The Gazette 1973

would be preferable to have the law in this matter made certain by statutory provision conferring on solici- tors and barristers the same immunity in regard to advocacy work. (b) Advising and Preliminary Documents for Court 28. It was submitted to the Committee that the considerations which are relevant in concluding that an advocate should not be liable for his conduct of a case in court should apply also to settling the pleadings, the advice on proofs and other preliminary documents for court. It was however conceded that if a solicitor takes it upon himself to settle these documents in an action in which he will not be appearing as advocate, and is negligent in doing so, and thereby causes loss to his client, it would not seem unreasonable that he should be liable, unless the client requires the solicitor to do so in order to avoid the expense of counsel's fee or otherwise. The person handling the case in court should be the final arbiter of the issues to be raised and of the most satisfactory way of proving them. It has also been suggested to the Committee that a solicitor should have immunity for preparatory work in litigation (i.e. that which an advocate would normally do) where such work is done by a solicitor who also does the work of advocate. 29. It was urged on the Committee that immunity from action for negligence on the part of counsel in respect of the preliminary documents, including the advice on proofs, was essential in the public interest and that even with such immunity, the client would be reasonably protected. It was claimed that if counsel were to be liable, he would, to safeguard himself, advise the proving of matters of doubtful efficacy and the summoning to court of unnecessary witnesses with the result that the costs of litigation would multiply. All cases would take very much more of the public time and there would be an enormous loss of time and money on the part of witnesses retained in court for days during which evidence would be given of doubtful assistance to the litigant or to the court. The general loss to the public would far outweigh any slight benefit that might accrue through making counsel liable in negligence for mistakes by counsel in the preliminary documents, and litigation would become the preserve of the very wealthy. 30. One view put forward was that a barrister should be liable for negligence where, by retaining papers in his possession for an unreasonable length of time with- out taking the necessary steps in relation to them, he had thereby caused the client's action to be defeated by the efflux of time. We cannot say that there is any immunity from action for this type of negligence. (c) Non-Litigation Work 31. It was at one time a commonly held view in this country that a barrister was not liable for professional negligence in non-litigious matters by reason of the absence of a contractual relationship between himself and his client and that a solicitor was also immune when he took and acted on the advice of competent counsel in such a matter. In support of the suggestion that this position should be given legal sanction, the view is advanced that in this country the ascertainment of legal rights whether by litigation or by legal advice is to a great extent subsidised by the solicitor's pro- fession. It was urged that even in non-contentious mat- ters a poor person frequently cannot afford to meet the 66

would be bound to reduce his effectiveness in conducting his client's case. It would introduce a new and irrelevant factor into every decision he had to make—whether he could be held to have been negligent, if the decision should turn out to have been the wrong one. The tendency would be for every advocate to become over- cautious, and the clients would suffer as a result. 22. It would be undesirable to allow an action for negligence to lie in respect of advocacy in court because to do so would in effect be to permit a complete retrial of the original action with a view to determining what the result would have been if the case had been con- ducted in the way suggested by the disappointed client. In criminal cases this would allow a convicted criminal to sue his counsel and in effect have his case retried as a civil matter even when all forms of appeal on the criminal side had been exhausted. 23. Viewing the matter from the point of view of the public, an important aspect is that pointed out by Lord Denning M.R. in the Court of Appeal hearing of Rondel v. Worsley. The advocate owes a duty to the court and to the community generally as well as to his client. He should not be subjected to the new pressure of possible actions for negligence which could. tend to make advocates lean too heavily on the side of satisfy- ing the client to the possible neglect of their para- mount duty to uphold truth and justice. 24. It is said that in the past the community has gained much more than it has lost by the existing measures of immunity enjoyed by barristers. It enables the barrister to exercise his judgment in a decisive manner without fear of possible repercussions to himself. Even if there may have been occasions in the past when clients have suffered as a result of errors made by their barristers, there is no evidence that such incidents have been at all numerous. So far as solicitors are concerned actions for negligence against them have been few. 25. It is suggested that the danger of vexatious actions brought by persons with no real cause of action would be much greater in the case of the advocate than in the case of persons in other professions. An example of this is to be seen in the case of Rondel v. Worsley where a lay litigant, who did not appear to have even a stateable case, exposed a barrister to protracted and costly proceedings in the High Court, the Court of Appeal and the House of Lords. It is probable that the disappointed litigant is much more likely to fall victim to the disease of litigation for litigation's sake than the person who complains of other forms of professional negligence. 26. The point made in the preceding paragraph in regard to vexatious actions against barristers applies with equal force to actions against solicitor advocates. Even unfounded complaints resulting in court proceed- ings by a client against a solicitor have a punitive effect upon his professional reputation and practice. Because of this, the solicitor can be held up to ransom for excessive damages which may bear no relation to the loss involved. 27. In general it seems that the case based on the public interest in favour of maintaining the immunity of barristers from actions for professional negligence in relation to advocacy in court applies equally to solici- tors when exercising their right of advocacy before the courts in which they are entitled to do so. As already mentioned in paragraph 6, the position may well be that solicitors already have this immunity. However, it has been suggested to the Committee that it