Rondel v Worsley [1967] UKHL 5 (22 November 1967)

RONDEL

v.
WORSLEY

Lord Reid

Lord

Morris of
Borth-y-
Gest

Lord
Pearce

Lord
Upjohn

Lord
Pearson

Lord Reid

MY LORDS,

In 1959 the Appellant was charged at the Central Criminal Court
with causing grievous bodily harm to one Manning. He was not given
legal aid but after the case had proceeded for some time he was informed
that he could have a “dock brief”. He chose the Respondent to be his
counsel and. in accordance with his duty as a barrister, the Respondent
agreed to act for him. During an adjournment he gave to the Respondent
his account of the affair. The Respondent then cross-examined the Crown
witnesses and called the Appellant and another witness. The Appellant
was convicted and it is plain that he had no real defence. But he was much
aggrieved by evidence that he had used a knife; he wanted to establish that
he had inflicted Manning’s injuries with his hands alone, or by biting, and
apparently the Respondent did not ask all the questions or lead all the
evidence he had suggested.

In February 1965 the Appellant raised the present action. His original
statement of claim, apparently prepared by himself, was barely intelligible.
In April the Respondent sought an order that the statement of claim be
struck out as disclosing no cause of action and also as being irregular.
In May the Master ordered that the Statement of Claim be struck out and
the action dismissed. The Appellant appealed and Browne J. asked
the Official Solicitor to instruct counsel to act as amici curiae.

In November 1965 Lawton J. heard argument for five days on the question
whether the statement of claim disclosed any cause of action and, in a learned
and elaborate judgment delivered on 21st December, he held that it did not
because a barrister cannot be sued by his client for negligence or lack
of skill in presenting his client’s case in court. I shall not deal with attempts
to improve the statement of claim by amendment. And I shall not deal
with the facts beyond saying that possibly a case could be made out to the
effect that the Respondent made some error of judgment—I am not in a
position to express an opinion about that—but there is nothing in the
facts before us to indicate any professional negligence or lack of skill on
his part, and nothing to indicate that the Appellant would have been any
better off if the Respondent had acted differently.

Leave to appeal was given and the Court of Appeal (Lord Denning, M.R.
and Danckwerts and Salmon L.JJ.) on 20th October 1966 dismissed the
appeal. Salmon L.J. said, I think justly, that the Appellant’s claim was
clearly as devoid of merit as it was of any prospect of success. But in
view of the importance of the question of law involved this House gave
leave to the Appellant to appeal.

The argument before your Lordships has been directed to the general
question of barristers’ liability and has ranged widely. For the Appellant
it was said that all other professional men, including solicitors, are liable
to be sued for damages if loss is caused to their clients by their lack of
professional skill or by their failure to exercise due care ; so why should
not barristers be under the same liability? For the Respondent it has
been shewn that for at least two hundred years no judge or text writer has
questioned the fact that barristers cannot be so sued, and a variety of reasons
have been adduced why the present position should continue.

I do not propose to examine the numerous authorities. 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. So
it appears to me to be proper to re-examine the whole matter. In doing so
I shall confine my attention to conditions in England and Scotland, between
which there appears to me to be no relevant difference. I do not know enough
about conditions in any other country to express any opinion as to what
public policy may there require.

There is no doubt about the position and duties of a barrister or advocate
appearing in Court on behalf of a client. It has long been recognised that no
counsel is entitled to refuse to act in a sphere in which he practices, and on
being tendered a proper fee, for any person however unpopular or even
offensive he or his opinions may be, and it is essential that that duty must
continue: justice cannot be done and certainly cannot be seen to be done
otherwise. If counsel is bound to act for such a person, no reasonable man
could think the less of any counsel because of his association with such a
client, but, if counsel could pick and choose, his reputation might suffer if
he chose to act for such a client, and the client might have great difficulty
in obtaining proper legal assistance.

Every counsel has a duty to his client fearlessly to raise every issue, advance
every argument, and ask every question, however distasteful, which he thinks
will help his client’s case. But, as an officer of the Court concerned in the
administration of justice, he has an overriding duty to the Court, to the
standards of his profession, and to the public, which may and often does lead
to a conflict with his client’s wishes or with what the client thinks are his
personal interests. Counsel must not mislead the Court, he must not lend
himself to casting aspersions on the other party or witnesses for which there
is no sufficient basis in the information in his possession, he must not with-
hold authorities or documents which may tell against his clients but which
the law or the standards of his profession require him to produce. And
by so acting he may well incur the displeasure or worse of his client so that if
the case is lost, his client would or might seek legal redress if that were open
to him.

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 hardships to individuals while a decision the
other way will involve disadvantage to the public interest. On the one hand,
if the existing rule of immunity continues there will be cases, rare though
they may be, where a client who has suffered loss through the negligence
of his counsel will be deprived of a remedy. So the issue appears to me
to be whether the abolition of the rule would probably be attended by such
disadvantage to the public interest as to make its retention clearly justifiable.
I would not expect any counsel to be influenced by the possibility of an action
being raised against him to such an extent that he would knowingly
depart from his duty to the Court or to his profession. But although
the line between proper and improper conduct may be easy to state
in general terms, it is by no means easy to draw in many borderline cases.
At present it can be said with confidence in this country that where there is
any doubt the vast majority of counsel put their public duty before the
apparent interests of their clients. Otherwise there would not be that implicit
trust between the Bench and the Bar which does so much to promote the
smooth and speedy conduct of the administration of justice. There may be
other countries where conditions are different and there public policy may
point in a different direction. But here it would be a grave and dangerous
step to make any change which would imperil in any way the confidence
which every Court rightly puts in all counsel who appear before it.

And there is another factor which I fear might operate in a much greater
number of cases. Every counsel in practice knows that daily he is faced with
the question whether in his client’s interest he should raise a new issue, put
another witness in the box, or ask further questions of the witness whom he
is examining or cross-examining. That is seldom an easy question but I think

that most experienced counsel would agree that the golden rule is—when in
doubt stop. Far more cases have been lost by going on too long than by stop-
ping too soon. But the client does not know that. To him brevity may indicate
incompetence or negligence and sometimes stopping too soon is an error of
judgment. So I think it not at all improbable that the possibility of being
sued for negligence would at least subconsciously lead some counsel to
undue prolixity which would not only be harmful to the client but against
the public interest in prolonging trials. Many experienced lawyers already
think that the lengthening of trials is not leading to any closer approximation
to ideal justice.

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: and for reasons similar to those which apply to
proceedings in Parliament. If there was ever any doubt about that it was
removed by the decision in Munster v. Lamb 11 Q.B.D. 588 where a solicitor
was sued for defamatory words which he had spoken while defending an
accused person. Brett M.R. said that he assumed that the words were spoken
maliciously, without any justification or excuse, from the indirect motive of
personal ill will or anger towards the prosecutor, and that the words were
irrelevant to every issue of fact in the case. Yet it was held that there was
absolute privilege. He said:

” to my mind it is illogical to argue that the protection of privilege ought
” not to exist for a counsel who deliberately and maliciously slanders
” another person. The reason of the rule is that a counsel who is not
” malicious and who is acting bona fide may not be in danger of having
” actions brought against him ” (page 604)

And Fry, L.J., dealing with the analogous cases of judges and witnesses,
said:

” The rule of law exists not because the conduct of those persons ought
” not of itself to be actionable but because if their conduct were action-
” able, action would be brought against judges and witnesses in cases
” in which they had not spoken with malice, in cases in which they had
” not spoken with falsehood. It is not a desire to prevent actions from
” being brought in cases where they ought to be maintained that has led
” to the adoption of the present rule of law: but it is the fear that if
” the rule were otherwise numerous actions would be brought against
” persons who were merely discharging their duty. It must always be
” borne in mind that it is not intended to protect malicious and untruth-
” ful persons, but that it is intended to protect persons acting bona fide
” who under a different rule would be liable, not perhaps to verdicts and
” judgments against them but to the vexation of defending actions.”

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 negligence. And all the arguments in the passages which I have
just cited seem to me to be at least equally applicable to the present
question.

There are other arguments which support the continuance of the present
rule: they do not appear to me to be conclusive, but they do have weight.
I shall only mention one. Suppose that, as in the present case, a convicted
man sues his counsel. To succeed he must shew not only that his counsel
was guilty of professional negligence, but also that that negligence caused
him loss. The loss would be the fact that he was wrongly convicted by reason
of his counsel’s negligence. So after the plaintiff’s appeal against conviction
had been dismissed by the Court of Criminal Appeal, the whole case would
in effect have to be retried in a civil court where the standard of proof is
different. That is something one would not contemplate with equanimity
unless there is a real need for it.

So the position appears to me to be this: if the present rule were changed
there would at least be a grave risk of consequences much against the public
interest. And what is to be the advantage? I do not think that it is
enough to say that there might—or even would—be an occasional case
where some client would recover damages from his counsel. There must be
more than that to justify incurring the disadvantages. And I do not believe
that there would be more than a very rare case where a client could succeed
in such an action, although there might be a number of cases where the
attempt was made. It would be absurd to say that there are no members
of the bar who might at some time fall short of a reasonable standard of
skill and care. But the practising Bar is limited in numbers and barristers
do not remain in practice unless they receive instructions from solicitors.
And the onus of proving professional negligence over and above errors of
judgment is a heavy one.

I think that some assistance can be got from looking at the record of
solicitors. They are liable to be sued for negligence in conducting cases and
they do conduct an immense number of cases in the lower courts. But
successful claims against them for negligence in doing the kind of work which
a barrister would do if instructed in the case appear to be very few in
number. As regards reported cases, there was a case in 1855—Stokes 2. K &
J. 232—but the researches of counsel have only discovered one recent
reported case—Scudder v. Prothero reported in the Times Newspaper of
16th March 1966. I find this case not easy to understand: it may have been
wrongly decided. There have also been one or two Scottish cases where a
solicitor has been held negligent in carrying out work in Court which would
have been done by an advocate if counsel had been instructed. There
were also put before your Lordships, by agreement of counsel, notes of a
number of claims against solicitors which had been or were in course of
being settled by an insurance company. If these notes can be treated as a
random sample they shew that among some 300 claims only about 8
are in respect of negligence by a solicitor in carrying out work which would
have been within the province of a barrister conducting litigation—a
proportion of less than three per cent.

For the reasons which I have given I am of opinion that it is in the public
interest to retain the existing immunity of barristers from action by clients
for professional negligence, at least so far as it relates to their work in
conducting litigation. And that would be sufficient to require the dismissal
of the present appeal. But to leave the matter there would, I fear, lead to
some misunderstanding or even confusion.

The main reasons on which I have based my opinion relate to the position of
counsel while engaged 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
profession who give their professional advice and services to their clients.
The members of every profession are bound to act honourably and in
accordance with the recognised standards of their profession. But that does
not, in my view, give rise to any such conflict of duties as can confront
counsel while engaged in litigation.

It was argued that, if counsel were to have immunity with regard to one
part of their work but not with regard to other parts, there would be great
difficulty in distinguishing between one case and another or determining
where the immunity is to stop. I do not think so. The same public
duty applies when drawing pleadings or conducting subsequent stages in a
case as applies to counsel’s conduct during the trial. And there will be
cases where the same will apply at a stage when litigation is impending.
But there are extensive fields of advisory work or work in drafting or revising
documents where that does not apply.

Then, some importance was attached in argument to the rule that counsel
cannot sue for their fees. That rule has a long history and before the
decision of this House in Hedley Byrne & Co. v. Heller [1964] AC 465 it
was regarded as a reason for the continuance of the other rule that counsel

cannot be sued for professional negligence. But the two rules now have
no necessary connection. The existence of 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 considering whether it should be possible
to sue counsel for professional negligence. In fact the rule has very little
practical importance in this connection for its abolition would very seldom
enable counsel to recover fees which they do not at present receive.

Finally, I must deal with a powerful argument for the Appellant to the
effect that, if it is unnecessary to protect solicitors by giving them immunity
from action by their clients, it cannot be necessary to protect barristers in
that way. But I would turn the argument the other way: if it is in the
public interest to protect counsel, what good reason is there for withholding
similar protection from solicitors? This matter has never been fully
considered. As I have already stated, there have been very few cases in
which the question could have been raised. And hitherto, in England at
least, cases conducted by solicitors have generally been of comparatively
minor importance. There are differences between the position of barristers
and solicitors: not all the arguments which I have adduced apply to solicitors.
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. I have already shewn that solicitors have the
same absolute privilege as counsel when conducting a case. So my present
view is that the public interest does require that a solicitor should not be
liable to be sued for negligence in carrying out work in litigation which
would have been carried out by counsel if counsel had been engaged
in the case.

Lord Morris of Borth-y-Gest

my lords,

This interlocutory appeal, which raises issues of considerable importance,
has been aided in its progress to your Lordships’ House by notable manifesta-
tions of patience and indulgence. The issues are of greater consequence than
would seem apparent from a narrative of the somewhat sombre facts out
of which they have, though tardily, emerged. It was as far back as April,
1959, that the Appellant went early one morning to a house in West London.
A man named Manning was doorkeeper at the house. At the conclusion of
a violent altercation between the Appellant and Manning the latter had the
lobe of an ear bitten off and his hand very severely damaged. The Appellant
was virtually unhurt. He has said that he went to the house on behalf of
its landlord, a man named Rachman. He has resented any suggestion that
he used a knife and has proclaimed that, by the use only of the strength of
his own hands, he tore Manning’s hand in half. A consequence of the
encounter was that the Appellant was charged. Being committed to the
Central Criminal Court he was arraigned before the Recorder of London
on Thursday, the 28th May, 1959. There were two counts in the indictment.
The first was that he caused grievous bodily harm to Manning with intent
to do him grievous bodily harm: the second was that he assaulted Manning
occasioning actual bodily harm. The prosecution case was opened, and
then the first witness was called and examined. At that stage the Appellant
asked for legal aid. The Recorder refused that application, but informed
the Appellant that he could instruct one of the counsel who were in Court
to appeal for him. The Appellant desired to have the Respondent as his
counsel and the Respondent, in accordance with the practice and etiquette
of the Bar, agreed to act. A fee of £2 4s. 6d. was paid. The Court granted
an adjournment of an hour to enable the Appellant to instruct the Respondent.
In fact the trial was not resumed until the next day. The Respondent cross-
examined the witnesses for the prosecution. The Appellant gave evidence
and another witness was called. The Respondent addressed the jury. After
a summing-up by the Recorder the Appellant was convicted by the jury

on the first count: the Recorder relieved the jury of the necessity of recording
a verdict on the second and less serious count. The Appellant was sentenced
to eighteen months’ imprisonment. The Appellant applied to the Court of
Criminal Appeal for leave to appeal. Leave was refused.

Time went by until—nearly six years after his trial—the Appellant issued
a writ against the Respondent.

The reflection is prompted as to whether there is truth in the aphorism that
long dormant causes often have more of cruelty than of justice in them.
The Appellant claimed damages for professional negligence. His writ was
on the 15th February, 1965. The Appellant delivered an undated Statement
of Claim. The Respondent took out a summons before the Master for an
order that the Statement of Claim be struck out as (i) disclosing no reasonable
cause of action under O. 18, r. 19 (1) (a), and (ii) being irregular in form.
On the 17th May, 1965, the Master ordered that the Statement of Claim
be struck out and that the action be dismissed with costs. On appeal to the
Judge in Chambers the learned judge (Browne, J.) adjourned the hearing
into open court and asked the Official Solicitor to instruct leading and
junior counsel to appear as amici curiae. Thereafter the matter was heard
by Lawton, J. The hearing lasted four days. At the end of the first day’s
hearing the learned judge afforded the Appellant an opportunity of putting
his Statement of Claim into a more intelligible shape. On the second day
the Appellant handed in a document that he wished to have treated as an
amended Statement of Claim. The learned judge allowed that document to
stand as his amended Statement of Claim subject to the omission of an
allegation of fraud which it was clear that the Appellant neither desired nor
intended to make. The amended Statement of Claim was held by the
learned judge to be ” well-nigh unintelligible “. It followed that it had to
be struck out as not complying in essential matters with the Rules of Court
and as being embarrassing both to the Court and to the defendant. The
correctness of the decision of the learned judge to strike out both the
original and the amended Statement of Claim had not been challenged. The
learned judge went on to consider whether, therefore, he should affirm the
Master’s order that the action be dismissed. He concluded that ” if it was
” possible to salvage something out of the plaintiff’s messy verbiage which
” would support a cause of action ” then it would be just that ” he should
” be given yet another chance to get his claim in order “. Apparently at
that stage the Appellant was offered another adjournment in order to re-amend
his Statement of Claim: he declined the offer and was content to stand upon
his amended Statement of Claim. What the learned judge did was to
consider whether, if a Statement of Claim could be framed in this case which
disclosed a cause of action for damages for negligence, an action would lie
against a barrister for negligence in and about his conduct of a client’s case
in court. Concluding that it would not, he held that there would be no
point in giving the Appellant leave to amend. He therefore dismissed the
Appeal.

