The Gazette 1971

and his liability can, therefore, only arise as a

Hedley

Byrne v Heller

liability.

The basis of an action by a client against his soli-

citor is breach by the solicitor of the duty of care in

performing the obligations arising from his accep-

tance of the client's instructions, that is to say, in

contract for failure to exercise reasonable care and

skill.

The standard by which a solicitor's performance of

his duty to his client is judged according to the

standard of reasonable care and skill in carrying out

the work undertaken. In

Rondel v Worsley

the

House of Lords approved of a passage in the judg-

ment of Tindal C.J. in

Lanphier v Phipos :

Every person who enters into a learned profession

undertakes to bring to the exercise of it a reason-

able degree of care and skill. He does not under-

take if he is an attorney, that at all events you

shall gain your case. . . . There may be persons who

have higher education and greater advantages than

he has, but he undertakes to bring a fair, reason-

able and competent degree of skill . . .

Standard of care and skill

The standard of reasonable care and skill is to be

measured by that of other skilled practitioners in the

same field, though a Court might hold a particular

and widely adopted practice to be unsafe and negli-

gent. A solicitor holding himself out as a specialist

may well be expected that greater degree of skill and

care in his own chosen field in consequence.

The onus of proof of negligent performance of the

contractual obligations is, as is normal, cast upon the

client who brings the claim. The plaintiff to succeed

must establish the facts relevant to his claim on

balance of probability and not on mere possibility.

This being so, where the evidence of professional

opinion on the point at issue were to be equally

divided, it is anticipated that the client would fail to

recover.

Where the solicitor acts as advocate in the lower

Courts in which he has a right of audience, it seems

that he is not liable to be sued for negligence.

When barrister liable for negligence

The position of the English barrister is clearly stated by

Mr. G. A. Rink, Q.C., National Correspondent for the

English Bar on this topic, as follows :

(1) It has for centuries been considered, and it has

recently been decided bv the highest authority (the

House of Lords), that a barrister cannot be sued for

negligence in connection with the conduct of litiga-

tion

(Rondel v Worsley).

It is still an open question

whether a barrister can be sued successfully for negli-

gence in any matter not concerned with proceedings

in Court, but on the whole it seems probable that he

would be liable for such negligence. (For convenience,

work not connected with proceedings in Court is

referred to below as "pure paper work".)

(2) If the action lies, it lies in tort—for breach of

the duty to show reasonable skill and care (cf.

Hedley

Byrne v Heller).

(3) (a) The standard is the skill and care which

would have been exercised by a barrister of reason-

able competence in the field in which the barrister

concerned practises, (b) If necessary, evidence would

be given as to the views, and the normal course of

practice, of barristers in the relevant field. If a sub-

stantial body (not necessarily as many as half) of

them adopted a particular course of practice, a

barrister would be most unlikely to be regarded as

negligent if he followed it.

(4) A barrister is not liable for negligence in the

conduct of Court proceedings. His immunity is based

on public policy and long usage in that:

(a) The administration of justice requires that a

barrister should be able to carry out his duty to the

Court independently and without fear of being sued

if he does so contrary to the interests of his own client.

(b) Actions for negligence against barristers would

make the re-trial of the original action inevitable

(there does not appear to be any other class of negli-

gence in which a re-trial of previously decided issues

would

normally

be involved).

client, however unreasonable or cantankerous or

likely to sue him if dissatisfied.

(d) The barrister's immunity in connection with

Court proceedings is part of the general policy for

immunity for judges, counsel and witnesses.

There are no exceptions to the rule that a barrister

cannot be sued for negligence in the conduct of

Court proceedings.

The position in Ireland

There is little doubt that similar considerations apply in

most other places where the profession is divided. The

national correspondents for Scotland and Ireland both

refer to

Rondel v Worsley

as binding and perhaps final

authority, although it is stated by Mr. J. McMahon,

SC., on behalf of the General Council of the Bar of

Ireland, that the question whether a barrister should be

liable in negligence to his client has been referred to a

Government Committee on Court Practice and Proce-

dure. The view is expressed, however, that if the tradi-

tional immunity of barristers from all actions for negli-

gence is restricted, public policy will still bar an action

by a client against a barrister for negligence in the

conduct of Court proceedings.

"Traditional immunity" of the barrister from all

actions for professional negligence is hardly likely to

continue since the decision in

Hedley Byrne v Heller.

It would be interesting to hear what arguments might be

advanced against the proposition that a barrister owes

a duty of care to his client. None of the reasons which

have been given to support the doctrine of immunity

applies to the barrister's work outside the conduct of

Court Proceedings. Taken separately, none of them

would appear to justify a right to immunity in respect

of everything a barrister does in the conduct of Court

proceedings. However, in any place where

Rondel v

Worsley

is accepted as binding authority, the immunity

will remain. Sir Owen Dixon, former Chief Justice of

the High Court of Australia, in a lecture on Professional

Conduct

said :

To be a good lawyer is difficult—to master the law is

impossible. But I should have thought the first rule of

conduct for counsel, the first and paramount ethical

rule, was to do his best to acquire such a knowledge

of the law that he really knows what he is doing

when he stands between his client and the court, or

advises for or against entering the temple of justice.

In similar vein Abbot C.J.

said:

No attorney is bound to know all the law; God forbid

that it should be imagined that an attorney, or a

counsel, or even a judge is bound to know all the

law; or that an attorney is to lose his recompense on