a re-trial of previously decided issues would normally be involved). (c) A barrister is in general obliged to accept any client, however unreasonable or cantankerous or likely to sue him if dissatisfied. (d) The barrister's immunity in connection with Court proceedings is part of the general policy for immunity for judges, counsel and witnesses. There are no exceptions to the rule that a barrister cannot be sued for negligence in the conduct of Court proceedings. The position in Ireland There is little doubt that similar considerations apply in most other places where the profession is divided. The national correspondents for Scotland and Ireland both refer to Rondel v Worsley as binding and perhaps final authority, although it is stated by Mr. J. McMahon, SC., on behalf of the General Council of the Bar of Ireland, that the question whether a barrister should be liable in negligence to his client has been referred to a Government Committee on Court Practice and Proce- dure. The view is expressed, however, that if the tradi- tional immunity of barristers from all actions for negli- gence is restricted, public policy will still bar an action by a client against a barrister for negligence in the conduct of Court proceedings. "Traditional immunity" of the barrister from all actions for professional negligence is hardly likely to continue since the decision in Hedley Byrne v Heller. It would be interesting to hear what arguments might be advanced against the proposition that a barrister owes a duty of care to his client. None of the reasons which have been given to support the doctrine of immunity applies to the barrister's work outside the conduct of Court Proceedings. Taken separately, none of them would appear to justify a right to immunity in respect of everything a barrister does in the conduct of Court proceedings. However, in any place where Rondel v Worsley is accepted as binding authority, the immunity will remain. Sir Owen Dixon, former Chief Justice of the High Court of Australia, in a lecture on Professional Conduct 8 said : To be a good lawyer is difficult—to master the law is impossible. But I should have thought the first rule of conduct for counsel, the first and paramount ethical rule, was to do his best to acquire such a knowledge of the law that he really knows what he is doing when he stands between his client and the court, or advises for or against entering the temple of justice. In similar vein Abbot C.J. 9 said: No attorney is bound to know all the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law; or that an attorney is to lose his recompense on

72