The Appellant applied to the Court of Appeal for leave to Appeal. He
was granted leave. The Appeal was heard on four days in June, 1966. The
Appellant appeared personally but his solicitor tendered a lengthy, reasoned
document to the court setting out arguments and authorities. Leading and
junior counsel were instructed by the Official Solicitor to appear as amici
curiae. On the fourth day of the hearing a draft re-amended Statement of
Claim (prepared by the Appellant’s solicitor) was presented to the Court of
Appeal and leave to serve it was sought. Lord Denning, M.R., said that, if
an action does lie against a barrister for negligence in the conduct of a
case, the draft re-amended Statement of Claim did as a document disclose
a cause of action. He held, however, as did Danckwerts and Salmon, LJJ.,
that no such action does lie. Accordingly the application for leave to serve
the re-amended Statement of Claim did not arise for decision. Salmon, LJ.
added, however, that though he would agree that the new document was
” technically in order” he would have been unwilling to give leave to
serve the re-amended Statement of Claim on the ground that ” it would be
” most unjust at this stage to allow this re-amended Statement of Claim to

” be delivered some seven and a half years after the plaintiff’s claim is
” alleged to have arisen in an action which is clearly as devoid of merit as
” it is of any prospect of success “. Leave to appeal having been given by
this House, application was made for leave to serve the re-amended Statement
of Claim under Order 20, rule 5 of the Rules of the Supreme Court, 1965.
On behalf of the Appellant it was, however, suggested that if the Appellant’s
arguments prevailed the case should be referred back for a decision as to
whether leave should be given to serve the re-amended Statement of Claim.

It is in this somewhat uninspiring setting that a question is presented for
decision that for long has been generally regarded as well settled. It must
be decided without regard to the merits or demerits or the tensions of any
particular case. As illustrative, however, of a type of possible action which
calls for examination the complaints of the Appellant in this case as they
have emerged in the draft of the potential re-amended Statement of Claim
merit examination. The substance of them was that the Respondent failed
to put certain questions to witnesses or to call, or to take the necessary steps
to call, certain witnesses. There had never been any doubt that it was the
Appellant who caused the very severe injury to Manning’s hand or that it
was he who bit off the lobe of Manning’s ear. The Appellant’s case was
that he had only acted in self-defence. He now complains that after he had
instructed the Respondent as to the facts which he said supported his case
the Respondent (a) failed in examining or re-examining a defence witness
to bring out that Manning had associates or friends at the scene of the
incident who could have helped him in a fight; (b) failed to cross-examine
Manning or a doctor who was a prosecution witness as to the impossibility
of the wound having been inflicted by a knife or similar weapon ; (c) failed
to elicit evidence from the witnesses at the trial or to call or get witnesses
to prove that the Appellant (as rent collector and caretaker for Rachman)
had authority to go to the house in question. The complaint of the Appellant
was that as a result of these omissions he was wrongly convicted. It may
well be open to doubt whether evidence as to some of the matters referred
to would have been admissible but I find it unnecessary to consider this
point.

The searching and exhaustive review of the relevant authorities which
was a feature of the careful addresses of learned counsel revealed with
clarity (a) that it has for long been considered to be settled law that a
barrister may not and does not enter into any contract which enables him
to sue for fees and, (b) that it has for long been considered to be settled
law that an action alleging negligence against a barrister may not be brought.
In this case the first of these has not been challenged. Learned counsel for
the Appellant (while reserving a contention that a barrister could enter into
a special contract) was content to accept that it is the law today that a
barrister cannot sue for fees and that this inability rests on a rule of etiquette
which has now hardened into a rule of law. As it was no part of the
argument for the Appellant to suggest that this rule of law should now
be re-examined or should be reversed it is not necessary to probe deeply
into the authorities which recognise it nor to consider whether the reasons
upon which it has been based possess today any current validity. Suffice
it to say that the rule existed in 1742 when in Thornhill v. Evans 2 Atkyns
330, Lord Hardwicke L.C. proclaimed:

” Can it be thought that this Court will suffer a gentleman of the
” bar to maintain an action for fees which is quiddam honorarium or if
” he happens to be a mortgagor to insist upon more than the legal
” interest under pretence of gratuity or fees for business formerly done
” in the way of a counsel?”

Lord Kenyon in 1792 in Turner v. Philipps, Peake 166, mentioned the
general opinion of the profession that the fees of barristers and physicians
were as a present by the client and not a payment or hire for their labour.
I do not find it necessary to refer to the various later statutory provisions
beginning with an Act in 1858 which have brought it about that physicians
(apart from Fellows of the Royal College of Physicians) may now sue for

professional fees. There are decisions which show that physicians could be
held liable for lack of care and skill even at dates when they could not sue
for their fees. The disability of physicians to sue for fees existed in 1791
when the case of Chorley v. Bolcot, 4 Term 317, was decided. It was stated
that if their fees were other than honorary, physicians would be placed upon
” a less respectable footing in society ” than that in which they were then
held. In that case it was said in argument that the comparable disability of
barristers was founded on grounds of public policy. In 1819 in Morris v.
Hunt 1 Chitty 544, Bayley J. stated that barristers cannot sue for their fees.
In Poucher v. Norman in 1825 3 B. & C. 744 it was held that one who was
a certified conveyancer but who was not a barrister could maintain an action
to recover compensation for work done and it was said that both physicians
and barristers who acted ” with a view to an honorary reward” were
exceptions to the general rule that one who bestows his labour for another
has a right to recover compensation. A physician still had no right of
action for fees when in 1842 the case of Vietch v. Russell 3 Q.B. 928 was
decided. Lord Denman C.J. said:

” It must be assumed as clear that physicians and counsel usually

” perform their duties without having a legal right to remuneration.

” Such has been the general understanding.”

He did add however:

” To prevent that from operating some express agreement must be
” shown: but in considering whether such an agreement existed we
” cannot lose sight of the general understanding.”

The claim that was presented by the diligent barrister Mr. Kennedy in
1862 was under an account stated. He had left his practice in Birmingham
and taken chambers in London in order to devote himself to and to assume
control of the legal affairs of the pertinacious Mrs. Swinfen. Due to his
exertions she retained possession of her estate. At the trial of the case
before Cockburn C.J. and a jury the summing-up began with this passage:

” You have been truly told by the defendants’ counsel that you cannot
” take into consideration the services which have been rendered. The
” only claim of the plaintiff is upon an account stated which can only
” be supported by an admission by the defendants of an existing debt.
” Whether, if you give your verdict for the plaintiff, it can be upheld, is
” a matter which it is not necessary to discuss today. My opinion on
” the law is adverse to the plaintiff. Whatever he did as attorney would
” fall to the ground. What he did was done as counsel: and it has
” been laid down by the highest authority that a barrister can maintain
” no action for his fees: they are of an honorary character. It is
” impossible to doubt the propriety and expediency of this rule. The
” question which you have to decide is not whether the contract on
” which the alleged account was stated was a legal contract, but whether
” the female defendant did in point of fact acknowledge the existence of
” this debt—whether there was a contract for the services before they
” were performed, and a subsequent acknowledgment of liability.”

Accepting the plaintiff’s testimony the jury returned a verdict in his favour
for a substantial sum. But a rule nisi was later obtained to enter a verdict
for the defendants and, after most elaborate arguments, it was made absolute
(see 13 C.B.N.S. 677). The judgment of the court was delivered by Erle C.J.
who said that ” a promise by a client to pay money to a counsel for his
” advocacy, whether made before, or during, or after the litigation has no
” binding effect; and furthermore that the relation of counsel and client
” renders the parties mutually incapable of making any contract of hiring
” and service concerning advocacy in litigation “. He added that in all the
records of the law from the earliest time ” there is no trace whatever either
” that an advocate has ever maintained a suit against his client for his fees
” in litigation, or a client against an advocate for breach of a contract to
” advocate”. He cited numerous authorities in support of holding that
” counsel cannot contract for his hire in litigation “. But the incapacity

was only one ” concerning litigation “. ” The incapacity of the advocate in
” litigation to make a contract of hiring affects the integrity and dignity of
” advocates and so is in close relation with the highest of human interests,
” viz. the administration of justice “. After a notable and indeed eloquent
passage describing the duties and responsibilities of an advocate the Chief
Justice said:

” If the law is that the advocate is incapable of contracting for hire
” to serve when he has undertaken an advocacy, his words and acts
” ought to be guided by a sense of duty, that is to say, duty to his
” client, binding him to exert every faculty and privilege and power in
” order that he may maintain that client’s right, together with duty to
” the Court and himself, binding him to guard against abuse of the
” powers and privileges intrusted to him, by a constant recourse to his
” own sense of right.”

The reasons for the rule which was there recognised may perhaps not have
been very clearly analysed or expounded, but if the rule was considered
to advance the due administration of justice, then it must have been thought
to be linked with considerations of the public interest and therefore of
public policy. In the judgment of the Privy Council in The Queen v. Doutre
9 A.C. 745, while it was accepted that when an English barrister is employed
he is by necessary implication employed upon the usual terms according to
which a barrister’s services are rendered, the Board were not prepared to
accept all the reasons for the decision in Kennedy v. Broun in the Judg-
ment of Erle C. J. and were of the opinion (see page 751) that the decision
could be supported by the usage and peculiar constitution of the English
bar without attempting to rest it upon general considerations of public
policy.

The rule was again recognized in the Court of Appeal in Le Brasseur v.
Oakley [1896] 2 Ch. 487 where it was firmly held that the Court could not
and should not lend its assistance to barristers to recover their fees: the
payment of such fees was only a matter of honour. To a similar effect was
the decision in 1880 in the Irish case of Robertson v. Macdonogh 6 L.R.
Irish 433 where it was held that a barrister and client were mutually incap-
able of entering into a binding contract of hiring. Again in Wells v. Wells
[1914] P.155 it was held that fees owing to a barrister are not legal debts
for the recovery of which a barrister may sue.

As I have indicated, learned Counsel for the Appellant did not find it
necessary to seek to assail the massive bulk of authority which, unless swept
away or unless it be regarded as outmoded, establishes the somewhat unique
rule that a barrister cannot sue for fees. As this rule has not been challenged

I do not propose to examine it. It has not been the target of any attack.
The submission of Counsel for the Appellant was that there is no sound
basis in law for any rule that an action alleging negligence against a barrister
does not lie and that any rulings to that effect have been founded upon
misapprehension or at least are no longer in accord with modern develop-
ments of or understanding of the law.

That it has been considered to be settled law that no action alleging
negligence against a barrister lies is amply illustrated by the circumstance
that there is no record of the success of any such action. Though statements
are found in some cases which suggest the possibility that some claim could
be brought against a barrister (see Brook v. Montague (in 1605) 3 Cro. Jac.
90, Bradish v. Gee (in 1754) Ambler 229 and Burness v. Morris (in 1849)

11 Dunlop 1257) there are clear expressions of opinion made by Judges
that no action alleging negligence could be brought. The allegation that
gave rise in 1791 to an action for negligence against a barrister in Fell v.
Brown Peake 131 was that the Defendant, a barrister, had so unskillfully
and negligently settled and signed a Bill filed by the Plaintiff in the Court
of Chancery that it was referred by the Lord Chancellor to the Master
for scandal and impertinence and that in the result the Plaintiff was ordered
to pay the costs of the reference. Lord Kenyon gave it as his opinion
that no action lay against the barrister for drawing a declaration full of
unnecessary matter. The action was the first and he ” hoped it would be

the last of its kind “. Lord Abinger gave a similar opinion in Perring v.
Rebutter (in 1842) 2 Moody and R. 429. An action had been brought
against Perring. He retained Rebutter (who was a special pleader) to
advise on the proper plea and defence. Perring complained that Rebutter
advised negligently with the result that he (Perring) failed in defending the
action brought against him. When he sued Rebutter Lord Abinger said
that such an action “was certainly not maintained against a barrister”
and that there was no difference in the case of a certified special pleader.
On that intimation there was a conference between Counsel and the case
was settled by withdrawing a juror.

In Purves v. Landell (in 1845) 12 Cl. and F.91 Lord Campbell said that
against the barrister in England and the advocate in Scotland no action
could be maintained though he said that an action could
be maintained against the attorney, the professional adviser or the
procurator if there was (what was then called) gross negligence. In 1876
an action was brought both against an advocate and a writer to the signet
in the case of Batchelor v. Pattison and Mackeray 3 Rettie 914. The Lord
President, in the course of his judgment, said (at page 918)—

” An advocate in undertaking the conduct of a cause in this Court
” enters into no contract with his client, but takes on himself an office
” in the performance of which he owes a duty, not to his client only,
” but also to the Court, to the members of his own profession,
” and to the public. From this it follows that he is not at liberty to
” decline, except in very special circumstances, to act for any litigant
” who applies for his advice and aid and that he is bound in any cause
” that comes into Court to take the retainer of the party who first
” applies to him. It follows, also, that he cannot demand or recover
” by action any remuneration for his services, though in practice he
” receives honoraria in consideration of these services. Another result
” is, that while the client may get rid of his counsel whenever he
” pleases, and employ another, it is by no means easy for a counsel to
” get rid of his client. On the other hand, the nature of the advocate’s
” office makes it clear that in the performance of his duty he must be
” entirely independent, and act according to his own discretion and
” judgment in the conduct of the cause for his client. His legal right
” is to conduct the cause without any regard to the wishes of his client,
” so long as his mandate is unrecalled, and what he does bona fide
” according to his own judgment will bind his client, and will not expose
” him to any action for what he has done, even if the client’s interests are
” thereby prejudiced.”

In the cases to which I have referred the legal basis for the opinions so
unhesitatingly expressed is not fully analysed or expounded. The remarkable
case of Swinfen v. Lord Chelmsford (in 1860) 5 H. & N. 890 was consider-
ably concerned with the question of the authority of counsel to settle an
action though the whole question of the legal liability of counsel came under
consideration. In previous proceedings the plaintiff had wished to establish
that an estate had by will been devised to her. Her then counsel (the defendant
in Swinfen v. Lord Chelmsford) both to her dismay and, as she asserted,
also contrary to her express instructions, settled the case on the basis that
the estate went to the heir at law subject to his paying an annuity (secured
on the estate) to her (the plaintiff) for her life. She firmly refused to acknow-
ledge the settlement. She successfully resisted all the legal proceedings by
which the heir-at-law sought to enforce the settlement. When he applied for
specific performance she succeeded in establishing that the settlement had
been without her authority. The issue which she had raised in her original
proceedings later came on for trial again: she was successful in her claim
that the estate had by will been devised to her. The various legal proceedings
which by her pertinacity gave her complete victory did, however, involve her
in trouble and expense. Accordingly, she sued her counsel. The case was tried
with a jury. Her declaration alleged that the defendant (who had been her
counsel) had settled her case (by withdrawing a juror) wrongfully and fraudu-
lently and without her authority and against her will and contrary to her

instructions and, accordingly, that he had failed and neglected to perform
his duty. One plea of the defendant was that he did not know that he had no
authority to settle and that he had settled in good faith and without fraud.
Another plea was that there had been no restriction on the exercise of his
discretion and that he had acted without fraud or negligence and in good
faith and in the exercise of the best of his judgment and in the honest exercise
of his discretion. In his direction to the jury Pollock C.B. said that all that the
law requires from a counsel in a cause is that he shall discharge his duty to
the best of his ability and that the defendant was not responsible if he
intended to act honestly and for the benefit of his client. On behalf of the
plaintiff. Pollock C.B. was asked to leave the question to the jury whether the
defendant entered into the compromise wilfully and without the authority
of his client but the learned Judge thought that that would not constitute a
cause of action. After the jury had found for the defendant on all the issues
a rule nisi for a new trial on the ground of misdirection was granted and
was argued before the Court of Exchequer. The rule was discharged. The
Court held that an advocate at the English bar, accepting a brief in the usual
way, undertakes a duty but does not enter into any contract or promise
either express or implied: he takes upon himself an office or duty in the
proper discharge of which not merely the client but the Court in which the
duty is to be performed, and the public at large, have an interest. The Court
held that the conduct and control of a cause are necessarily left to counsel.
They added:

” If a party desires to retain the power of directing counsel how the
” suit shall be conducted, he must agree with some counsel willing so to
” bind himself. A counsel is not subject to an action for calling or not
” calling a particular witness, or for putting or omitting to put a particu-
” lar question or for honestly taking a view of the case which may turn
” out to be quite erroneous. If he were so liable counsel would perform
” their duties under the peril of an action by every disappointed and
” angry client.”

