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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
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
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