68 / 262
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.
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
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)
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