They also held that ” no action will lie against counsel for any act honestly
” done in the conduct or management of the cause “.

It is to be observed that the Court accepted that counsel owed a duty:
the duty was one which was owed to the client and also to the Court and
also to the public. The Court might have been content to say that as counsel
is vested with a discretion as to how he will conduct a case he will have a
defence when sued if he asserts that he exercised his discretion honestly. But
the Court went further and laid it down that for any act honestly done in
the conduct and management of a cause no action will lie against counsel.
The basis of this would seem to be that as counsel owes a duty to the public
and to the Court as well as to his client, the public interest and the admini-
stration of justice require that he should not be subject to an action in respect
of such complaints as ” calling or not calling a particular witness or for
” putting or omitting to put a particular question or for honestly taking a
” view of the case which may turn out to be quite erroneous “. The question
now arises whether this view is correct and whether today justification for
it continues to exist.

The statement of the Court in Swinfen v. Lord Chelmsford that an
advocate takes upon himself a duty in the discharge of which the client and
also the court and also the public had an interest was a statement made in
reference to litigation. The context in which the words which I have quoted
were spoken was that of ” the conduct or management of the cause “. The
words were spoken in reference to an advocate at the English bar because
only such an advocate could have conducted the case in the court in which
the first cause of Swinfen v. Swinfen was tried. The reasoning of the decision,
if it is correct, would seem to me to apply to the advocate in litigation
whether he be either a barrister or a solicitor.

Although it was not argued on behalf of the Appellant in this case that a
barrister enters into a contractual arrangement, I see no reason to doubt that
when retained a banister owes a duty to exercise due and reasonable care
and skill. In this respect he is, in my opinion, in the same position as the
members of other professions. The duty is owed, quite irrespective of

contract, and quite irrespective of the receipt of any reward or honorarium.
It is owed when the work is undertaken which he is instructed to do.
Accordingly, in my view, there cannot be, and indeed there ought not to be,
any question of any one profession being in a special position, save, if at
all, in such limited way as the public interest demands.

By way of illustration of general principle it is helpful to refer to some
of the authorities which are in the books. The case of Lanphier v. Phipos in
1838, 8 C. & P.475 was a medical case. The plaintiffs were husband and
wife. The defendant was a surgeon and apothecary. He was employed by
the husband. He was employed by the husband to attend to the wife who had
suffered an injury to her right hand and wrist. An allegation was made in the
action of careless, negligent and unskilful treatment. In summing up to
the jury, Tindal C.J. said—

” Every person who enters into a learned profession undertakes to
” bring to the exercise of it a reasonable degree of care and skill. He
” does not undertake if he is an attorney that at all events you shall gain
” your case, nor does a surgeon undertake that he will perform a cure:
” nor does he undertake to use the highest possible degree of skill. There
” may be persons who have higher education and greater advantages
” than he has but he undertakes to bring a fair reasonable and com-
” petent degree of skill and you will say whether in this case the injury
” was occasioned by the want of such skill in the defendant. The question
” is whether this injury must be referred to the want of a proper degree
” of care and skill in the defendant or not. The action is not brought
” for any injury sustained by the husband but it is brought
” by the wife for the injury which she has sustained by the loss of the
” use of her hand. The husband must be joined in the action but the
” damages are to be given for the injury sustained by her.”

In Hart v. Frame, 6 Cl. & F. 193, there was an appeal against interlocutors
of the Court of Session in Scotland. Certain masters employed an attorney
to take proceedings against their apprentices for misconduct. The attorney
specifically proceeded on the section of the Statute which related to servants
and not to apprentices. It was held that there was such want of skill or
diligence as to render the attorney liable to repay to his clients the damages
and costs occasioned by his error. The Lord Chancellor (Lord Cottenham)
said: —

” Professional men possessed of a reasonable portion of information
” and skill according to the duties they undertake to perform and
” exercising what they so possess with reasonable care and diligence
” in the affairs of the employers certainly ought not to be held liable
” for errors in judgment whether in matters of law or discretion. Every
” case, therefore, ought to depend upon its own peculiar circumstances:
” and when an injury has been sustained which could not have arisen
” except from the want of such reasonable skill and diligence or the
” absence of the employment of either on the part of the attorney the
” law holds him liable. In undertaking the client’s business he under-
” takes for the existence and for the due employment of these qualities
” and receives the price of them. Such is the principle of the law
” of England and that of Scotland does not vary from it.”

The case of Donaldson v. Haldane (in 1840) 7 Cl. & F. 762, was a somewhat
hard one. The defendant, a writer to the signet, was the ordinary attorney
for a borrower. He acted in the matter of a particular loan for the lender
but he made no charge against the lender for his services. The security
he took was not sufficient. It was held that he was properly charged as an
attorney acting on the retainer and employment of the lender and was in
that character liable to an action for damages for the loss suffered through
the insufficiency of the security. After the death of the lender two of his
sisters applied to him to do what was necessary. The means taken to secure
the repayment of the loan on the continuation of it were insufficient. It
was held that as representing the interest of the deceased and on their own
account the sisters were entitled to compensation from the attorney. Lord
Brougham said—” his conduct in volunteering his services does incline one

” to think that the liability he incurred in point of law is somewhat hard
” upon him: but still I cannot doubt that he is liable.”

In the case of Rex v. Bateman in 1925, 94 L.J.K.B. 791, it was said in the
judgment of the court at page 794 in reference to the civil liability of a
medical man—

” If a person holds himself out as possessing special skill and knowledge
” and he is consulted, as possessing such skill and knowledge, by or
” on behalf of a patient, he owed a duty to the patient to use due caution
” in undertaking the treatment. If he accepts the responsibility and
” undertakes the treatment and the patient submits to his direction and
” treatment accordingly, he owes a duty to the patient to use diligence,
” care, knowledge, skill and caution in administering the treatment
” No contractual relation is necessary, nor is it necessary that the service
” be for reward.”

In line with the principles illustrated by such cases as the above (and by
such a case as Pippin v. Sheppard, 11 Price 400) were the observations of
Scrutton, L.J. in Everett v. Griffiths [1920] 3 K.B. 163 at page 193, and the
observations in your Lordships’ House in Banbury v. Bank of Montreal [1918]
A.C. 626 at pages 682 and 689, and in Hedley Byrne & Co. Ltd. v. Heller
& Partners Ltd. [1964] AC 465.

It follows from what I have said that, in my view, there is no sound legal
principle which can support or justify the broad and sweeping statements
that have in the past been made that barristers are in all circumstances
immune from liability. Doubtless it has often been thought that their inability
to sue for fees leads to that result. Some such idea may have been involved
in what Lindley, L.J. said (at page 494) in Le Brasseur v. Oakley [1896]
2 Ch. 487-

” But I think it is of the utmost importance that the Court should not
” assist barristers to recover their fees. If they do so the whole relation
” between a barrister and his professional client will be altered and a
” door will be opened which will lead to very important consequences
” as regards counsel. The inevitable result will be to do away with
” that which is the great protection of counsel against an action for
” negligence by his client.”

(See also the Irish case of Robertson v. Macdonogh [1880] 6 L.R. Irish 433.)

The immunity of barristers has been referred to in books of authority. In
Halsbury’s Laws of England (Third Edition) Volume 3, it is stated at
page 46:—

” The principle which prevents a barrister from suing the client for
” his fees i.e. the mutual incapacity of counsel and client to contract
” with reference to the services of counsel, also prevents the client from
” suing counsel.”

” If a barrister acts honestly in the discharge of his duty, he is not
” liable to an action by his client for negligence, or for want of skill,
” discretion or diligence in respect of any act done in the conduct of
” a cause, or in settling drafts, or in advising.”

To take another example, in Winfield on Torts (7th Edition) page 185, it is
said that:

” The reason for this exemption is that in theory his services are
” gratuitous, and although that, by itself, is not a sufficient ground for
” preventing a legal duty from arising in other circumstances, the rule
” with regard to the barrister is inveterate, whatever be its justification.”

That would seem to be a very fair summary of the situation as it has been
understood to be. But now that the matter has called for examination I cannot
think that the rule, though long accepted, ought to continue save to such
extent as sound and valid justification for it can be shown to exist. It may
well be, however, that down to the present time, having regard to the wide
statements that are to be found in the authorities, all concerned must be
deemed to have proceeded on the basis that barristers have been in all cases
immune from suit (see The Queen v. Doutre 9 A.C. 745 at page 752).

I pass, therefore, to consider whether so far as concerns what is said or
done in the conduct or management of a case in Court the public interest
requires that an advocate should have immunity. In the first place, it will be
helpful to examine the nature of the duty which is owed by an advocate. I
think that it must be true to say, as was said in Swinfen v. Lord Chelmsford,
that the duty undertaken by an advocate is one in which the client, the Court
and the public have an interest because the due and proper and orderly
administration of justice is a matter of vital public concern. The advocate
has a duty to assist in ensuring that the administration of justice is not
distorted or thwarted by dishonest or disreputable practices. To a certain
extent every advocate is an amicus curiae. In the Irish case of The Queen
v. O’Connell [1844] 7 Ir. L.R. it was said by Crampton, J. (at page 313) that
though an advocate for an individual is retained and remunerated for his
services ” yet he has a prior and perpetual retainer on behalf of truth and
” justice “. His duty to the client is to exercise a reasonable degree of care and
skill. In the nature of things that, in turn, involves that he must make
decisions which call for the exercise of personal judgment. He
must in the honest exercise of his discretion decide what questions to
put and what witnesses to call. It would seem to result from this that in
most cases it would be an effective answer to an allegation of negligence to
say that the course that had been followed in litigation was that which the
advocate in the honest exercise of his discretion had deemed it advisable
to follow. It is the discretion of the chosen advocate upon which the client
must rely. When a case is concluded it can often happen that in retrospect
there are cogitations as to whether if this or that additional question had been
put or if this or that question had not been put or if some further witness
had been called the result might have been different. In many cases it is
probable that the result would not have been different. In some cases it
might only be those who judicially determined the first case (the Judge or
members of a jury) who could really supply the answer. If in retrospect
it were thought that had a case been differently conducted the result would
possibly or probably have been different, it might be that the view would
be held that the advocate had honestly exercised his discretion but had
been guilty of certain errors of judgment not amounting to negligence. The
duty of the advocate is, however, not merely to act honestly: his duty also
is to exercise a reasonable degree of care and skill. In the case of such
advocates as can and do enter into contractual arrangements the duty arises
ex contractu but in other cases the duty arises out of and by reason of the
relationship between the advocate and the client who has sought his assistance.
Though in most cases, by reason of the special and distinctive features
of the work of advocates in which personal discretion is so much involved,
assertions of negligence could readily be repelled, a cause of action alleging
professional negligence could nevertheless always be framed. Is it, then,
desirable in the public interest, while rejecting the wide immunity which
has hitherto been proclaimed, to retain an immunity relating only to the
limited field of the conduct and management of a case in Court? Is it, as a
matter of public policy, expedient that actions which involve a searching
review almost amounting to a re-trial in different actions of previous actions or
cases already concluded should not be allowed? Is the administration of
justice (which is so much the concern of the community) better promoted
if such actions are not countenanced? If it is recognized that there could be
some cases where negligence (as opposed to errors of judgment) could be
established, is it nevertheless on a balance of desirabilities wise to disallow
the bringing of such cases? In my view, the answer to these questions
is that it is in the public interest that such actions should not be brought.
In this, as in other aspects of the present case, I find myself in general
accord with the judgment of Salmon, L.J.

It will be useful to consider some of the circumstances that would arise
if such actions were permitted. If someone has been tried on a criminal
charge and has been convicted it would not be of any purpose for him to
assert that his counsel had been unskilful unless he could prove that he
would have been acquitted had his counsel conducted the case with due care

and skill. He would have to prove that on a balance of probability. He
would, however, only have been convicted if the jury had been sure that his
guilt had been established. If he asserts that, had his counsel asked some
more questions than he did ask, the jury in the criminal case or the Magistrates
would have acquitted him, would he be entitled in his negligence action to
call as witnesses the members of the jury or the members of the Bench of
Magistrates who had convicted him? I have no doubt that it would be
against public policy to permit any such course. If there were a conviction
by a majority verdict of ten to two, could one of the ten be called to say that
had there been further questions put to some witness he would have agreed
with the two jurors? Again, that, in my view, would be procedure that
ought not to be permitted. If there were a jury in the civil action for
negligence they would have to decide whether, on the assumption that the
additional questions had been put, there probably would have been an
acquittal. Presumably they would have to review all the evidence that had
been given in the criminal case. They would either need to have a transcript
of it or they would have to hear the witnesses who had previously given
evidence. After a period of time the witnesses might not be available. The
transcript might not be obtainable. If obtainable it might relate to a trial
that had taken not days but weeks to try. But assuming that all the
necessary evidence was available and assuming that memories were not
dimmed by the passing of time, the civil jury would in effect be required to
be engaged in a re-trial of the criminal case. That would be highly undesir-
able. And supposing that after a criminal trial a person was convicted and
then appealed unsuccessfully against his conviction and later brought a civil
action against his counsel alleging negligence: if he succeeded, would any
procedure have to be devised to consider whether or not it would be
desirable to set aside the conviction. The conviction (as in the present
case) might have taken place years before. Any sentence of imprisonment
imposed might have been served (as in the present case) long before. If
in the civil action the suggestion was made that, had there been further
evidence called or further questions put in the criminal case, there might
have been a disagreement rather than a conviction, this only serves to demon-
strate how difficult it would be for a court to decide on a balance of
probabilities what the jury in the criminal case would have done had there
been different material before them. A trial upon a trial would raise
speculation upon speculation.

It may be said that these considerations merely point to the difficulties that
would lie in the way of success by a convicted person who brought an
action. (The difficulties would be greater in the case of a private prosecutor
who, being disappointed by the acquittal of someone who had been prose-
cuted, brought an action for negligence against prosecuting counsel. Apart
from the difficulties of proving damage, it would surely be highly undesirable
that an issue whether someone was guilty of an offence should be tried in
proceedings to which he was not a party). But, in my view, the considerations
to which I have referred are of deeper and more fundamental significance.
The procedure regulating criminal trials and the machinery for appeals in
criminal cases is part of the structure of the law. Much of it is statutory.
In practice the Judges who preside at criminal trials do what they can
to ensure that the case of an accused person, whether he is represented or
whether he is not, is fairly and adequately presented. If there is an appeal
there are rules which regulate the approach of the appeal court and which
apply to such matters as to whether evidence will be heard on appeal or
whether a new trial will be ordered. In practice it is unlikely that, owing to
some want of care, counsel would refrain from calling at the trial a witness
who was thought to be dependable and whose testimony would certainly
secure an acquittal. It is to be remembered also that an accused person
is at liberty to give evidence on his own behalf. A system which is devised
so as to provide adequate and reasonable safeguards against the conviction
of innocent persons and to provide for appeals must nevertheless aim at some
measure of finality. If the system is found not to be adequate then it can
be altered and modified: it can be kept continually under review. I cannot
think, however, that it would be in the public interest to permit a sort of

unseemly excrescence upon the legal system whereby someone who has been
convicted and has, without success, exhausted all the procedures for appeal
open to him should seek to establish his innocence (and to get damages)
by asserting that he would not have been convicted at all but for the fact
that his advocate failed to exercise due care and skill.

