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PROFESSIONAL NEGLIGENCE
RONDEL V. WORSLEY
On the ground that a question of law of impor
tance was involved, namely, whether an action for
negligence could lie against a barrister, the appel
lant in
Rondel v. Worsley
was given leave to ap
peal to the House of Lords. That appeal was heard
on November 22. In addition to that question, the
House considered whether a barrister would be
liable for negligence in respect of work othen
than work in court and whether ak solicitor was
entitled to immunity from suit when appearing as
an advocate. Extracts from the opinions of their
Lordships on those questions are given below—
necessarily brief extracts, since the opinions run
over 40 closely printed pages.
Barristers: Conduct of Cases in Court
It is,
I think, clear that the existing rule was
based on considerations of public policy. But
public policy is not immutable and doubts appear
to have arisen in many quarters, whether that rule
is
justifiable
in present day conditions
in
this
country.
Is it in the public interest that barristers and
advocates
should
be
protected
against
such
actions? Like so many questions which raise the
public interest, a decision one way will cause hard
ships to individuals while a decision the other way
will involve disadvantage to the public interest. .
.
.
Immunity from action by the client is not the
only way in which it has been thought proper to
protect counsel. It has long been established that
judge, witnesses and barristers alike have absolute
privilege with regard to what is said by them in
Court. ... It would, in my view, be incongruous
if counsel were immune from action by any one
other than his client in respect of his conduct in
Court even where that conduct arose from malice,
but yet liable to be sued by his client for negli
gence.
The rule preventing counsel from suing for fees
may still have fiscal and other consequences, but
I do not think that it is now relevant when con
sidering whether it should be possible
to sue
counsel for professional negligence.
Lord Reid
The quality of an advocate's work would suffer
if, when deciding as a matter of discretion how
best to conduct a case, he was made to feel that
divergence from any expressed wish of the client
might become the basis for a future suggestion
that the success of the cause had thereby been
frustrated. It would be a retrograde development
if an advocate were under pressure unwarrantably
to subordinate his duty to the Court to his duty to
the client. It must be recognised that there must,
in the past, have been instances where a lack of
due care and skill has resulted in the loss f a
case. Such instances may unhappily occur in the
future. It becomes, therefore, a matter of balanc
ing the public advantages and the public dis
advantages which are the result of an immunity
of the advocate from a suit alleging negligence in
the conduct and management of a court case. In
my view, the public advantages outweigh the dis
advantages.
Lord Morris of Borth-y-Gest
It is argued that this immunity sprang from the
fact that barristers for reasons of status cannot sue
for fees : and that, since the case of
Hedlcy Byrnc
has held that work may impose a liability for
negligence even though a defendant had no con
tract with, and received no remuneration from,
the plaintiff, the immunity no longer holds good.
But the hypothesis that the immunity stems from
the inability to sue for fees is unsound.
To what extent have the opinions in
Hedley
Byrnc
affected the position? Those opinions were
dealing in the main with situations in the nature
of contract where but for the absence of con
sideration there would be a contract (see especially
the opinion of Lord Devlin). But to say that they
are confined to such situations would be to take
too narrow a view. The special circumstances,
however, in which the law will infer an assump
tion of
liability are
those
in which such an
inference is a fair reading of the relationship in
which the parties stand. On the facts in
Hedley
Byrne's
case
the existence of a disclaimer of
liability by the defendant bank was held to pre
clude the establishment of such a relationship. In
the present case also it is clear from the circum
stances that there was no such assumption of
liability.
Lord Pearce
Prima jade
counsel undertaking his client's case
is within the general rule that he will be liable
for negligence. I have, I hope, said enough to show
his immunity (if it exists) from this general rule
cannot depend on his status or his inability to sue
(where he is
in para materia
with a physician). In
•his incapacity to contract, he is to be distinguished
from a physician and upon this, as I have already
mentioned, the respondent founds an argument.
It comes to this, that if counsel is incapable of
contracting he cannot expressly or impliedly con
tract. It
is
said
that
the general
rule
from
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