The Gazette 1973

costs involved of the research necessary to advise on a difficult or doubtful point, and much of this work is subsidised by the solicitor's profession. It was claimed that if the liability of solicitors for negligence were to be further extended, their difficulty in being insured against such claims and the practical impossibility of a solicitor obtaining insurance cover if a previous claim made against him had been comprised or had resulted in the award of damages would compel them for their own protection to eliminate from among their clients virtually all persons who could not afford to pay the full fees. The result, it was claimed, would involve grave injustices to the poorer section of the community. Committee's Recommendation 32. The Committee's approach to the question of liability of barristers and solicitors for professional negligence has been conditioned by the following matters : (1) the present position has given rise to no public disquiet. This is apparent from the lack of public interest shown in our newspaper notices referred to earlier in paragraph 4. (2) Few claims for professional negligence against solicitors have been brought to court. (3) The general uncertainty which exists as to some aspects of the law on liability in this area of professional negligence. (4) The greater importance that will attach to this topic in the event of implementation of our recommendation in our Thirteenth Interim Report to extend the solicitor's right of audience to all courts. 33. The Committee accept that the immunity of advocates from action is based on the considerations of public policy recognised in the case of Rondel v. Worsley and which ultimately moved the House of Lords to hold that barristers cannot be successfully sued in respect of negligence in advocacy work. In

regard to advocacy work, we take the view that the same considerations of public policy confer a like im- munity on solicitors acting as advocates. If our view as to the legal position in regard to advocacy work is correct, then we think that no change is desirable in this situation. 34. With regard to the preparatory work in litigation, the legal position seems in doubt and in our view it would be preferable to have the position clarified by court decisions in appropriate cases rather than attempt to define the position by statute. It seems to us that it would be better to allow the law on this question to be elaborated in the courts by the application and de- velopment of common law principles rather than by statutory provision because of the difficulty of foresee- ing and providing by statute for the variety of cir- cumstances and situations in respect of which the law of negligence may be invoked. An example of how the process has operated in the past is illustrated by Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.G. 465 which decided that an action for negligence could be maintained in respect of gratuitous professional advice, a view which was assented to in Bank of Ireland v. Smith [1966] I.R. 646. 35. In regard to non-litigious work, the law, in our view, is that barristers and solicitors are liable for pro- fessional negligence. If this view is correct, we do not think it desirable to alter the situation. The opinion, already referred to in paragraph 31, that a barrister was not liable for professional negligence in non-litigious matters because of the absence of a contractual relation- ship between him and his client we believe to be wrong. We do not think that it would be desirable to establish by statute any such immunity. Signed : BRIAN WA L S H, Chairman J . K . WALDRON, Secretary. 18 May 1971.

IRISH JUDGE IN MAJOR DECISION Judge Cearbhall O Dalaigh was one of five judges of the Court of Justice of the European Communities, sitting in Luxembourg under the President, Mr. R. Lecort, which has delivered its judgment in a case which the E.E.G. Commission brought against the Italian Government.

taking up duty in Luxembourg, and this was the first judgment in which he was involved. The Court held that member States were not entitled to invoke rules of domestic law or domestic practice to justify non-implementation of Community regulations. The Italian Government, by not taking all the steps required to implement the system of premiums for the destruction of fruit trees, was found to have defaulted on its obligations. Italy was ordered to pay the costs in the case. —Irish Independent (20 February 1973)

The case concerned the failure of the Italian Govern- ment to implement a Community directive aimed at rationalising fruit production within the Community. Judge O Dalaigh sat in on the case a day or two after

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