Many of these considerations have parallel validity in regard to complaints
of lack of care and skill in a civil action. It is true that courts must not
avoid reaching decisions merely because there are difficulties involved in
reaching them. It may not be impossible in certain circumstances for one
civil court to decide that an earlier case in a civil court (one, for example,
tried by a Judge alone) would have had a different result had some different
course been pursued, though in most cases there would be likely to be
various difficulties in the way of reaching such a conclusion. But it would,
in my view, be undesirable in the interests of the fair and efficient administra-
tion of justice to tolerate a system under which, as a sort of bye-product after
the trial of an action and after any appeal or appeals, there were litigation
upon litigation with the possibility of a recurring chain-like course of liti-
gation. 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. While, of course, any refusal to depart at the behest of the
client from accepted standards of propriety and honest advocacy would not
be held to be negligence, yet if non-success in an action might be blamed
upon the advocate he would often be induced, as a matter of caution, to
embark on a line of questions or to call a witness or witnesses, though his
own personal unfettered judgment would have led him to consider such a
course to be unwise. 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
of a case. Such instances may unhappily occur in the future. It becomes,
therefore, a matter of balancing 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 disadvantages. They do so over-
whelmingly in respect of criminal cases and considerably so in respect of
civil cases. It has always been the policy of the law to ensure that trials
are conducted without avoidable strains and tensions of alarm and fear.
If a witness, whose testimony involves uttering words defamatory of others,
was under any fear of having an action brought against him on account
of what he said in Court, the due administration of justice would be impos-
sible. In order that the protection of a witness may be complete and so
that it is not circumvented by the making of an allegation that the testimony
was false or was perjured or was given maliciously, the immunity from suit
is absolute. No action lies in respect of evidence given by witnesses in
the course of judicial proceedings, however false or malcious it may be,
though naturally everyone is bound by the criminal law and if perjury can be
proved a criminal prosecution may result. The immunity from civil suit is
founded upon reasons of public policy and, as was pointed out in Marrinan
v. Vibart [1963] 1Q.B. 528, 536, the protection which the law affords to wit-
nesses is not given as a benefit for them but is given for a higher interest, i.e.,
that of the advancement of public justice. So also the immunity from civil
suit in respect of words spoken in court applies to the parties to a case: it
applies to Judges: it applies to advocates. In Munster v. Lamb (1883) 11
Q.B.D. 588 the Plaintiff brought an action for defamation against a solicitor
in respect of words he had spoken as an advocate. The action failed and an
appeal from the judgment of Mathew J. was dismissed. In his judgment
Mathew J. said—

” It may be inconvenient to individuals that advocates should be at
” liberty to abuse their privilege of free speech subject only to animad-
” version or punishment from the presiding Judge. But it would be a

” far greater inconvenience to suitors if advocates were embarrassed or
” enfeebled in endeavouring to perform their duty by the fear of
” subsequent litigation.”

In his judgment in the Court of Appeal Brett M.R. (at page 603) said:-
” A counsel’s position is one of the utmost difficulty. He is not to
” speak of that which he knows; he is not called upon to consider,
” whether the facts with which he is dealing are true or false. What he
” has to do, is to argue as best he can. without degrading himself, in
” order to maintain the proposition which will carry with it either the
” protection or the remedy which he desires for his client. If amidst
” the difficulties of his position he were to be called upon during the
” heat of his argument to consider whether what he says is true or false,
” whether what he says is relevant or irrelevant, he would have his mind
” so embarrassed that he could not do the duty which he is called upon
” to perform. For, more than a judge, infinitely more than a witness, he
” wants protection on the ground of benefit to the public.”
In Watson v. McEwan [1905] AC 480 it was held that the privilege which
protects a witness from an action of slander in respect of his evidence in
Court also protects him against the consequences of statements made to the
client and to the solicitor in preparing the proof for trial. Lord Halsbury
said that the immunity of a witness from responsibility in an action after
evidence has been given by him in a Court of Justice was too well estab-
lished to be shaken. In that case it was clearly recognised (see page 487)
that it is ” public policy which renders the protection of witnesses neces-
sary “. It must be recognised that the relationship between the advocate
and the client differs from relationship between the client and an adverse
witness or between the client and a juror but it is desirable in the public
interest that a case in court should be regarded by all concerned as being
a solemn occasion when the utmost endeavour is being made to arrive once
and for all at the truth and to achieve a fair and just result. The atmosphere
must be created in which every person concerned is given full opportunity
to play his part. There can be procedure and machinery for appeals and
the effectiveness of appeal procedure can be kept under review, but the
attainment of finality must be an aim of any legal system. In the nature of
things it would seem to be undesirable if, when the litigation
is over and appeals have been heard there can be an inquest upon it all,
or a further re-opening of it all. in the form of an action against the advocate
alleging that it was his fault that the case had not been differently decided.
The successful party in the litigation would not be involved in or be a
party to the later action, yet in that action the assertion would be made
that he had wrongly gained the victory. If a petitioner for divorce failed
to obtain a decree and in an action against his advocate claimed that he
would have succeeded but for some fault on the advocate’s part, there
might be enquiry as to whether the respondent to the petition had been guilty
of a matrimonial offence: the enquiry would be taking place in proceedings
to which the respondent was not a party. Such procedure could not be
desirable or could not on balance be in the public interest. Though the
very nature of advocacy is such that there would be manifest difficulties in
proving that but for some faulty conduct or management of a case in Court
there would have been a different result, it is not this circumstance which
warrants an immunity from suit. It is warranted and only warranted by the
various considerations of the public interest to which I have referred.
I would dismiss the appeal.

Lord Pearce

MY LORDS,

The issue in this case is whether the action should be allowed to continue
or whether it should at this stage be dismissed. Two separate underlying
problems have been raised. Is counsel liable to be sued for negligence under
the law as it now stands? And, if not, should the law be altered so that in
future he becomes liable?

Mr. Rondel was charged at the Old Bailey with causing grievous bodily
harm to Manning with intent. He obtained the services of the Respondent
on a dock brief (i.e. by payment of £2 4s. 6d.). The Respondent then
defended him. He was convicted. The only defence suggested by Mr.
Rondel either then or later was self defence. There was indeed no other
possible defence. It is undisputed that he seriously injured Manning. He
said to the Judge in chambers: ” I tore his hand in half and bit part of his
” ear off”. He himself did not suffer a scratch. In the Court of Appeal,
apparently, he exulted in his ability to inflict such injuries without the aid
of a weapon and resented the allegation that he must have used a knife,
which he considered a reflection on his prowess. When asked by the Judge
in chambers whether he was suggesting that he would have been acquitted
if his counsel had conducted his case properly, he said ” No “. Apparently
his complaint against his counsel is that he failed to reveal and prove in
cross-examination of prosecution witnesses and by demonstration that
Manning’s wounds were not caused by a knife, and failed by cross-
examination of the police or by calling Rachman (the well known slum
landlord) and Nash to prove that Mr. Rondel was not in the habit of using
a knife (a piece of evidence whose admissibility I would doubt) and that
Mr. Rondel was in the employ of Rachman and was on the premises in
that capacity.

There was also a further complaint described in his amended statement
of claim in these words:

(3) ” Allowing my witness Miss Hogan to be unjustly discredited and
” ridiculed arising out of the defendant’s failure to neutralise the
” prosecution counsel’s relatively shattering ‘ revelation ‘ that Miss Hogan
” could not see into the passage-way from her bedroom window and
” letting this irrelevant nonsense over swamp her vital evidence that
” she saw four West Indians after some heated discussion follow me
” into the passage. And not saw them and me actually in the passage.”

It is always inconvenient to a party when his witness is shown in cross-
examination to have been saying that she saw things which it was physically
impossible for her to see. There is no known prescription by which counsel
can ” neutralise ” such a ” revelation ” or stop a jury from drawing reason-
able inferences from it. Nor, in the interests of justice, is it very desirable
that such a magic should exist.

If one uses a little practical common sense in approaching the case, one
or two things are obvious. It was, on the face of it, a difficult and, one
might almost say, a fairly hopeless case. Mr. Rondel had inflicted severe
injuries on a man and emerged scatheless. The only real hope was that
Mr. Rondel could by obvious honesty in the way he gave his evidence
persuade the jury that he was really being beset and that unfortunately in self
defence he did more injury that he intended. If he appeared so obviously
honest and said (as no doubt he did say) that he used his teeth and not a
knife the jury would probably accept that. But that was not the important
point of the case. A close cross-examination on whether it was his teeth
or a knife might well give the impression that he was seeking to justify that
barbarous behaviour and thus antagonise a jury and make them less receptive
of Mr. Rondel’s story as a whole. Evidence that he was an accredited
employee of Rackman might also have an alienating effect. And if Rackman
had been called, a cross-examination of him by the prosecution might have
had a very adverse effect. All these things are difficult matters of speculation.
Hindsight is as unreliable a guide to them as foresight. When counsel wishes
on reflection at the end of a case that he had asked a question or called a
witness or (about equally often) that he had not asked that question or called
that witness, it may well be that the thing, which he now wishes otherwise,
helped rather than hindered his case in the minds of the jury, if the truth
could be known, which it cannot.

One of an advocate’s difficult tasks is to persuade his client that many of
the questions which he wishes counsel to ask may quite possibly injure
his case by the answers they evoke. Cross-examination cannot in general shake

a really careful, honest witness; it merely makes his carefulness and honesty
more obvious and gives him an opportunity of driving in the nails harder,
or, it may be, of driving in more nails. One of the merits of great advocates
has often been that they have asked in cross-examination only one question to
every ten that a less good advocate would have asked. And where ten possible
points were available they would often ruthlessly select the best, sacrifice
nine, and thereby win on the tenth. Lesser advocates, being more oppressed
by a desire to please their clients so far as it is possible and consistent with
a proper conduct of the case, may select more points and thereby slightly
impair the force of their advocacy. A judge appreciates this compromise and
will allow them some sympathetic leeway, since he, too, is most anxious
that the clients should be satisfied. But if a barrister was liable to account
in respect of points, or evidence, or questions which he discarded, he would
obviously be inclined to take every point, to ask every question, and to call
every witness. Nor, in that event, could a judge fairly complain of this.

Even assuming that Mr. Rondel’s account of the matter be true, there
seems to me no substance in his complaint. Moreover he has chosen to let
nearly six years pass before he put it forward and it is now too late to put
any real reliance on the recollections of anybody concerned. With every day
that passes the memory becomes fainter, and the imagination more active—
a human truism of which one finds endless examples in accident cases.

The judge gave Mr. Rondel an opportunity to amend the statement of claim
(which he found almost unintelligible) and an amended statement of claim
was put forward. In that Mr. Rondel attempted to insert an allegation that
Mr. Worsley was ” fraudulent” in accepting the dock brief, a statement for
which he gave no justification whatever. The amended statement of claim
was struck out. Mr. Rondel stood by his amended statement of claim and did
not obtain leave to amend it further. The action was dismissed.

By the time the case came to the Court of Appeal Mr. Rondel had had
legal advice and produced a re-amended statement of claim which now will
hold water as a legal document, whether or not there is any substance of
truth behind it. That document shows that, contrary to what Mr. Rondel
had previously maintained, he is now seeking to say that but for his counsel’s
negligence he would never have been convicted at all. It is admittedly a
matter of discretion whether, when a pleading is struck out, the Court will
give leave to amend. Where there appears to be good faith and a genuine
case the Court will allow extensive amendments almost up to the twelfth
hour in order that the substance of a matter may be fairly tried. But when
a party changes his story to meet difficulties, that fact is one of the matters
to be taken into account.

In Lawrence v. Norreys 39 CD. 213 at 237—a case which was struck
out under the inherent jurisdiction—Fry, L.J. said :

” Then in the next place we have the history of these pleadings. We
” have the evolution of the plaintiff’s claim in its struggle for existence,
” and we find it gradually growing up and developing as the difficulties
” are pointed out by the judges of the successive courts before which it
” comes. The impression produced on my mind is that we have here
” the evolution of a myth, and not a gradual unfolding of real facts.”

The majority of the Court of Appeal (since the learned Master of the Rolls
did not deal expressly with the point) held that no leave should be given to
put in a re-amended statement of claim and that the action should therefore
be dismissed. Salmon, L.J. said:

” I agree with Danckwerts, L.J. that it would be most unjust at this
” stage to allow this re-amended statement of claim to be delivered some
” seven-and-a-half years after the plaintiff’s claim is alleged to have
” arisen in an action which is clearly as devoid of merit as it is of any
” prospect of success.”

There was ample material on which that decision could be made in the
exercise of discretion. Moreover, it was plainly right.

The history of this case has, in its general lines, followed a pattern
which is not unfamiliar. Even in your Lordships’ House many hours are
spent each year (and in the Court of Appeal the numbers are naturally larger)
in listening to wholly unbalanced attempts to re-open, without justification,
a case which a party has lost and which, by brooding over it, he can no
longer see in an objective light. Disgruntled by a decision, he reflects on
various side issues (often quite irrelevant or at least not matters of decisive
importance) of which he now considers that the judge failed to take any
account or any sufficient account. Two frequent symptoms of such cases are
that they are brought forward years after the event and that the strength of the
complaint increases as the years roll by. In the present case one sees not
only the first symptom in that the writ was issued nearly six years after
the event, but also the second symptom in that having after six years con-
sidered that he would not have been acquitted even if his counsel had
performed his task well, he now purports to change his mind and after
seven and a half years seeks to say that he would have been acquitted.
Another frequent symptom of such cases is that a plaintiff seeks to give
additional momentum to his complaints by throwing in charges of ” fraud ”
and ” conspiracy “. It is interesting to note that in the present case that
symptom also occurs. When the first statement of claim was struck out,
Mr. Rondel sought in an amended statement of claim to embellish his attack
by alleging that Mr. Worsley was “fraudulent” in allowing himself to be
selected for a dock brief.

The reason, however, why so unmeritorious and hopeless a case has been
allowed a hearing in this House was that it raised questions of general
importance. On these your Lordships have had the advantage of a
thorough, fair and lucid exposition by counsel on both sides.

The first question is whether, under the present law, counsel is liable for
negligence.

The gradual evolution of the duties and liabilities of those concerned in
the legal process over the centuries is obscure. There is no case in which
a barrister has ever been held liable for negligence. But there is clear
and binding authority that barristers were not liable in 1791. In Fell v.
Brown (1791 Peake 131 ; 170 E.R. 104) Lord Kenyon firmly ruled that no
action would lie against counsel for negligence. His Lordship added that
he believed this action was the first, and he hoped it would be the last
of the kind. Thomas Erskine for the plaintiff was asserting in his opening
to the jury that he could, on the facts, prove gross negligence (crassa
negligentia) but on Lord Kenyon’s ruling he had to accept a non-suit and
apparently there was no appeal. Since Erskine was not a man who would
lightly take no for an answer, one may assume that his contention did not
suffer from lack of argument.

In 1842 Lord Abinger, C.B., in the case of Perring v. Rebutter (2 Moody
and Robinson 429) held that an action for negligence would not lie against
a certificated special pleader, and said :

” Such an action was certainly not maintainable against a barrister,
” and in his opinion there was no distinction between the case of a
” barrister and that of a certificated special pleader.”

In Scotland the law was similar to that in England. In 1845 in Purves v
Landell (12 Cl. & Fin. 91, at 103) Lord Campbell said:

” Against the barrister in England and the advocate in Scotland
” luckily no action can be maintained.”

In Ireland in Mulligan v. McDonagh, Q.C. (1860 Irish Jurist 101)
Pigott. C.B., giving the judgment of the full Court, said:

” This is an action brought against a barrister for neglect of duty.
” Such an action cannot be maintained, as the points raised have been
” abundantly ruled, we have only to follow the decisions already made
” on the subject.”

In 1860 the position of counsel was discussed at length in the case of
Swinfen v. Chelmsford (5 H. & N. 890; 157 E.R. 1436). There was a very
full argument and a careful citation of the various early dicta and relevant
authorities including those relating to gratuitous acts. It was held that counsel
was immune from suits for negligence and could not, in the absence of
dishonesty, be sued in respect of his conduct of a case. This view was not
based on his inability to sue but on public policy and the fact that in his
management of a case he was in a different position from other professional
men. The unanimous opinion of the Court, consisting of Pollack, C.B.,
Martin, Bramwell, Channell and Watson, B.B., was (at 921):

” A counsel is not subject to an action for calling or not calling a
” particular witness, or for putting or omitting to put a particular
” question, or for honestly taking a view of the case which may turn out
” to be quite erroneous. If he were so liable, counsel would perform
” their duties under the peril of an action by every disappointed and
” angry client.”

And later (at 923):

” no action will lie against counsel for any act honestly done in the
” conduct or management of the cause.”

In their view (at 920):

” A barrister is to be considered, not as making a contract with his
” client but as taking on himself an office or duty, in the proper discharge
” of which not merely the client but the Court in which the duty is to
” be performed, and the public at large, have an interest.”

