A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the court an undertaking on behalf of his client had no duty of care to his own client’s opponent, unless there was something to indicate a particular adoption of such a duty. This applies even where the undertaking was given in excess of his authority and proved unenforceable. The authorities did not support the proposition ‘that counsel for one party may in the absence of circumstances evidencing a voluntary assumption of responsibility to that other party owe a legally enforceable duty of care to that party’ and ‘ as a general principle counsel owes a duty to his lay client to do for him all that he properly can, with due care and attention. Counsel owes no such duties to those who are not his clients. He is no guardian of their interests, and indeed what he does for his client may be hostile and injurious to his opponents. In the ordinary course of adversarial litigation counsel or solicitor owes no duty to the lay client’s adversary.’
Brooke, Beldam, Mummery LJJ
Times 08-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1509, [1999] Lloyds Rep PN 790, [1999] PNLR 826, [1999] All ER (D) 552
Bailii
England and Wales
Citing:
Appeal from – Connolly-Martin v Davis ChD 17-Aug-1998
The claimant appealed against the striking out of her claim for negligence against counsel for her opponent who had signed a consent order purporting to give an undertaking from his client when in fact the client did not consent.
Held: The . .
Cited – Orchard v South Eastern Electricity Board CA 1987
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not . .
Cited – Business Computers International Ltd v Registrar of Companies ChD 1988
A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
Cited – Batten v Wedgwood Coal and Iron Company ChD 18-Jan-1886
A solicitor was held to owe a duty to a party other than his client where, having carriage of the court’s order, he failed to comply with the duty (imposed by a rule of court) to lodge a request for the investment of money in court at the Chancery . .
Cited – Allied Finance and Investments Ltd v Haddow and Co 1983
(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the . .
Cited – Al-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Connell v Odlum 1993
(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Welsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
Cited – Hussain v Hussain CA 1986
Sir John Donaldson MR said: ‘Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in like terms and that the contrary has never been suggested . . Undertakings . .
Cited by:
Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Professional Negligence
Leading Case
Updated: 11 November 2021; Ref: scu.79453