101 / 736
Wilkinson v. Coverdale to Hedley Byrne
is based
on a capacity to contract for there must be some
thing akin to contract to involve liability for a
gratuitous act; a voluntary assumption of liability
is equivalent to a contract. ... I cannot accept
this view. It seems to me clear that
pnma jade
counsel falls within the general principle.
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
in
capability to contract. I think that public policy
necessitates that, at all events in matters pertain
ing to litigation, a barrister should have this im
munity, and basically it depends upon two fac
tors. First, a barrister is in a unique position, 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 prac
tice and that he is properly instructed or, to put it
more bluntly, properly paid according to his stand
ing at the Bar. .
.
. The second and more impor
tant consideration is that the barrister is engaged
in the conduct of litigation whether civil or crimi
nal 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 other court which in certain cases trans
cends that primary duty.
Lord Upjohn
It has been suggested that the reasoning of the
Court of Appeal, especially Lord Lindley, in the
case of
In re Le Brasseur and Oakley
was defec
tive, in that it was being said that because a barris
ter could not sue for his fees, therefore he must be
immune from any liability for negligence. But I
think that this criticism is based on a misunder
standing of
the reasoning, which was entirely
sound. The reasoning was that the relation be
tween the barrister and the client (acting through
his solicitor) is noncontractual and does not create
legal rights or obligations on either side.
The doctrine is logical and consistent and sup
ported by adequate reasons of public policy, and
it has remained unchallenged for more than a
hundred years until
it was challenged
in
the
present case.
There remains the question whether the relevant
requirements of public policy may have changed
in the meantime. I think a negative answer should
be given.
Lord Pearson
Barristers: Opinions and Paper Work
The main reasons on which I have based my
opinion relate to the position of counsel while en
gaged in litigation, when his public duty and his
duty to his client may conflict. But there are many
kinds of work undertaken by counsel where no
such conflict would emerge, and there I see little
reason why the
liability of counsel should be
different from that of members of any other pro
fession who give
their professional advice and
services to their clients.
Lord Reid
The
law has not differentiated between the
liability of a barrister in litigation and in his other
non-litigious work as a barrister .
.
. And it is also
clear that the various rulings with regard to the
immunity of a barrister from liability for negli
gence were intended to cover all his work as a
barrister. In my opinion, therefore, under the law
as it now stands and has stood for some two hun
dred years, and perhaps considerably more, a bar
rister cannot be sued for negligence in respect of
his work as a barrister.
Lord Pearce
As a practical matter, I do no more than sug
gest that the immunity of counsel in relation to
litigation should start at that letter before action
where, if my recollection is correct, taxation of
party and party costs starts. What, then, of the
immunity of counsel before that stage or when
acting in matters which could not possibly be des
cribed as pertaining to litigation but rather as
pure paper-work? ... I think this is a most
difficult matter; I find it very difficult to see upon
what principle the immunity which all of your
Lordships are agreed must, as a matter of public
policy, be granted to counsel while acting in liti
gious matters should extend
to matters which
are not litigious. ... I cannot myself see that the
case of
Hedley Byrne
has made
the slightest
difference to the liability of counsel if it exists in
this respect. If there is, as I think, any liability
upon counsel in respect of non-litigious matters,
that was inferentially pointed out in the case of
Nocton v. Ashburton
as long ago as 1914. That
then caused no excitement amongst counsel (so
far as is now known) and for my part I am quite
unable to understand why
Hedley Byrne
when
properly understood should cause all the excite
ment, which of course it has done, within the pro
fession today.
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 do not show it. It seems
to me that ... it is at least doubtful whether bar
risters have any immunity from liability for negli-
79