In 1876 in Scotland the Court of Session (Bachelor v. Pattison 3 R. 914)
once again held that a claim for negligence would not lie against an advocate.
The Lord President (at 918) there said:

” An advocate in undertaking the conduct of a cause in this Court
” enters into no contract with his client, but takes on himself an office
” in the performance of which he owes a duty, not to his client only,
” but also to the Court, to the members of his own profession, and to
” the public. From this it follows that he is not at liberty to decline,
” except in very special circumstances, to act for any litigant who
” applies for his advice and aid, and that he is bound in any cause that
” comes into Court to take the retainer of the party who first applies to
” him. It follows, also, that he cannot demand or recover by action
” any remuneration for his services, though in practice he receives
” honoraria in consideration of these services. Another result is that
” while the client may get rid of his counsel whenever he pleases, and
” employ another, it is by no means easy for a counsel to get rid of
” his client. On the other hand the nature of the advocate’s office makes
” it clear that in the performance of his duty he must be entirely
” independent, and act according to his own discretion and judgment
” in the conduct of the cause for his client. His legal right is to conduct
” the cause without any regard to the wishes of his client so long as
” his mandate is unrecalled and what he does bona fide according to his
” own judgment will bind his client and will not expose him to any
” action for what he has done, even if the client’s interests are thereby
” prejudiced. These legal powers of counsel are seldom, if ever,
” exercised to the full extent, because counsel are restrained by
” consideration of propriety and expediency from doing so. But in such
” a case as this, it is necessary to have in view what is the full extent
” of their legal powers.”

Thus the Courts have clearly accepted the principle that owing to the
particular part which he plays in the judicial process counsel cannot be sued
for negligence in his conduct of a case. There were a few dicta in earlier
times which appear to indicate a contrary view. These were all collected with
great industry by Mr. Kennedy in 1863 in the case of Kennedy v. Broun (143
E.R. 268) which was concerned with counsel’s right to sue for fees. But as
Erle, C.J. pointed out in giving the judgment of the Court (at page 730) those

dicta ” are all considered and overruled in the action of Swinfen against Lord
” Chelmsford”. And (at page 731) “they are mere remarks in the course
” of an argument and not adjudications ; and they were expressly overruled
” as before mentioned.”

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 Hedley
Byrne has held that work may impose a liability for negligence even thougty
a defendant had no contract 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.

The inability of a barrister to sue for fees is deep rooted in the law. It
was fully investigated in Kennedy v. Broun (Supra). The meticulous argu-
ment of Mr. Kennedy went back in history to Roman times. Erle, C.J.
(with whom were Williams, Byles and Keating JJ.) said at page 727:

” We consider that a promise by a client to pay money to a counsel
” for his advocacy whether made before or during or after the litigation
” has no binding effect; and furthermore, that the relation of counsel
” and client renders the parties mutually incapable of making any
” contract of hiring and service concerning advocacy in litigation. For
” authority in support of these propositions we place reliance on :the
” fact that in all the records of the law, from the earliest time till now,
” there is no trace whatever either that an advocate has ever maintained
” a suit against his client for his fees in litigation or a client against an
” advocate for breach of a contract to advocate ; and as the number
” of precedents has been immense, the force of this negative fact is
” proportionately great.”

After considering relevant authorities he said that they established the
proposition that—

” the relation of counsel and client in litigation creates an incapacity to
” contract for hiring and service as an advocate. If the authorities were
” doubtful and it was necessary to resort to principle, the same
” proposition appears to us to be founded on good reason.”

He then proceeded to point out the peculiar relationship in which an
advocate stood and founds his reasoning on grounds which are clearly those
of public policy. Inter alia he said:

” The law trusts him with a privilege in respect of liberty of speech
” which is in practice bounded only by his sense of duty ; and he may
” have to speak on subjects concerning the deepest interests of social
” life, and the innermost feelings of the human soul. The law also trusts
” him with a power of insisting on answers to the most painful question-
” ing; and this power again, is in practice only controlled by his own
” view of the interests of truth. It is of the last importance that the
” sense of duty should be in active energy proportioned to the magnitude
” of those interests. If the law is, that the advocate is incapable of
” contracting for hire to serve when he has undertaken an advocacy.
” his words and acts ought to be guided by a sense of duty, that is to
” say, duty to his client, binding him to exert every faculty and privilege
” and power in order that he may maintain that client’s right, together
” with the duty to the Court and himself, binding him to guard against
” abuse of the powers and privileges entrusted to him by a constant
” recourse to his own sense of right.”

It may be that the Court was putting the matter too high in some of the
reasons which it gave for deciding that there was an absolute incapacity to
contract (see The Queen v. Doutre 9 A.C. 745). But the long line of
decisions that a barrister cannot sue for his fees, whether directly or by oblique
methods such as proof in bankruptcy (even in a case where a bankrupt
solicitor had actually received the fees to pay counsel; re Sandiford [1935]
1 Ch. 681), is consistent. And, in my opinion, it is firmly based on public
policy.

Nearly fifty years before Kennedy v. Broun, Best, J. In 1819 in Morris
v. Hunt 1 Chitty 544 at 550 had used arguments based on public
policy when dealing with an argument that as the plaintiff was not liable
to be sued for his counsel’s fees, the unsuccessful defendant should not
have to pay them on taxation:

” Nothing, he said, can be more reasonable than that counsel should

” be rendered independent of the event of the cause, in order that no
” temptation may induce them to endeavour to get a verdict, which in
” their consciences they think they are not entitled to have. Counsel
” should be rendered as independent as the judge or the jury who try
” the cause when called upon to do their duty.”

Such thoughts as these, based upon public policy, plainly underlay both
the inability to sue and the inability to be sued. It is clear that one did not
spring from the other. They both sprang independently from similar public
considerations.

It is argued that Lindley, L.J. in re le Brasseur and Oakley [1896] 2 Ch.
487 (which affirmed the view in Kennedy v. Broun that a barrister was
unable to contract) took the view that the immunity was dependent on the
inability to sue, when he said, purely obiter (at 494):

” But I think it is of the utmost importance that the Court should not
” assist barristers to recover their fees. If they do so, the whole relation
” between a barrister and his professional client will be altered, and
” the door will be opened which will lead to very important consequences
” as regards counsel. The inevitable result will be to do away with
” that which is the great protection of counsel against an action for
” negligence by his client.”

I think he was meaning no more than that if the Court were to alter the
independent position of counsel with regard to fees (a suggestion which, he
thought, would be wrong) it would lead also to its altering his independent
position with regard to suits for negligence (which also he thought would be
wrong).

In my opinion, two considerations, apart from the language used in the
cases, tend to confirm the view that immunity did not arise merely out of
the inability to sue, but independently of it though from the same source of
public policy. In Scotland the doctrine of consideration does not apply, yet
the Scottish judges have been in no doubt that there was an immunity.
And Lord Kenyon, who firmly held that barristers could not be sued, was also
the judge who held in Wilkinson v. Coverdale (1 Esp. 75) that a gratuitous
act or omission could found a liability in damages for economic injury by
negligence—a view of the law to which in the case of Medley Byrne [1964]
A.C. 465 it returned after its recession in 1893 in le Lievre v. Gould (1893)
1 Q.B. 491 based on an erroneous view of Deny v. Peek 14 A.C. 337.

When the law on grounds of public policy has excluded the liability of a
barrister to be sued, was it saying that there was no right in a plaintiff,
or was it saying that there was a right but that the Courts would not as a
matter of policy enforce it by action, as, for instance, it has said in the case of a
wagering contract? I think that the terms of the various judgments make
it clear that the former was the basis of the Courts’ decisions.

To what extent have the opinions in Hedley Byrne affected the position?
Those opinions were dealing in the main with situations in the nature of
contract where but for the absence of consideration 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 circum-
stances, however, in which the law will infer an assumption 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 preclude the
establishment of such a relationship. In the present case also it is clear from
the circumstances that there was no such assumption of liability.

In the first place, the law having on grounds of public policy deliberately
excluded an assumption of liability from the relationship of barrister and
client, could not consistently impose it under a different guise or by a
different route. It was excluded not as a matter of defect in procedure
(i.e. by the absence of a contract) but as a matter of substantive policy. One
may take a rather distant analogy. The law has decided that an infant, though
liable in tort, shall not be liable on contractual matters which are to his
detriment. It is plain, I think, that in a matter on which contractually
an infant would not be held liable, he could not be made liable, on &
side-wind, by the principle in Hedley Byrne’s case.

Secondly, the existence of this established principle or usage of a
barrister’s immunity would operate as an effective disclaimer no less than the
disclaimer of the Bank in Hedley Byrne’s case. Unless and until that principle
or usage is altered, it would be fictitious for the law to infer an assumption
of responsibility that is quite contrary to the clear understanding of the
parties.

Thirdly, a barrister is bound to accept a brief, and therefore one cannot
infer from his mere acceptance a voluntary assumption of liability.

Moreover, there is the point that since Lord Kenyon held in Wilkinson
v. Coverdale (supra) that there could be a liability in respect of the breach
of a gratuitous undertaking which resulted in economic loss, he viewed the
law somewhat on Hedley Byrne lines, and his ruling in Fell v. Brown (supra)
that a barrister could not be sued would therefore be equally applicable bofh
before and after the decision in Hedley Byrne.

It is erroneous to suppose that it is Hedley Byrne which has, for the first
time since le Lievre v. Gould (supra), laid down that there may be gratuitous
responsibility in negligence resulting in purely economic damage. Hedley
Byrne, it is true, broadened the approach to the problem. But the argument
in the present case, so far as it is based on the principle in Hedley Byrne that
there may be liability for gratuitous advice, could with equal force have been
advanced at any time in the last fifty years under the case of Nocton v.
Ashburton [1914] A.C. 932 where a solicitor was held liable in negligence
to Lord Ashburton although the solicitor was not employed by him but by
another party. So, too, it could, I think, have been advanced at any time
from the late 18th century (Wilkinson v. Coverdale (supra)) until the law
became cramped by le Lievre v. Gould (supra) in 1893 or possibly by Deny
v. Peek (supra) in 1889. Yet the law during all that time has consistently
held that a barrister cannot be sued for negligence.

The law has not differentiated between the liability of a barrister in litiga-
tion and in his other non-litigious work as a barrister. In Mostyn’s case 5 Ch.
App. 487 the Court expressly affirmed Kennedy v. Brown (supra) in respect
of non-litigious fees. And it is also clear that the various rulings with
regard to the immunity of a barrister from liability for negligence 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 hundred years (and
perhaps considerably more) a barrister cannot be sued for negligence in
respect of his work as a barrister.

The position with regard to a solicitor is different. No doubt when the law
was evolved in regard to his responsibility the solicitor was not regarded as
the advocate who stood between the client and the judge. In the particular
pattern that our legal system evolved that function normally rested on
counsel. The solicitor’s main function was not litigation. And when he
was engaged in litigation he was primarily concerned (under contract) in
employing and instructing counsel, carrying out his advice and organising
the case behind the lines, e.g. in obtaining the evidence which counsel needed,
in taking proofs from witnesses, securing their attendance and the like. In
respect of these functions it was assumed and held that he was liable in
negligence on his contract

An attorney was held liable for failing to instruct counsel properly or
to attend and have witnesses available when a case was called on. and he
was made to pay the costs of the resulting adjournment (Hawkins v.
Harwood (1849) 154 E.R. 1312). He has been held liable for failing to

examine a witness before trial and had to pay 40/- nominal damages (Hatch
v. Lewis (1879) 175 E.R. 1145). He has been held liable for allowing a
case to be called on without ascertaining that a necessary witness was avail-
able (Reece v. Rigby (1821) 106 E.R. 912) and for employing as expert
witness a drunken surveyor without troubling to make sure that he had taken
proper measurements (Mercer v. King 175 E.R. 822). And it has been held
an answer to an attorney’s claim for fees that he erroneously told the parties
that they need not attend because it would be adjourned (Montrioux v.
Jefferies (1825) 172 E.R. 51).

All these are matters in which he was in breach of his contract with his
client in the organisation of the case for presentation to the Court.

In Ferguson v. Lewis (1874) 14 L.J. at the Mayor’s Court a solicitor was
held liable for breach of contract (but not gross negligence) in failing to
appear as an advocate at a magistrates’ court, as he had agreed to do, and
he had to pay five guineas damages in addition to the two guineas which he
had received as his fee. His real defence appears to have been that even
Demosthenes could not have secured the acquittal of his client. He did also
lay claim to an advocate’s immunity, but this contention in the absence of
any precedent was rejected. Nor was it a very satisfactory case for such
a contention in that he never did any advocacy but merely in breach of his
contract failed to come to Court.

There has been cited to us a case in which a solicitor’s negligence in
advocacy has been held to disentitle him to sue for his bill of costs in the
whole matter and not merely for the fees relating to the attendance which
he mishandled (Stokes v. Trumper 1855 69 E.R. 766). On an examination
of witnesses on commission when intending to cross-examine by interroga-
tories settled by counsel he negligently examined in chief certain witnesses
whereby the case was lost. I find the report far from clear as to exactly
what happened. But there is no trace in it that the question of the immunity
of an advocate was ever raised.

In Munster v. Lamb ((1883) 11 Q.B.D. 588) however the matter clearly
came up in respect of a solicitor’s protection as an advocate in respect of
slander. There it was plainly assumed in his favour that he was entitled to
the same protection as counsel when acting in Court as an advocate. It was
argued on his behalf that though his conduct was improper ” his words were
” protected from being made the subject of an action by reason of his
” privilege as an advocate ” (at 594). Mathew J. then went on to consider
cases dealing with the position of a judge and witnesses and counsel, clearly
equating the solicitor advocate to counsel. In the Court of Appeal Brett M.R.
(at page 599) said :

” This action is brought against a solicitor for words spoken by him
” before a court of justice whilst he was acting as the advocate for a
” person charged in that court with an offence against the law.”

And (at page 600):

” I cannot find that there has been a decision of a Court of law with
” reference to such facts as are now before us, that is with regard to a
” person acting in the capacity of counsel; but there have been decisions
” on analogous facts; and if we can find out what principle was applied
” in these decisions upon the analogous facts, we must consider how far
” it governs the case before us.”

The chief point of the case was whether the advocate’s immunity was a
limited or a complete immunity covering all remarks whether bona fide
or malicious, relevant or irrelevant. Brett M.R. decided that it was the
latter, basing all his reasoning on the assumption that the solicitor
advocate had the same protection as counsel. He gave as his reasons for
the decision (at page 603):

” A counsel’s position is one of the utmost difficulty. He is not to
” speak of that which he knows ; he is not called on to consider whether
” the facts with which he is dealing are true or false. What he has to
” do, is to argue as best he can, without degrading himself, in order to
” maintain the proposition which will carry with it either the protection

” or the remedy which he desires for his client. If admist the difficulties
” of his position he were to be called upon during the heat of his argu-
” meat to consider whether what he says is true or false, whether what
” he says is relevant or irrelevant, he would have his mind so em-
” barrassed that he could not do the duty which he is called on to
” perform. For more than a judge, infinitely more than a witness, he
” wants protection on the ground of benefit to the public. The rule of
” law is that what is said in the course of the administration of the law
” is privileged; and the reason for that rule covers counsel even more
” than a judge or a witness.”

In my opinion, on the reasoning of that case which extended to a solicitor
advocate on grounds of public policy the same immunity as counsel, a
solicitor, while performing counsel’s function in a court of law, would be
entitled in spite of his contract to the same immunity from suits for
negligence.

Since that is how the law stands to-day, one comes to the second question :
” Ought it to be altered in the public interest? “

On a quick, superficial view, one may well say that a client ought to have
a right to sue his counsel for damage due to his negligence. But the matter
is worthy of more than a superficial consideration. For the present indepen-
dence of counsel is a carefully considered part of a great legal system which
has commanded admiration from various parts of the world.

The legal process inevitably creates hardships and it is not always easy
to see what is the right balance. In attempting to do so one must regard
the interrelation of the various parts.

It is a hardship that a man who has done no wrong should be subjected
by a plaintiff to a baseless charge, in meeting which he will incur large
expense. The charge may be reported largely in the newspapers and injure
his reputation. And if a plaintiff can by untruth persuade the legal aid
fund that he has a good case, the public purse will back the plaintiff’s
unjust attack. And yet if it is finally proved baseless, the public purse will
not pay the innocent defendant’s expenses or recompense the injury to his
reputation. The reason for this latter hardship is that it is rightly con-
sidered that when a plaintiff’s case has a prima facie appearance of truth
(which of course cannot be truly evaluated until there has been investigation
of both sides) it is wrong that it should be stifled for lack of funds. This
latter hardship will probably be removed in time by the obvious remedy
of the State regularly paying the costs in cases where it has erroneously
(as the subsequent events show) backed a case. But the basic hardship is
inevitable and will always remain, namely, that any plaintiff can use the
legal machine as a sounding board for untruthful allegations and cause harm,
trouble and expense to an innocent defendant, and yet the law holds him
(and the Press who report the case) immune from paying damages for their
untruth. Yet to remove this immunity would create a great injury to justice.
Without it, the honest litigant might not dare to bring an honest claim for
fear that if he fails he might be sued for damages.

