The Gazette 1973

Court Practice Report on Liability of

Barristers and Solicitors

Fourteenth Interim Report

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;

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

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

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

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

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.