The Gazette 1973

10. In Rondel v. Worsley an accused person who was arraigned at the Old Bailey obtained the services of counsel to defend him on a dock brief. The accused was convicted. Some years later he brought proceedings against his counsel for damages for professional negli- gence. His claim failed, the House of Lords (Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Upjohn and Lord Pearson) holding that an action did not lie at the suit of the accused against his counsel for negligence (if there were any negligence) in the conduct of the accused's defence. The law as laid down in this case is that the immunity of counsel from being sued for professional negligence in the conduct of litigation, criminal or civil, is based on public policy and not on his contractual incapacity to sue for fees. It held that it is in the public interest that this im- munity appears from obiter dicta in the case. Accord- ing to Lord Reid, Lord Upjohn and Lord Pearson this immunity extends to work done in the conduct of litigation, criminal or civil, at the trial, to work where litigation is pending (per Lord Upjohn from the time of the letter before action), to drawing pleadings and to conducting subsequent stages; but (Lord Pearce dissenting) it does not extend to other advisory work or work in drafting or revising documents. Two extracts from the opinions given on these matters read : 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 incapability to contract. I think that public policy necessitates that, at all events in matters pertaining to litigation, a barrister should have this immunity, and basi- cally it depends upon two factors. First, a barrister is in a unique potition, 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 practice and that he is properly instructed or, to put it more bluntly, properly paid according to his standing at the Bar. . . . The second and more important considera- tion is that the barrister is engaged in the conduct of litigation whether civil or criminal 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 court which in certain cases transcends that primary duty. (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 above do not show it .. It seems to me that . . . it is at least doubtful wether barristers have any immunity from lia- bility for negligence in doing,/Ifíure paper work" in the sense which I have indicated. (Lord Pearson) 11. The solicitor's position is also considered in other obiter dicta in this case. According to Lord Reid and Lord Pearce, Lord Upjohn concurring (cf. per Lord Morris of Borth-y-Gest and Lord Pearson)—a solicitor should not be liable to be sued for negligence in carry- ing out work in litigation which, if counsel had been engaged, would have been carried out by counsel; but (per Lord Upjohn) the general result of such im- munity, having regard to the different position of a solicitor, is likely to be that he will have immunity only while actually acting as advocate on behalf of his client

or when settling pleadings. An extract from Lord Upjohn's opinion reads : 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 immunity. 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 solicitor 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) 12. The position then appears to be that the barrister is immune from actions for damages for professional negligence while acting as an advocate in court. The position with regard to that part of litigation consist- ing of advising and preliminary work is in doubt. With regard to non-litigious work such as conveyancing the generally accepted view since the decision in Rondel v. Worsley is that there is liability for negligence in this area. On the other hand the solicitor's position is that he is liable to be sued for damages for professional negligence in the performance or non-performance of the work he is engaged to do by his client with the possible exception that he may be immune from action in regard to his conduct as an advocate in court. 13. In a memorandum submitted to this Committee by the Incorporated Law Society of Ireland it was suggested, in regard to the extent of the solicitor's present liability, that: (a) a solicitor is liable for damages to a client result- ing from his neglect to exercise the standards of skill and care to be expected from a reasonably competent solicitor; (b) he must be acquainted with all the ordinary statutes in everyday use which it would be accepted as his normal duty to know andi. also with all points of ordinary law and all matters of procedure; (c) while he would not be liable for a mistake as to the construction of a doubtful statute which was difficult to interpret, he would be liable if he should have realised that there were difficulties of interpretation and failed so to advise his client;

(d) he would be liable for the consequences of ignorance or non-observance of the rules of prac- tice of court and for>.the want of care in the preparation of a case for trial and for the mis- management of so J much of the conduct of a

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