For the same reasons witnesses are immune. It is a cruel hardship if an
untruthful witness not only slanders a man in court by harmful allegations
made negligently, unreasonably or dishonestly against him, but actually by
such evidence leads a judge or jury to enter an erroneous judgment against
him. Yet what can one do about it? The only remedy would be to allow
the injured party to retry the issue, to prove that the witness was untruthful,
and to get damages against him for the loss he has negligently or untruth-
fully inflicted. Superficially that is the fair answer to the problem. But the
Courts have rejected that superficial answer. Why?

A distinguished judge of the High Court of Australia, Starke, J. in Cabassi
v. Vila 1940 (64 C.L.R. 130), citing many English authorities said (at 140):
” no action lies in respect of evidence given by witnesses in the course
” of judicial proceedings, however false and malicious it may be. any
” more than it lies against judges, advocates and parties in respect of
” words used by them in the course of such proceedings or against juries
” in respect of their verdicts.”

In that case Starke, J. held that no cause of action law in respect even of
conspiracy with regard to evidence at the trial, a decision approved and
applied by our Court of Appeal in Marrinan v. Vibart [1963] 1 Q.B. 528.
And in Hargreaves v. Bretherto [1959] 1 Q.B. 45, Goddard, L.C.J. in holding
that an action for damages for perjury would not lies against a witness said:

” For if such an action could be brought, then in these days, when
” the state provides legal aid, half the prisoners in England would try
” to bring actions and there would be an abundance of these actions in
” in the Courts, which would be a most important result.”

And the law has even extended this immunity to defamatory things said by a
proposed witness to a party and a solicitor with a view to preparing a proof
of what evidence the witness may give in Court (Watson v. Macewen [1905]
A.C. 480). Lord Halsbury (at page 487) there said:

” It is very obvious that the public policy which renders the protec-
” tion of witnesses necessary for the administration of justice must as a
” necessary consequence involve that which is a step towards and is part
” of the administration of justice—namely the preliminary examination
” of witnesses to find out what they can prove. It may be that to some
” extent it seems to impose a hardship, but after all the hardship is not
” to be compared with that which would arise if it were impossible Jo
” to administer justice, because people would be afraid to give their
” testimony.”

Thus, the reasons underlying the immunity of witnesses are; first, that
there would otherwise be a series of retrials and, secondly, that an honest
witness might be deflected by fear of the consequences.

The Courts might have limited the protection to things which are relevant
and necessary to the matters in issue and spoken bona fide. But so important
has it considered the functioning of the judicial process that it has given a
complete immunity even to words spoken mala fide or maliciously or
irrelevantly.

Some may think that this is a mistaken view, in that it creates many hard-
ships for which there is no relief. But it has been consciously and consistently
(and, as I think, rightly) adopted by the courts of this country, regardless
of the hardship that it often causes, in order that a greater ill may be avoided,
namely, the hampering and weakening of the judicial process.

So, too, a juryman is protected from liability for the damage caused by a
biased or stupid or negligent or malicious verdict. This is not intended as a
protection for a biased or negligent or malicious juryman. It is intended to
protect the fair, careful and honest juror. And it cannot avoid protecting the
other kind as well.

So with a judge. He cannot be sued for an act done in his judicial capacity,
event though corrupt (Scott v. Starsfield 1868 L.R. 3 Exch. 220).

And on the fringe of the judicial process is the press, which may with
impunity spread damaging libels provided that they are a fair and accurate
report of judicial proceedings published without malice—a valuable and
necessary immunity on grounds of public policy, yet one which sometimes
causes great and unfair hardship. This is not an immunity designed to pro-
tect the press for their personal benefit. It is an acknowledgment that they
have an important function in informing the public of what is happening in
courts of law. And they cannot perform that function properly if they have
to look over their shoulder at the possibility of writs for libel, which might
deter them from informing the public.

The five essential ingredients of the judicial process at the trial are the
parties, the witness, the judge, the juror and the advocate. If all those are
functioning at their best, only very hard coincides of fate can cause a mis-
carriage of justice. If one of them is not at his best the functioning of the
others tends to correct the balance. I do not believe that justice miscarries
as often as some would have one believe. But of course the loser naturally has
a tendency to believe and an interest in maintaining that there has been an

injustice. And when justice does miscarry I think it is more often because
two or three of the components were not functioning at their best, rather
than because of the specific negligence of one of them.

All those essential ingredients are, under the law as it now stands, wholly
protected in what they say and do (save that counsel is answerable to profes-
sional discipline for misbehaviour). Should he alone of the five be liable to
his client in damages? He, like the judge and jury, has a plain duty of care
and a duty to justice. He also has a duty to the judge and jury not to mislead
them. But whereas the judge and jury owe this duty of care equally to both
sides, he owes it primarily to one side (subject to his overriding duty to the
Court and justice). And whereas the judge and jury are paid by the public
of whom both parties are members, the advocate is paid by one side only
in many cases (though in very many he is paid by legal aid from the public
purse). Should these two facts make the difference, and exclude him from
the immunity which has from of old been given to him as well as to the
other components of the judicial process? The answer to this depends on
whether one holds that the judicial process is of paramount public import-
ance and whether one believes that it would be harmed by excluding the
independence and immunity of counsel.

The law has given the advocate complete immunity for what he says
in court (Munster v. Lamb (supra)) Mathew J. there said (at 594):

” It may be inconvenient to individuals that advocates should be at
” liberty to abuse their privilege of free speech, subject only to animad-
” version or punishment from the presiding judge. But it would be a
” far greater inconvenience to suitors if advocates were embarrassed
” or enfeebled in endeavouring to perform their duty by fear of subse-
” quent litigation. This consequence would follow that no advocates
” could be as independent as those whose circumstances rendered it
” useless to bring actions against them.”

On those grounds one must obviously continue to preserve counsel’s inde-
pendent immunity from liability for putting forward against the other side
defamatory contentions which may afterwards prove to be baseless. (If he
puts them forward without any reasonable grounds he will in fact get into
trouble from professional discipline).

One must obviously, I would think, continue to preserve the client like-
wise from liability for wrongly causing such contentions to be put forward
by his advocate, great as may be the harm that they may cause.

But will it harm the functioning of the courts if the advocate becomes
somewhat less independent and although not answerable to the other party
or anybody else, is made answerable to his own client? The advantage of
making him answerable in the cases (which I hope and believe are few
and far between) where the client has suffered from his negligence are
obvious. Although the client cannot get relief in respect of loss caused by
the faults of the judge, jury, opposing party or opposing advocate, he could
at least get reimbursement for that caused to him by the fault of his own
advocate.

So far as concerns providing a spur to the advocate by the possibility
of actions for negligence, this is unnecessary. Both solicitors and counsel
are always keen to win a case and, incidentally, to give satisfaction to their
clients so far as this is compatible with their duty to the Court and to their
professional standards. This is as inevitable a part of their human makeup
as is the ambition of every judge to decide his cases right. Their danger
rather lies in that they may be too keen to win. Thus to provide a spur
is bad rather than good.

The obvious disadvantages of withdrawing immunity from the advocate
are as follows: On occasions it is an advocate’s duty to the Court to reject
a legal or factual point taken in his favour by the judge, or to remove a
misunderstanding which is favourable to his own case. This duty is of vital
importance to the judicial process. Fortunately it does not very frequently
occur in a glaring form, though in a minor degree it is fairly constant.
When it does occur in a glaring form, it is very unpleasant for the advocate.

It is hard for him to explain to a client why he is indulging in what seems
treachery to his client because of an abstract duty to justice and professional
honour. In the difficult border-line case it is undesirable that a man should
be in danger of being influenced by the possibility of an action for negligence.
The Court has and must continue to have implicit trust in counsel.

Moreover, in every case there is a large number of irrelevancies and
side issues that seem important to the client but are not of help in deciding
‘the case. The solicitor in preparing a case for counsel is rightly loth to
prune these too severely, for he is nearer to the client than is counsel, and
it is therefore more difficult for him to do it. He frequently (and rightly)
leaves it to counsel to perform that task. The Court by tradition is entitled
to expect counsel to perform it. Were the client but able to appreciate it,
its performance is the surest way of winning a just case. How hard this is
for the client to appreciate is known to every advocate. And this is manifest
in so many hopeless appeals where the Appellant’s chief ground of complaint
is that the judge has failed to give weight to some irrelevant matters on
which the client sets great store.

It is important to justice that it should not get bogged down in irrelevant
details. The judge in this is often at the mercy of the advocates who have
a clearer view than he can have as to which matters in the leading of
evidence or in cross-examination will or will not turn out to be relevant as
the case proceeds. As things stand at present the judge trusts counsel.
It is frequent for a judge to say to counsel ” I should not have thought it
” was relevant, but if you tell me it will turn out to be relevant, I shall allow
” it”. It is impossible to expect an advocate to prune his case of irrelevances
against his client’s wishes if he faces an action for negligence when he does
so. Prudence will always be prompting him to ask every question and
call every piece of evidence that his client wishes, in order to avoid the
risk of getting involved in just such an action as the present. This is a
defect which the possibility of an action for negligence would greatly
encourage. It is difficult and it needs courage in an advocate to disregard
irrelevances which a forceful client wishes him to pursue.

This question is of great importance for two reasons. First, if
by good advocacy a case is cut down to its essentials, it is more manageable
and more likely to be justly decided by judge or jury. Secondly, the time
(and consequently the cost) is greatly diminished. An unpruned presentation
of a case may actually double or treble the time which it would have taken
to present had it been properly pruned of all that was not relevant.

If, as I believe to be the case, the number of our judges in proportion to
the work they do is much fewer than in other countries, this is undoubtedly
due in great measure to the fact that a judge can trust counsel and that
counsel can, in putting forward his points or his evidence or in cross-
examining, safely look only to what the judge properly needs for deciding
the case. Hitherto he has not had to look over his shoulder and ask questions
in cross-examination or put forward evidence or take points whose sole
purpose is to assure the client that no stone has been left unturned, so that
he may not follow a defeat by instituting an action for negligence against
his counsel.

Great stress is laid on the argument that the immunity of the advocate
is ” anomalous ” to other professions. But the whole judicial process is
anomalous to other professions. It is a thing on its own. It is a unique
and important process of the community. The various ingredients of it
are immune in respect of the occasional hardships they may create by any
failure on their part. And even the press which is not part of it but which
performs a service in respect of it shares this immunity. It can just as well
be said that it would be an anomaly to make the advocate, alone among the
other ingredients, liable for his failure in the judicial process. In truth
the facile use of the word ” anomalous ” does not advance the matter.

It is argued forcibly that inability to sue his counsel is an unjustifiable
” deprivation ” to the litigant. But in this connection one has to consider
also what privileges the litigant himself receives on precisely these same
grounds of public policy. He himself is immune from claims for all the

damage which he himself may cause (and it may be severe) both to the
other party and to any third party by the bringing of his action, and all the
allegations which are made in it by him (or by his counsel on his behalf)
whether negligently, unreasonably, maliciously or fraudulently. And the
honest, reasonable litigant benefits by this immunity in that he is wholly
free from the expensive risk of a subsequent unjustifiable attack on those
grounds. Particular cases are in no way decisive or even indicative of the
proper balance. In the present case, however, it would seem not improbable
that Mr. Rondel is considerably the gainer by his own immunity. And
though each immunity may in particular cases cause hardship the balance
is not, I think, unfair as it stands at present and certainly it is not so unfair
as to outweigh the cogent factors of public policy which tell in its favour.

In so far as it may be argued that the advocate is unduly fortunate in
sharing the immunity of his fellows in the judicial process, the judges, jurymen
and witnesses, one must remember that he is faced with a difficult task,
as Brett, M.R. and Lord President Inglis pointed out (supra). He is entrusted
with great licence and potent weapons. These must not be used simply
with an eye to his client’s advancement. They must be used in the pursuit
of justice and to elucidate the truth in the public interest with an approach
which is as biassed in favour of his client’s contentions as public considerations
allow. The constant difficulty of inducing men and women to undertake
the profession of the Bar, with its strain, hazard and rather austere self-
discipline, are not wholly without significance when one is considering whether
the advocate is unduly favoured as things stand at present.

A further important consideration is the fact that as matters are and have
been for centuries a barrister is bound to provide his services to a client
who can pay his fee (or whose fees are paid by the public Legal Aid fund)
if the case is one either in the Courts or in the advisory sphere in which
a barrister normally practises. This has been an essential feature of our
law. Many generations of students have been taught to follow Erskine’s
famous words in which he justified his unpopular defence of Tom Paine:
” From the moment that any advocate can be permitted to say that he will
” or will not stand between the Crown and the subject arraigned in the
” Court where he daily sits to practise, from that moment the liberties of
” England are at an end.”

It is easier, pleasanter and more advantageous professionally for barristers
to advise, represent or defend those who are decent and reasonable and likely
to succeed in their action or their defence than those who are unpleasant,
unreasonable, disreputable, and have an apparently hopeless case. Yet it
would be tragic if our legal system came to provide no reputable defenders,
representatives or advisers for the latter. And that would be the inevitable
result of allowing barristers to pick and choose their clients. It not infrequently
happens that the unpleasant, the unreasonable, the disreputable and those
who have apparently hopeless cases turn out after a full and fair hearing
to be in the right. And it is a judge’s (or jury’s) solemn duty to find that
out by a careful and unbiassed investigation. This they simply cannot do,
if counsel do not (as at present) take on the less attractive task of advising
and representing such persons however small their apparent merits. Is one,
then, to compel counsel to advise or to defend or conduct an action for such
a person who, as anybody can see, is wholly unreasonable, has a very poor
case, will assuredly blame some one other than himself for his defeat and
who will, if it be open to him, sue his counsel in order to ventilate his grievance
by a second hearing, either issuing a writ immediately after his defeat or
brooding over his wrongs until they grow greater with the passing years and
then issuing the writ nearly six years later (as in the present case)? This
obvious difficulty is fairly acknowledged by Mr. Blom-Cooper. He seeks
to mitigate it by the ingenious suggestion that the solicitor (who is allowed
to pick and choose his clients) may act as a screen or filter to protect counsel
and that the Legal Aid Fund may do likewise. But with all respect to that
argument it does not meet the case. First, it is not fair to solicitors or the
Legal Aid Fund that they should have any such responsibilities to counsel.
They have their own difficulties (which are great) in trying to decide which

are the honest cases and should be brought (or defended) and it is they
who should be entitled to help from counsel in this. Secondly, and far
more important, it is contrary to the whole tenor of our law that there
should be such a screening and that any prisoner or litigant should be unable
(though he can pay for it) to obtain the services of counsel. It would greatly
increase the number of litigants in person, who already create not inconsider-
able difficulties. And it is to the great advantage of the Courts that the
unreasonable should be advised and represented by counsel, who can
generally, to some extent, by firm suasion, mitigate their unreason and find
some via media by which their case can be presented intelligibly and reason-
ably.

I agree with Erskine that it would cause irreparable injury to justice if
there were any departure from the code which has so long existed, that a
barrister cannot pick and choose. To continue to compel him to take cases,
yet at the same time to remove his independence and immunity would
seem unfair and unreasonable. Moreover, in a human world such an unfair
ruling rarely produces a satisfactory result. It results in evasions and the
payment of mere lip-service to the rule—evasions which any fair minded
disciplinary tribunal would in the circumstances find it hard to condemn.
And thus evasions would increase. In my view, such a rule would create
a harm disproportionate to that which it seeks to remedy.

The independence of counsel is of great and essential value to the integrity,
the efficacy, the elucidation of truth, and the despatch of business in the
administration of justice. These matters are of paramount importance.
The suggested innovation must lessen that independence and do an increasing
and inevitable disservice to the administration of justice. I would not,
therefore, agree with it.

In opening his appeal Mr. Blom-Cooper fairly pointed out the difficulties
of exercising from the major part of counsel’s work those matters which are
only remotely if at all, connected with the Courts. It would produce, to use
his own words, ” a jagged edge “. And Mr. Dunn emphasised these difficulties.
Perring v. Rebutter (supra) showed clearly that the immunity was not
confined to things done in Court, and the language of the Courts dealing with
counsel’s immunity clearly created no exceptions. It is obvious that counsel’s
opinions, not only those on which an action is to be started or not started
(whether for the guidance of a solicitor or the Legal Aid Fund), owe a
duty of honesty to the Courts, and should be written with fearless indepen-
dence. And therein lies much of their value. Moreover, it is important that
in respect of these and of other paper-work the counsel should not be
allowed to pick and choose his clients. If a man, however unreasonable
or undesirable, wants to have counsel’s advice or paper work he should be
entitled to have it. If such a position is to remain unaltered, I do not
think that it is either reasonable or desirable to change the present indepen-
dent immunity of counsel. The loss to the public as a whole would be
greater than the gain. It follows that I agree with the majority of the
Court of Appeal.

