Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment ‘unless the error was such as no reasonably well-informed and competent member of that profession could have made.’
He considered the barrister’s overriding duty to the court: ‘The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered.’
Lord Wilberforce said: ‘Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer.’ and ‘In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply.’ and ‘Much if not most of a barrister’s work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed.’
Lord Salmon: ‘Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent.’ However ‘it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.’ and ‘The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care.’
Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
[1980] AC 198, [1978] 3 All ER 1033, [1978] 3 WLR 849, [1978] UKHL 6
Bailii
England and Wales
Citing:
Considered – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited by:
Cited – Atwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007
The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
Cited – Abrahams v Commissioner of the Police for the Metropolis CA 8-Dec-2000
The claimant had been arrested for swearing at a police officer. After her arrest, the claimant made admissions to secure a caution, rather than risk prosecution. She later sought to begin a civil action for damages against the police in the course . .
Cited – Awoyomi v Radford and Another QBD 12-Jul-2007
The claimant sought damages from the defendant barristers who had represented her in criminal proceedings. They had not passed on to her the statement made by the judge in chambers that if she pleaded guilty he would not impose a sentence of . .
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 – Williams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Pritchard Joyce and Hinds (A Firm) v Batcup and Another CA 5-May-2009
Standard expected of negligence claim on counsel
The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Professional Negligence
Leading Case
Updated: 02 November 2021; Ref: scu.181061
