102 / 736
gence in doing "pure paper work" in the sense
which I have indicated.
Lord Pearson
The Position of Solicitors
If it is in the public interest to protect counsel,
what good reason is there for withholding similar
protection from solicitors? .
.
. There are differen
ces between the position of barristers and solici
tors. But the case for immunity of counsel appears
to me to be so strong that I would find it difficult
to regard those differences as sufficient to justify
a different rule for solicitors .
.
. my present view
is that the public interest does require that a soli
citor should not be liable to be sued for negli
gence in carrying out work in litigation which
would have been carried out by counsel if counsel
had been engaged.
Lord Reid
The position with
regard
to a solicitor
is
different. No doubt when the law was evolved in
regard to his responsibility the .
.
. solicitor's main
function was not litigation. And when he was en
gaged in litigation he was primarily concerned
(under contract)
in employing and
instructing
counsel, carrying out his advice and organising the
case behind the lines. ... In respect of these func
tions it was assumed and held that he was liable
in negligence on his contract.
In my opinion, on the reasoning of that case
[Munster v. Lamb
(1883) 11 Q.B.D. 588] ... a
solicitor, while performing counsel's function in a
court of law, would be entitled in spite of his con
tract to the same immunity from suits for negli
gence.
Lord Pearce
I see no reason why a solicitor acting as an
advocate should not claim the same immunity as
can counsel, in my opinion, for acts of negligence
in his conduct of the case. But this principle, I
have no doubt, must be rigorously contained for
it is only while performing the acts which counsel
would have performed had he been employed that
the solicitor can claim that imnunity. Thus, for
example, if he so fails properly to instruct himself
he cannot claim any immunity .
.
. So, too, a
solicitor who is going to act as the advocate cannot
claim immunity if he fails to appear at the right
time on the duly appointed day for the hearing of
the case, for, in contrast to the barrister who is
incapable of contracting with his client, and for
the reasons I have given is in any event immune,
the solicitor is in breach of contract. ... So I
think the general result is likely to be that a solici
tor acting as advocate will only be immune from
the consequences of his negligence while he is
actually acting as an advocate in court on behalf
of his client or settling the pleadings. Thus he
would be immune if, having secured the atten
dance of witnesses, he negligently fails to call one
of them.
Lord Upjohn
Does a solicitor advocate have the same im
munity as a barrister advocate from liability for
negligence? Logically it seems right that he should,
because the same reasons of public policy seem
equally applicable to both of them. There are,
however, some difficulties. The principle of a bar
rister's incapacity to contract is not readily (if at
all) applicable to a solicitor. ... If public policy
requires that a solicitor must have immunity from
legal
liabiliy in respect of his advocacy work,
what is to be the contractual position?
Lord Pearson
The foregoing article appeared in The New Law
Journal (Nov. 30, 1967) to whom we are indebted
for republication. The Society are subscribers to
the Journal.
INDEX
OF STATUTORY
INSTRUMENTS
Published since September 1967
Note—It has been decided to discontinue the list of
Labour Court Recommendations, but members
requiring to consult them, may do so
in the
library.
AGRICULTURE, LAND AND FISHERIES
Subject Matter and Reference Numbers
Diseases of Animals—Movement of cattle, sheep or pigs
prohibited from any Livestock Mart or for export without
a licence after 13th December 1967—283/1967.
Foot and Mouth Disease.
Importation of animals from Great Britain and the Con
tinent prohibited after 15th November 1967—235/
1967.
Importation of cattle, sheep and pigs from Northern
Ireland prohibited after 13th December 1967 save
under licence—282/1967.
Entry of unauthorised persons prohibited at ports or
harbours in the State from Great Britain up to 31st
December 1967—264/1967.
Entry of unauthorised persons prohibited beyond 31st
December 1967 from ships—298/1967.
Entry of persons into the State restricted to specified
places after 17th December 1967—287/1967.
Cattle may not be presented for sale or exhibition at
fairs save under licence, or if at a licensed Livestock
Mart or at Dublin Cattle Market—263/1967.
Existing restrictions on presentation of cattle at sales and
fares for sale or exhibition at fairs extended beyond
31st December 1967—296/1967. _
Sheep and pigs prohibited from being presented for sale
or exhibition at fairs save under licence unless at a
licensed livestock mart, or at Dublin Cattle Market—
295/1967.
80