I would dismiss the appeal.

Lord Upjohn

my lords,

If a barrister on his way to plead his client’s case in the Courts was asked
whether he would be liable in damages to his client if he mishandled the
case, I think the answer, no doubt after some observations as to the absurdity
of such a possibility, would be that a barrister is immune from liability
for negligence in conducting his case. If pressed why the barrister should be
in this uniquely favourable position, I think that (before this case) counsel
would reply: ” Because there is no contract between a barrister and his

303747 D*

” client; the barrister is not entitled to sue for his fees, they are given to
” him as an honorarium, so per contra the client cannot sue the barrister for
” his negligence “.

If the barrister delved into this matter he would find much authority to
support his view. He would undoubtedly cite the case of Le Brasseur v.
Oakley [1896] ch. page 487, a decision of the Court of Appeal, and rely on
the observations of Lindley L.J. at page 493 when he said:

” But I think it is of the utmost importance that the Court should
” not assist barristers to recover their fees. If they do so the whole
” relation between a barrister and his professional client will be altered
” and a door will be opened which will lead to very important
” consequences as regards counsel. The inevitable result will be to do
” away with that which is the great protection of counsel against an action
” for negligence by his client.”

The inference from that is plain ; inability to sue for fees and immunity from
actions for negligence are correlative. He would find support, too, for this view
in other cases, such, for example, as the Irish case of Robertson v.
MacDonagh L.R. 6 Irish page 433 at 438 and in the very recent case of Lopes
v. Adams and Vanier [1965] 9 W.I.R. 183 at 187 decided in the Supreme
Court of British Guiana. The test books, too, would support him. See, for
example, 3 Halsbury volume 3 page 46 paragraph 66 and Winfield on Torts
14th ed. page 185 though doubting its justification (the last edition has been
altered as a result of Hedley Byrne) and Salmond on Torts 14th ed. page 83.
Counsel for the Appellant argues that if that is the true ground of the immunity
of counsel from negligence it is a bad one and that your Lordships should hold
that no longer to be the law. I see much force in that submission and the
question of immunity must be examined in detail; but before doing so there
are three matters which may be stated which are not in dispute and are indeed
common ground. First, it is clear that counsel cannot sue for his fees. This
has been established for nearly two hundred years and it is usually put upon
the ground that a barrister is of too high an estate to condescend to the
common arena to sue his client. Fees must be regarded as pure honoraria
(see Thornhill v. Evans 2 Atkyns 330 per Lord Mansfield and re May 1858
Jurist new series 1169, Kindersley V.C.). It is true that Bayley J. in Morris v.
Hunt 1 Chitty 544 at 551 put it on a more realistic though humdrum basis that
counsel should ensure that he is paid before the case and the matter should
not be left to chance afterwards, so that he cannot thereafter maintain an
action ; not a very good reason. Best J. in the same case really put the
inability of counsel to sue upon the ground of public policy, namely, that
counsel should not thereby have any temptation to endeavour to get a verdict.
However, whatever reason may be ascribed it is clear that counsel cannot
sue for his fees and this applies equally to fees for non-litigious work (see
Mostyn v. Mostyn 5 Ch. A. 957) though that was only a matter of admission,
but in principle the admission was clearly right.

Secondly, a barrister does not enter into a contract, express or implied,
with his client or with the solicitor who in all matters pertaining to litigation
necessarily stands between the barrister and the lay client except in the case
of dock briefs. At one time it was left open whether a barrister could expressly
or impliedly contract with his client in litigious matters though I have no
doubt it would always have been regarded as a breach of professional
etiquette for him to do so ; but I regard it as settled by Kennedy v. Broun
13 C.B.N.S. 677 that in fact counsel is incapable of doing so. Parenthetically
the necessity for the marking of a fee on a brief before counsel appears in
court is only because it is entirely contrary to the etiquette of the bar that he
should admit his fee to depend on the result (see Bayley J. in Morris v. Hunt
(supra)). This incapacity to contract is important, for counsel for the
Respondent founds an argument upon it to which I must later return. To
sum up the result of these two points, fees due to counsel create no debt:
Wells v. Wells [1914] P.D. 157 ; re Sandifords [1935] Ch. 681.

Thirdly, although in the times of the Year Books, as the painstaking
judgment of Lawton J. has shown, barristers could have been sued for
negligence, at that time, as the learned judge points out, the distinction between
an attorney and a barrister was far from clear. Such liability was indeed
regarded as arguable in the case of Bradish v. Gee (1754) Ambler 229. But
since those days it is quite clear that no one has ever successfully sued a
barrister for negligence. As long ago as 1791 Kenyon C.J. in Fell \. Brown
170 E.R. 104 regarded this immunity as elementary and the great Erskine
must have agreed with him for he gave up his plea that a barrister could be
sued even for crassa negligentia. This has been accepted in every case
since (see for example Perring v. Rebutter (2 Moo. & R. 929); in Scotland
Purvey v. Landell 12 Cl. & F. 91 and in Ireland Mulligan v. McDonagh,
1860 Ir. Jur. 101) and was, in my opinion, subject only to the views of your
Lordships settled in the case of Swinfen v. Chelmsford 5 H. & N. 890.

Nevertheless, counsel for the Appellant is entitled to urge that this so far
admitted immunity rests upon wrong grounds and that your Lordships should
reconsider the whole matter.

My Lords, before considering the question of the alleged immunity of
counsel one must examine the general law and test it in that light. The
general principle is that if one undertakes to perform a service or give advice
gratuitously for another in circumstances in which it is clear that the other
relies upon those services or upon that advice then, gratuitous though the
labour or advice may be, the performer of the services or the giver of the advice
is liable to the other if he does so negligently. This was laid down by Kenyon
C.J. in the great case of Wilkinson v. Coverdale 1 Esp. 75 where he held
that a plea (subsequently in fact not established) that the plaintiff could recover
on a gratuitous promise to effect a policy of insurance which he negligently
failed to carry out was maintainable. And see Tindal C.J. in Lanphier v.
Phipos 8 Car. & P. 475 at 479 who stated the principle in most general terms:
” Every person who enters into a learned profession undertakes to bring to the
” exercise of it a reasonable degree of care and skill “.

This principle has frequently been restated and applied ; to give three
examples all in your Lordships’ House, see Nocton v. Ashburton [1914]
A.C. 933 where Lord Shaw stated the principle, at page 972, though basing
it on innocent misrepresentation by an adviser upon whose advice another
was entitled to rely; Banbury v. Bank of Montreal [1918] A.C. 626 where
Lord Atkinson, at page 689, took the example of the liability of a doctor
for negligent treatment even where a patient was insensible at the time and
incapable of employing him ; and finally in Medley Byrne v. Heller [1964]
A.C. 465 where Lord Morris of Borth-y-Gest, at page 502, summed it up in
this way:

” If someone possessed of special skill undertakes, irrespective of
” contract, to apply that skill for the assistance of another who relies
” upon such skill a duty of care will arise.”

Physicians suffered with barristers the like inability to sue for fees until the
law was altered by statute in 1858 (since when only Fellows of the Royal
College of Physicians of London enjoy that disability) and this inability
has usually been expressed to be on the same ground as that of counsel,
i.e. they with counsel, are of too high a standing to stoop to sue (see per
Kenyon C.J. in Charley v. Bolcot 4 T.R. 317 and Poucher v. Norman
3 B. & C. 744). Nevertheless, physicians have constantly been found liable
for crassa negligentia in the advice or treatment that they have given (see
Lanphier v. Phipos (supra) and Tippin v. Shephard 11 Price 400; Everitt v.
Griffiths [1920] 3 K.B. 163 per Scrutton L.J. at 193. But it cannot be
doubted that a physician can contract with his patient, seldom though this
may happen. The liability of a physician cannot with any sense of reality
be distinguished from that of counsel as depending upon liability for trespass
to the person.

So prima facie counsel undertaking his client’s case falls within the general
rule that he will be liable for negligence. I have, I hope, said enough to
shew his immunity (if it exists) from this general rule cannot depend on his

status or his inability to sue (where he is in pari 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 contract. It is said that the general rule from
Wilkinson v. Coverdale to Hedley Byrne is based on a capacity to contract
for there must be something akin to contract to involve liability for a
gratuitous act; a voluntary assumption of liability is equivalent to a contract
and some of the observations of your Lordships but in a different context
in the last mentioned case were relied on.

I cannot accept this view. It seems to me clear that prima facie counsel
falls within the general principle. His lay and professional clients go to
him for his special skills in the field in which he practises; the greatest
reliance is always placed on those skills as no one knows better than the
barrister concerned. To escape from the general rule merely because of
an incapacity to contract is a proposition which to-day is entirely unaccept-
able, and not warranted by any authority.

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 incapability
to contract. I think that public policy necessitates that, at all events in
matters pertaining to litigation, a barrister should have this immunity, and
basically it depends upon two factors. 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 practice and that he is properly instructed or, to put it more
bluntly, properly paid according to his standing at the Bar. Whatever may
be the powers of counsel to compromise civil litigation contrary to his
client’s instructions during its course there can be no doubt that, however
much he may believe it to be in the interests of his client that the latter
should plead guilty, if the client refuses to accept that advice counsel is
bound to continue with the defence of the prosecution, however distasteful
it may be. I make no apology for quoting yet again the famous words of
Erskine when he accepted a brief to defend Tom Paine:

” From the moment when any advocate can be permitted to say
” that he will or will not stand between the Crown and the subject
” arraigned in the courts where he daily sits to practise, from that
” moment the liberties of England are at an end.”

That at once distinguishes the position of the barrister from even the
physician who is not bound to undertake any treatment which he does
not advise.

The second and more important consideration is that the barrister is
engaged in the conduct of litigation whether civil or criminal before the
courts. He is not an officer of the court in the same strict sense that a
solicitor is ; if a solicitor fails in his duty to the court he is subject to the
jurisdiction of the court which can, and in proper cases does, make
summary orders against him. The barrister is not subject to any such
jurisdiction on the part of the judge. To take a simple example: if a
solicitor is not present in court personally or by an authorised representative,
he is open to be penalised by being ordered to pay personally costs thrown
away at the discretion of the judge. If counsel is not present, it may be
that the judge will express his views upon the matter but I do not believe
he has any power over counsel save to report him to the Benchers of his
Inn. But while the barrister is not an officer of the court in that sense he
plays a vital part in the proper administration of justice. I doubt whether
anyone who has not had judicial experience appreciates the great extent
to which the courts rely on the integrity and fairness of counsel in the
presentation of the case. I do not propose to expand this at very great length
for it has been developed in the speeches of those of your Lordships who
have already spoken upon this matter ; but 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 court which in certain cases transcends that primary duty. I think
that the Scots case of Batchelor v. Pattison 3 Rettie page 914 sets out at page

918, in a lengthy passage which I will not quote, a very useful description of
the independent conduct required of counsel in the conduct of a case. But I
may mention some duties cast upon the barrister; if in a civil case the client
produces a document which may be nearly fatal to his case it is the duty of
counsel to insist on its production before the court; the client may want coun-
sel to drag his opponent through the mire by asking a number of questions
in cross-examination in the hope that the opposition may be frightened into
submission. Counsel here has equally a duty to the court not to cross-
examine the opposition save in accordance with the usual principles and
practice of the Bar. In a criminal case it is the duty of counsel not to note
an irregularity and keep it as a ground of appeal to the Court of Appeal
(Criminal Division) but to take the point then and there. This may be seriously
prejudicial to his client’s case (see Neal [1949] 2 K.B. 590). Counsel is equally
under a duty with a view to the proper and speedy administration of justice
to refuse to call witnesses, though his client may desire him to do so, if
counsel believes that they will do nothing to advance his client’s case or
retard that of his opponent. So it is clear that counsel is in a very special
position and owes a duty not merely to his client but to the true administration
of justice. It is because his duty is to the court in the public interest that he
must take this attitude. It is this consideration which has led to the immunity
from defamation of counsel, as of the judge and the witnesses, for all that he
says in court, for all the questions that he asks and for the suggestions he may
make to the witnesses on the other side. This immunity is just as necessary
in his general conduct of the case as in the case of defamation, not to protect
counsel who abuses his position but to protect those who do not, for the reason
that, in the words of Fry, L.J. in Munster v. Lamb 11 Q.B.D. 588 ” it is the
” fear that if the rule were otherwise numerous actions would be brought
” against persons who were merely discharging their duty “. Counsel may
deliberately decide beforehand not to call a witness but anyone who has prac-
tised at the Bar knows the stresses and strains that counsel undergoes during
the course of a case. It is all in public ; immediate decision may have to
be made as to whether to call or not to call a witness and even more quickly
whether to ask or not to ask a question. The judge may, for even judges are
human, be perhaps unreceptive to counsel’s case. All these circumstances
may place counsel in a bad light with his client. If counsel is to be subject
to actions for negligence it would make it quite impossible for him to carry
out his duties properly. I am not, of course, suggesting for one moment
that the fact that counsel does or does not call a witness, or does or does not
ask a question or does or does not ask to amend his pleadings could possibly
by itself be a cause of action for negligence, even if ” jobbing backwards ”
on mature reflection it had been better if counsel had pursued an opposite
course. The most that can be said is that he committed an error of judgment.
But if the law is that counsel can be sued for negligence it is so difficult to
draw the line between an alleged breach of duty where none in fact had been
committed; a mere error judgment; and negligentia or indeed crassa negli-
gentia and counsel might be sued in actions which may well turn out to be
quite misconceived: this case may, indeed, be a very good example of it.
But if the threat of an action is there counsel would be quite unable to give
his whole impartial, unfettered and above all, uninhibited consideration to
the case from moment to moment, and without that the administration of
justice would be gravely hampered. So that in litigation it seems to me quite
plain that immunity from action is essential in the interests of the adminis-
tration of justice as a whole upon the ground of public policy. Regrettable
though it may be. if in any case counsel does commit an actionable wrong
(but for the immunity) the client who suffers must do so without requite in
the public interest.

I am quite unable to agree with the argument of counsel for the Appellant
that this immunity is any new ground of public policy. It is all part and parcel
of the long-established general policy that judges, witnesses and counsel must
be immune from actions arising out of their conduct during the course of liti-
gation in the public interest. That is sufficient to dispose of this appeal.

However, your Lordships have had some discussion upon two cognate
questions; though they do not arise for decision they should be discussed.

The first question is as to the liability of a solicitor for acts of negligence
during the conduct of his client’s case in an inferior court when acting as an
advocate. 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
immunity. Thus, for example, if he so fails properly to instruct himself he
cannot claim any immunity. See the interesting Canadian case of Leslie v.
Ball Upper Canada Reports [1863] page 512 where Hagarty, J. said:

” If a Canadian attorney, having full knowledge of certain material
” facts or the existence of material facts or the existence of material
” evidence uses his privilege of acting as counsel himself and wholly
” omits urging such facts or calling such evidence, I think he cannot
” complain if he be treated exactly as if he had omitted properly to
” instruct counsel.”

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. See Fergusson v. Lewis
(1874) 14 Law Journal page 700. So, too, a solicitor, although acting as
advocate, will be liable for negligence if he fails to give notice of appeal
within the proper time or if he fails to make diligent enquiry as to possible
witnesses, or fails to make the proper arrangements for their attendance;
although for my part I think that the case of Scudder v. Prothero & Prothero
reported in the Times newspaper 16th March 1966 was probably wrongly
decided on its facts. Lord Pearce in his speech has mentioned a number
of examples where an attorney has been held liable for breach of duty
and many other examples could be mentioned where a solicitor, even if
the advocate in the case, would not be excused. So I think the general
result is likely to be that a solicitor 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 attendance of witnesses, he neg-
ligently fails to call one of them. The only reported case referred to your
Lordships of a solicitor being held negligent for his conduct while engaged in
what I may describe as pure advocacy is the case of Stokes v. Trumper
2 K. & J. 232 before Page Wood, V.C. That case is so obscure and based
on procedure not current for very many years that I do not understand it.
It may well be that it was, with all respect to that great judge, wrongly
decided.

I appreciate that these general observations leave a large field for decision
of the limits of this doctrine of immunity in relation to solicitors which
I have only tentatively explored. Thus counsel in settling pleadings would,
in my present though not final view, be immune from action if, being properly
instructed upon the relevant facts, he failed to plead the relevant Statute
of Limitations. Would a solicitor be entitled to a similar immunity (see
Fletcher v. Jobb [1920] 1 K.B. 275)?

