The Gazette 1973

pany Limited v. Greenock Port and Harbour Trustees [1921] 65 Sol. Jo. 511 per Lord Birkenhead at page 552) or in any matter of normal procedure or not involving special difficulty. Therefore, in all matters of normal procedure not involving special difficulty or where the law is reasonably straightforward, the lay client is protected against negligence by his possible right of action against the solicitor. Even on a difficult or doubtful point of law, if a solicitor takes it upon himself to advise a client, he may be guilty of negli- gence if he failed to warn the client that the matter was not free from doubt and that counsel's opinion should be taken ( Richards v. Cox [1942] 2 All E.R. 624). 17. It appears that a similar situation arises in connection with advising and preliminary work in the litigation field. The judgment of the High Court (Mr Justice Henchy) in Millard & Another v. McMahon (delivered 15 January 1968—unreported) notes that '(it is well settled that where a solicitor lays his client's claim before competent counsel and acts on counsel's advice, he is not liable for negligence". 18. The solicitor's liability for professional negligence is partly based on the contractual tie between himself and his client. The barrister, on the other hand, has no contractual relationship with the client and is not there- fore entitled to sue the client for his fees. However, the barrister's immunity in respect of advocacy work is not founded on the absence of a contractual relation- ship but, according to the opinions in Rondel v. Worsley, on considerations of public policy. Views submitted to the Committee (a) Advocacy Work 19. The view has been submitted to us that the interest of the public would best be served by preserving the immunity which has hitherto been enjoyed by barristers against any action for negligence arising out of their conduct of cases in court. 20. The immunity of the Bar in regard to advocacy work may amount to a diminution, however slight, of the citizen's right of recourse to the courts but, never- theless, it is argued that on balance the citizen's rights are best served by a fearless and independent barristers' profession whose members can conduct cases «free from the fear of retribution by an ex-client who, having lost his case, decides to sue his counsel. 21. In relation to the work of advocacy carried out in court either by a barrister or a solicitor, the view is urged that it would be undesirable from the public point of view and unfair to the practitioner to expose him to the danger of an action for negligence in respect of any alleged error of judgment committed by him in the conduct of a case. The work of the advocate in court in this respect differs completely from that under- taken by other professional men. This is particularly true under the adversary system of trial of actions. Each case involves a contest between the advocate and his opponent and calls for a very difficult assessment of the tactical approach to each case which may have to be varied from time to time throughout the hearing of the case. New and unexpected developments are always liable to arise in the course of a hearing. The advocate is faced with the necessity of making split-second decisions, often while he is on his feet and addressing the court or questioning a witness. It would add im- measurably to the difficulty of his work if he had to operate under the constant threat of an action for damages by an unsuccessful litigant, and this, in turn, 65

case as is usually and ordinarily adopted in his branch of the profession; (e) he is liable for failure to institute or prosecute proceedings with due diligence and for failing to instruct counsel adequately, and (f ) a solicitor is liable if he does not explain to his client the nature, substance and effect of a docu- ment which he is permitting a client to execute. 14. The memorandum points out that a solicitor not only incurs the full liability for negligence of all other professions, but in the following respects he is in a less favourable position than any other profession : (a) Section 7 of the Attorneys' and Solicitors' Act, 1870, provides that a provision in an agreement between a solicitor and his client respecting the amount and manner of payment of his remun- eration relieving the solicitor from liability for negligence is wholly void. (b) In an agreement as to remuneration for con- tentious business a provision excluding the lia- bility of the solicitor for negligence is void— per Tindal C. J. in Lamphier v. Phipos [1838] 8 C. & P. 475. (c) A solicitor's bill of costs is subject to taxation. The Taxing Master has access to the solicitor's entire file and not only ensures that no item is overcharged but that the solicitor will not be remunerated for work deemed to be unnecessary or resulting from neglect on the solicitor's part. (d) A solicitor is an officer of the court, and in any matter coming before the court in which he is professionally interested he may be penalised either in costs or in compensation to his client if the court forms the opinion he was negligent or remiss. Because the provisions of section 3 of the Solicitors Act, 1954, and section 61 of the Courts (Supplemental Provisions) Act, 1961 (which repealed and reenacted in similar terms section 93 of the Courts of Justice Act, 1924) may have altered the previous position that solicitors were officers of the court or were, to be deemed to be such, as they were under section 78 of the Supreme Court of Judicature Act (Ireland), 1877 (and as they now are in England under section 50 of the Solicitors Act, 1957), the Committee do not feel it is necessary to express a final view on the question of whether solicitors are now officers of the court. 15. The Law Society's memorandum also draws atten- tion to the position in regard to complicated non- litigious matters in regard to which it seems that a solicitor who obtains and acts on counsel's advice is immune from action for professional negligence, pro- vided that the following conditions are complied with : (a) the solicitor must have had reasonable grounds for belief that the barrister whom he instructed was competent in the class of case on which the barrister was asked to advise; (b) all the relevant facts of the case must have been fully and accurately presented to the barrister; (c) the solicitor must have no reasonable grounds for believing that the advice which he receives is mistaken or erroneous; and (d) the solicitor bona fide acts on the advice received and has not been prohibited by his client from doing so. (16) The memorandum points out that counsel's advice is no protection to a solicitor where the solicitor in the particular circumstances of the case ought to have the knowledge himself ( Glebe Sugar Refining Com-