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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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