The second question is whether counsel acting in non-litigious work would
be immune for giving advice negligently. But first, perhaps, I should,
however tentatively, suggest where I think the immunity of counsel engaged
in litigation should start. Clearly it must start before counsel enters
the doors of the Court to conduct the case. He will have had to give
fearlessly to his client advice on the prospects of success; he will have
settled the pleadings; and on discovery; in his advice on evidence and on
many other matters he may have had to refuse to adopt his client’s wishes.
As a practical matter, I do no more than suggest 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 described as pertaining to litigation
but rather as pure paper-work such as drafting of wills, settlements, con-
veyance, real property contracts, commercial contracts, charter parties or
giving advice generally which are not done with a view to litigation but
rather with a view to defining the rights of the parties and, in many cases, to
avoid litigation. And in this class I think must be included that large
class where settlements are entered into with a view to the avoidance of
some fiscal liability probably at a later stage, though it may be recognised
that such settlements may well be challenged by the Board of Inland
Revenue at the appropriate time. 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 litigious matters should extend to matters which are not
litigious. It is true that the case of Perring v. Rebutter 2 M. & R. 429 has
been quoted as an authority that counsel’s immunity extends beyond litigious
matters. But I do not myself think that the authority goes that far. In
the old days a special pleader could not appear in court but he was essentially
one who was concerned with settling the pleadings which were all part of
the court action. So, as I have ventured to define the area of litigation,
the special pleadings would fall within it. Nor for my part can I derive
any assistance from Mostyn’s case (supra) in this respect. I can find nothing
in that report which goes to counsel’s immunity. However, in my opinion,
there is this to be said. 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 (supra) 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 excitement which of course it has done within the profession to-day.

Finally, it must be remembered that counsel is not liable in negligence
merely because he expresses an opinion which ultimately turns out to
be wrong nor merely because he overlooks one of a number of relevant
authorities. Further, in spite of the expression of Lynskey, J., in Pentecost
v. London District Auditor [1951] 2 K.B. 759 at 766 that so far as
civil proceedings are concerned gross negligence is not known to the
English common law, I remain of opinion that counsel will only be guilty
of crassa negligentia or gross negligence by some really elementary blunder,
see Purves v. Landell (supra).

My Lords, for these reasons I would dismiss the appeal.

Lord Pearson

MY LORDS,

For more than a hundred years it has been a settled principle of English
law that the arrangement between barrister and client (which is made through
the agency of a solicitor, except in the case of a dock brief) for the barrister
to conduct litigious business for the client is not a contractual or otherwise
legally binding arrangement. The relationship of barrister and client in
respect of litigious business does not create legal rights or legal obligations.
The client does not make a legally binding promise that he will pay the
barrister his fees. The barrister does not make a legally binding promise
that he will act for the client or that when so acting he will exercise due
care and skill. Therefore, the barrister has no right of action against the
client for fees, and the client has no right of action against the barrister for
breach of undertaking or for negligence.

It seems to me that is the broad conclusion which emerges from the
authorities. But there are several aspects to be considered. I should make
it plain at the outset that the only liability under consideration is liability

for negligence or breach of contract. No doubt, if a barrister were guilty
of collusion or otherwise dishonest conduct, the client would have a remedy.
But no question of that kind arises here.

The inability of a barrister to sue for his fees has been established for a
very long time. His fees for advocacy are mere honoraria: Moor v. Row
(1629) 1 Chan. Rep. 38; Viner’s Abridgment Vol. 6 page 478 ; Blackstone’s
Commentaries Vol. 3 page 28. (” It is established with us, that a counsel can
” maintain no action for his fees; which are given, not as locatio vel con-
” ductio, but as quiddam honorarium ; not as a salary or hire, but as a
” mere gratuity, which a counsellor cannot demand without doing wrong
” to his reputation.”) Turner v. Phillips (1792) Peake 166 ; Morris v. Hunt
(1819) 1 Chitty 544; Kennedy v. Broun (1863) 13 C.B.N.S. 677; Mostyn v.
Mostyn (1870) 5 Ch. App. 457 ; In re le Brasseur and Oakley [1896] 2 Ch.
487 C.A.; Wells v. Wells [1914] P. 157 C.A.; Re Sandiford [1935] Ch. 681.
There was also in Ireland Robertson v. Macdonogh (1880) 6 L.R. Ir. 433,
citing with approval and following the judgment in Kennedy v. Broun.

The immunity of a barrister from legal liability for breach of his under-
taking to appear for the client and from liability for negligence in the con-
duct of the case has been well established for more than a hundred years.
There were some early dicta to the effect that a barrister might be liable,
e.g. in Bradish v. Gee (1754) Ambler 229, but there seems to have been no
decision holding a barrister liable. There has been a series of decisions
holding a barrister not liable. Fell v. Brown (1791) Peake 131 ; Perring v.
Rebutter (1842) 2 M and Rob. 420; Swinfen v. Lord Chelmsford (1860)
5 H. & N. 890; cf. In re Le Brasseur and Oakley [1896] 2 Ch. 487, 494.
The same position has been recognised in Scotland and Ireland. Purves
v. Landell (1845) 12 Cl. and Finn. 91, 103 ; Batcheler v. Pattison and
Mackersy (1876) 3 R. 914, 918; Mulligan v. M’Donagh (1860) The Irish
Jurist 101.

The immunity is from tortious as well as contractual liability. In this
connection the view taken by the Court in Perring v. Rebutter (supra) is
important, because the action was on the case for professional negligence
rather than breach of contract. As the report is quite short, I will set it
out:

” This was an action on the case against the defendant as a special
” pleader. The declaration alleged that the defendant carried on the
” business and profession of a special pleader, and had taken out a
” certificate as such, and undertook to advise on matters of law, and to
” draw and advise on the proper pleas to be drawn to actions, for fees
” and reward in that behalf, whereby it became his duty to use due
” diligence etc. That a certain action had been brought against the
” plaintiff, and the defendant was retained and employed by him to
” advise on the proper plea and defence to be made and so negligently
” conducted himself, and misadvised the defendant (alleging the steps
” advised by the defendant) that the defence failed. The declaration
” alleged that the defendant was not nor ever had been a barrister.
” Pleas, 1st Not guilty, and other pleas traversing the material allega-
” tions of the declaration. On the case being called on, Lord Abinger
” C.B. said he had read the declaration and did not see how this action
” could be maintained. Such an action was certainly not maintainable
” against a barrister, and in his opinion there was no distinction between
” the case of a barrister and that of a certificated special pleader. Upon
” this intimation of his Lordship’s opinion, a conference took place
” between the counsel, and the case was settled by withdrawing a juror.”

Although the essence of the ratio decidendi in Swinfen v. Lord Chelms-
ford and Kennedy v. Broun was the absence of a contract between barrister
and client in relation to litigation, I think it appears from the course of
the arguments as well as the judgments that the reasoning should be under-
stood as ruling out tortious as well as contractual liability. In Swinfen v. Lord
Chelmsford at page 911, after counsel had cited in argument certain cases
relating to liability for negligence in performing gratuitous services,
Branwell, B. said: ” The general doctrine is clear; the only question is,

” whether the case of counsel is an exception “. In fact the action on the
case for professional negligence, independently of contract, is an ancient
form of action, recognised but not invented in Hedley Byrne and Co. Ltd.
v. Heller and Partners Ltd. [1964] A.C. 465. I do not. accept the argument,
though it was congently presented on behalf of the Appellant, that the
Hedley Byrne case has altered or rediscovered anything in the barrister
and client relationship, at any rate so far as litigious business is concerned.

Moreover, if there were any legal rights or obligations created by this
relationship, they would have to be contractual because the arrangement
is contractual in form: the client through his solicitor makes his offer by
delivering the brief, and the barrister accepts it.

I think it is right to say that the barrister’s immunity from liability for
professional negligence in the conduct of litigation is an exception from a
general rule of professional liability. It is based on public policy. In
order to show the recognised basis and scope of the exception, I will cite
some passages from authoritative judgments.

The judgment of the Court of Exchequer in Swinfen v. Lord Chelmsford
is important for the decision and for the reasoning so far as it goes, but
it does not fully elucidate the doctrine, because there was a difference of
opinion in the Court on some points, which were therefore not dealt with.
There are, however, two passages of major significance:

page 920—

” We are all of opinion that an advocate at the English bar, accepting
” a brief in the usual way, undertakes a duty, but does not enter into
” any contract or promise, express or implied. Cases may, indeed,
” occur,, where on an express promise (if he made one) he would be
” liable in assumpsit: but we think a barrister is to be considered, not
” as making a contract with his client, but as taking upon himself an
” office or duty, in the proper discharge of which not merely the client,
” but the Court in which the duty is to be performed, and the public
” at large, have an interest.”

page 921—

” A counsel is not subject to an action for calling or not calling a
” particular witness, or for putting or omitting to put a particular
” question, or for honestly taking a view of the case which may turn
” out to be quite erroneous. If he were so liable, counsel would
” perform their duties under the peril of an action by every disappointed
” and angry client.”

The doctrine was further developed in the judgment of the Court of
Common Pleas in Kennedy v. Broun. It was shown at pages 732-3 that
the suggested distinction between express or special contracts and implied
contracts was unsound. ” A special contract differs from an implied contract
” only in the mode of proof . . . The incapacity depends on the subject-
” matter, not on the mode of proof.” I think the most important passages
in the judgment are these:

page 727—

” We consider that a promise by a client to pay money to a counsel
” for his advocacy, whether made before, or during, or after the litigation,
” has no binding effect; and furthermore, that the relation of counsel
” and client renders the parties mutually incapable of making any
” contract of hiring and service concerning advocacy in litigation. For
” authority in support of these propositions, we place reliance on the
” fact that in all the records of our law, from the earliest time till
” now, there is no trace whatever either that an advocate has ever
” maintained a suit against his client for his fees in litigation, or a
” client against an advocate for breach of a contract to advocate ; and,
” as the number of precedents has been immense, the force of this
” negative fact is proportion ably great.”

page 729—

. . . These are authorities for holding that the counsel cannot contract
” for his hire in litigation. The same authorities we rely on to show

” that the client cannot contract for the service of counsel in litigation.
” There is the same absence of any precedent for such an action: and the
” reason for the one incapacity is good for both . . . The proposition
” is confined to incapacity for contracts concerning advocacy in litigation.
” This class of contracts is distinguished from other classes on account
” of the privileges and responsibility attached to such advocacy: and
” on this ground we consider the cases unconnected with such advocacy
” to be irrelevant. Thus, the barrister who contracted to serve as
” returning officer—Egan v. The Guardians of the Kensington Union
” 3 Q.B. 935 ; and the barristers who contracted to serve as arbitrators—
” Vivary v. Warne 4 Esp. N.P.C. 46, Hoggins v. Garden 3 Q.B. 466,
” Marsack v. Webber 6 H. & N. 1,5; and the barristers who contracted
” either for an annual sum by way of retainer (39 H. 6, fol. 21, pl. 31)
” for an annuity pro consilio impenso et impendendo (Plowd. Com.
” pages 32, 150)—made contracts not concerning litigation, and therefore
” not within the incapacity here in question.”

page 736—

” If the authorities were doubtful, and it was necessary to resort to
” principle, the same proposition appears to us to be founded on good
” reason. …”

page 739—

” On principle, therefore, as well as on authority, we think that there
” is good reason for holding that the relation of counsel and client
” in litigation creates the incapacity to make a contract of hiring as an
” advocate. It follows that the requests and promises of the defendant,
” and the services of the plaintiff, created neither an obligation nor
” an inception of obligation, nor any inchoate right whatever capable
” of being completed and made into a contract by any subsequent
” promise.”

In a Scottish case, Batchelor v. Pattison and Mackersy (1876) 3 R. 914,
the advocate and the agent (a writer to the signet) were sued by the client for
alleged mishandling of the case in Court. The Sheriff-substitute found that
the pursuer’s allegations were irrelevant and insufficient to support the
conclusions of the action, and he therefore dismissed the action. The Sheriff
adhered. On appeal the First Division of the Court of Session upheld the
the decision and refused the appeal. The Lord President in his judgment
dealt both with the position of the advocate and with the position of the
agent. As to the advocate he said at page 918:

In the case of In re Le Brasseur and Oakley [1896] 2 Ch. 487 C.A. a
barrister was claiming to set off fees payable to him by solicitors for his acting
as counsel in proceedings before a Parliamentary Committee against sums
due from him to the same solicitors. The barrister’s claim was rejected by
Kekewich J. and the Court of Appeal. Lindley LJ. said at page 494:

“… I think it is of the utmost importance that the Court should not
” assist barristers to recover their fees. If they do so, the whole relation
” between a barrister and his professional client will be altered, and a
” door will be opened which will lead to very important consequences as
” regards counsel. The inevitable result will be to do away with that
” which is the great protection of counsel against an action of negligence

” by his client “

Lopes L.J. said at pages 495-6:

” I entirely agree that the Court cannot and ought not to assist a
” barrister in recovering his fees. Their payment is only a matter of
” honour. It is open to counsel, if he thinks fit, not to accept a brief
” unless the fee is prepaid, and it would be contrary to all the decisions,
” and I think against good policy, to hold that counsel’s fees are recover-
” able. The decision of the Court of Common Pleas in Kennedy v.
” (Broun has always been acted upon, and it establishes the unqualified
” doctrine that the relation of counsel and solicitor renders the parties
” mutually incapable of making any contract of hiring and service in
” regard to litigation. That rule has existed for a long time and, speaking
” for myself, I should be very sorry to see it in any way impugned.”

Rigby L.J. at page 496 agreed with the order and the reasons for it and
especially with what had been said about counsel’s fees.

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 defective,
in that it was being said that because a barrister 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 misunderstanding of the reasoning, which was
entirely sound. The reasoning was that the relation between the barrister and
the client (acting through his solicitor) is non-contractual and does not create
legal rights or obligations on either side, so that the barrister can neither sue
for his fees nor be sued for negligence ; but if the courts were to decide that
the barrister could sue for his fees, the decision would mean that there is a
contractual relationship, and it would follow that he could be sued for
negligence in the conduct of a case.

These are, I think, the principal passages in the authorities the passages
which state the doctrine most clearly. I find them convincing. The doctrine
is logical and consistent and supported 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. I have had the advantage of reading in advance the speeches of
my noble and learned friends and I agree with what they have said on the
aspects of public policy involved and I cannot usefully add anything.

There are two further questions. They do not arise for decision in this
appeal, but they are closely connected with the dominant principle which, in
my view, determines the result of this appeal and they were considered in
the judgments of Lawton J. and the Court of Appeal. I will say a few words
about them.

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 above do not show it. Indeed, the judgment in
Kennedy v. Broun emphatically and repeatedly confined the proposition—
the barrister’s and client’s mutual incapacity to contract—to matters of liti-
gation. There is a case Mostyn v. Mostyn [1870] 5 Ch. App. 547 where it
was held that a barrister was not entitled to claim for fees for work done
by him as conveyancing counsel in giving advice and settling conveyances.
It would follow, according to the doctrine as I understand it, that he could
not have been sued for negligence in doing such work. But Giffard L.J.
in giving judgment did not draw that conclusion, and did not go deeply
into the question involved. While expressing warm approval of the judg-
ment in Kennedy v. Broun, he made no mention of its emphatic and repeated

limitation of the proposition to matters of litigation. It seems to me that
Mostyn v. Mostyn is not a convincing authority, at any rate on the question
of immunity, and it is at least doubtful whether barristers have any immunity
from liability for negligence in doing ” pure paper work ” in the sense which
I have indicated.

Does a solicitor advocate have the same immunity 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 barrister’s in-
capacity to contract is not readily (if at all) applicable to a solicitor. The
existing position, as usually understood, is that the solicitor by accepting
instructions makes with his client a contract, under which the solicitor has
a legal right to remuneration and legal obligations to carry out the instruc-
tions and to exercise due care and skill in doing so. I am not aware of any
decision or even dictum in a judgment to the effect that there is an exception
relating to the solicitor’s work as an advocate—that in respect of such work
there is no legal right or legal obligation. If public policy requires that a
solicitor must have immunity from legal liability in respect of his advocacy
work, what is to be the contractual position? The solicitor may accept
composite instructions, both to do the ordinary work of a solicitor (for
instance, to interview witnesses and take their proofs and arrange for their
attendance at the trial) and to conduct the case in Court as an advocate.
In such a case how much of the arrangement between the solicitor and
the client is contractual and how much is non-contractual? That is not an
easy question to answer. There are problems involved. They are not neces-
sarily insoluble. But I think they would be more appropriately considered
at length in a case where the question of a solicitor’s liability for advocacy
work was raised for decision.