The Gazette 1973

Court Practice Report on Liability of Barristers and Solicitors Fourteenth Interim Report

concerned only with particular complaints by litigants against their legal advisers. Present position 5. The present legal position as to the liability of a barrister for professional negligence seems to be that he is immune from action for negligence in advocacy in court. With regard to advising and preliminary work in connection with litigation the position is doubtful but the better opinion seems to be that he cannot be made liable. In non-litigious work the position is also doubtful but since the decision in Rondel v. Worsley (see paragraph 7 infra) the better opinion seems to be that he is liable. 6. The situation with regard to a solicitor is that he is liable in respect of non-litigious work, while his position in litigaton work is doubtful. However, in respect of advocacy in court at all events he is probably immune from action for negligence. 7. The question of the barrister's liability for pro- fessional negligence was considered recently in England in the House of Lords in Rondel v. Worsley [1967] 3 All E.R. 993, [1969] 1 A.C. 191. In that case the House of Lords confirmed the view taken by the English Court of Appeal and by the trial judge that, in relation to court work in any event, the barrister enjoys a legal immunity for claims for damages for professional negligence. The opinions in that case, how- ever, introduced a new element of uncertainty into the position, leading as they do to the conclusion that the immunity enjoyed by the barrister in England is not a comprehensive one and may not exist in relation to other branches of his work, for example, in relation to advisory work and conveyancing. Obiter dicta in that case in regard to different aspects of liability for pro- fessional negligence on the part of barristers and soliti- tors as mentioned in paragraphs 10 and 11 hereof. 8. In Ireland, the most recently reported judgment concerning the liability of a solicitor for professional negligence is that of the High Court in McGrath v. Kiely & Anor. [1965] I.R. 497. In that case the solicitor in question was held liable in negligence by reason of his failure to communicate information to counsel concerning the full extent of the plaintiff's injuries, as a result of which she was awarded less damages than she would otherwise have got in an action for damages for personal injuries. The judgment in that case states that the contract between a solicitor and his client pursuing a claim for damages for personal injuries requires the solicitor to prepare and prosecute the claim with due professional skill and care. 9. There is no instance of a reported case, since the establishment of the State, in which a barrister was sued for professional negligence or in which a solicitor was sued for professional negligence while acting as an advocate in court. 63

LIABILITY OF BARRI STERS AND SOL ICITORS FOR PROFESSIONAL NEGLIGENCE To : Desmond O'Malley, Esq., T.D., Minister for Justice Introduction 1. The Committee on Court Practice and Procedure were appointed by the Minister for Justice on 13 April 1962 with the following terms of reference : (a) to inquire into the operation of the courts and to consider whether the cost of litigation could be reduced and the convenience of the public and the efficient despatch of civil and criminal business more effectively secured by amending the law in relation to the jurisdiction of the various courts and by making changes, by legislation or otherwise, in practice and procedure; (b) to consider whether, and if so to what extent, the existing right to jury trial in civil actions should be abolished or modified; (c) to make interim reports on any matter or matters arising out of the Committee's terms of reference as may from time to time appear to the Committee to merit immediate attention or to warrant separate treatment. 2. The Committee were requested by your prede- cessor, Mr. Brian Lenihan, T.D., to examine the ques- tions of the liability (a) of a barrister for professional negligence and (b) of a solicitor for professional negli- gence while acting as an advocate. These topics form the subject-matter of this our Fourteenth Interim Report. 3. The Committee sought views on these topics from the following bodies : (1) The General Council of the Bar of Ireland, (2) The Benchers of the Honourable Society of King's Inns, (3) The Incorporated Law Society of Ireland, (4) The Young Barristers' Society, (5) The Society of Young Solicitors, (6) The Dublin Solicitors' Bar Association, (7) The Southern Law Association, (8) The Irish Association of Civil Liberty, (9) The Law Schools of Trinity College, Dublin, University College, Dublin, University College, Cork and Un'versity College, Galway. Views were furnished to the Committee by all of these bodies save the Benchers of the Honourable Society of King's Inns and the Law Schools of Trinity College, Dublin, University College, Cork, and Univer- sity College, Galway. 4. The Committee also, by notice published in the daily press, invited members of the public to submit views on these topics. The general public, however, has shown very little interest in the matter. The newspaper notices evoked only ten replies and nine of these were