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Chapter- III
DEFICIENCY IN SERVICE UNDER LEGAL
PROFESSION
3.1 Introduction:
Services rendered by professional men like, legal professionals, medical
professionals and engineers are indispensable for any society. Professional men
exercise great skills and competence in rendering these services. At the same
time they have to comply with prescribed legal standards. Often legal
accountability and professional discretion may conflicts. The recent upsurge of
Legal and Medical professionals against their inclusion under the Consumer
Protection Act, 1986 is an indication of unrest. What is required is to give
confidence to professionals that professional discretion exercised in good faith
would not impose liability on them.
The peculiar features of professional service necessitate a certain
amount of discretion for professional men for effective discharge of their
duties. But abuse of discretion by professional men can expose the consumers
to great hardship. Similarly excessive legal accountability may persuade
professionals not to undertake innovations in the practice of their professions.
Hence it is necessary to strike a balance between professional discretion and
accountability to safeguard the community interest. In this chapter the legal
profession is dealt under the different heads covering the consumer laws of
India.
In this context it is necessary to examine whether the Indian legal
system provides such confidence to the professionals. The legal profession is
the one of the most maligned one. Professionals such as doctors, lawyer,
architects and others are included in the category of persons professing special
skill. Any reasonable man practicing a profession requires particular level of
learning and impliedly assures the person dealing with him that he possesses
Deficiency in Service Under Legal Profession Page 39
such requisite qualifications and that he will profess his skill with reasonable
degree of care and caution. It follows that a professional man should command
corpus of knowledge of the profession he is practicing. He should not lag
behind other intelligent members of his profession in knowledge. He should be
alert to the hazard and risk in any professional task he undertakes. He must
bring to any professional task he undertakes expertise, skill and care similar to
other ordinary members of his profession, but need bring no more. The
standard is that of the reasonable average. He need not possess the highest or a
very low degree of care and competence.
Legal professional‟s s like doctors practices a learned profession. As one
leamed in the law, they render professional services to their clients with respect
to both litigitious and non-litigitious matters. They ought to render services in
conformity with prescribed standards. Failure in this regard gives rise to
liability.1
A legal professional when renders services with respect to litigations
matters owes a primary duty of assisting the court in the administration of
justice. It supersedes the duty he owes to the client. Therefore his liability for
deficiency in service must be determined without ignoring such primary duty.
Apart from that a legal professionals can invoke certain defences to claim
exoneration from liability. Like doctors the liability of legal professionals can
be based either on contract or on tort law. However cases decided under civil
law for negligence of legal professionals are very few in India. In consumer
courts also only limited number of complaints is filed. Hence the position of
legal professionals‟ liability is examined mainly in the light of cases decided by
courts in other jurisdictions. Wherever Indian decisions are available, they are
also incorporated in the study.2
This note deals with perception of professional negligence of legal
professionals in general and critically analyses whether the liability of legal
1Available on http://shodhganga.inflibnet.ac.in/bitstream/10603/5795/16/16_chapter%2010.pdf
accessed on 21 June, 2016 at 3:12 p.m. 2 Ibid
Deficiency in Service Under Legal Profession Page 40
practitioners would „fall within the ambit of the services as defined under
section 2(1) (0) of the Consumer Protection Act, 1986.
3.2 Deficiency in Legal Service:
The prime purpose in regulating legal service plans like that in much other
regulation is to ensure performance of their commitments; and to that subject
we shall give extended consideration. We shall then give more summary
attention to control over the quality, quantity, and cost of legal services; to the
fairness of contracts; and to fairness in competition. All these variations have a
bearing on the need for and the most appropriate forms for the regulation of
legal service plans.
The prepaid, or risk spreading, element suggests the possibility of
insurance-style regulation; the involvement of legal professionals evokes
consideration of the traditional system of regulating the legal profession. Plans
covering employee groups, like other employee benefit plans, are subject to a
regulatory regime of their own under federal law. Special regimes also exist for
other groups, such as automobile clubs and students. Legal service plans,
widely regarded as the key to better availability of legal services for Americans
of moderate incomes, have not yet found their proper place in the legal and
regulatory framework. Uncertainty about regulatory requirements threatens to
hold up progress.
It analyzes the inherent dangers of various types of plans and suggests
ways of providing adequate protection for consumers while preserving
maximum freedom and flexibility for experimentation with new delivery
systems. Specifically, the authors recommend the existing and time-tested
system of insurance regulation as the most suitable model for plans having a
significant risk-carrying element, subject, however, to appropriate amendments
to accommodate the unique features of some kinds of plans, such as bar-
sponsored nonprofits organizations, and with special procedures to ensure close
cooperation with disciplinary authorities as far as the conduct of legal
professionals is concerned. A volume containing all the principal and
background papers prepared in this study, including a modified version of the
Deficiency in Service Under Legal Profession Page 41
present article, will be published by the American Bar Foundation as Legal
Service Plans: Approaches to Regulation.3
In Malyon v. Lawrance, Messer & Co4. Case the plaintiff met with a
road accident. His legal professionals allowed the claim to be statute barred. In
the meantime the plaintiff contracted neurosis which was not expected to clear
up till the conclusion of the litigation. The court awarded damages for the value
of the original claim and compensation for loss of earnings caused thereby.
Legal professionals s and their professional organizations need not
themselves become risk carriers to be involved in and to influence the manner
of organization and operation of legal service plans. They can act and have in
many instances acted as consultants and have contributed their expertise as
board members of consumer-sponsored organizations; or they have provided
liaison with individual attorneys, drafted participating attorney agreements, and
encouraged the members of the bar to participate.
The role of financial intermediary and risk carrier is beyond the
traditional interest and expertise of legal professionals and their professional
organizations; it requires special actuarial, management, and marketing skills
that usually have to be obtained by hiring experts. Even more important, it
requires substantial financial resources in order to get such an operation started
and to keep it in sound condition.
These difficulties have convinced some bar associations that had
originally intended to operate plans themselves to stay in the background and to
assign the risk-carrying and administration functions to specialists, such as
insurance companies or professional administrators. We regard this as prudent,
although, given proper caution and advice; a professional organization could
successfully operate a risk carrying legal service plan. But whatever its merits
from an economic and professional point of view, an operation of this kind
raise a number of regulatory questions, which we now explore.5
3 Werner Pfennigstorf and Spencer L. Kimball, Regulation of Legal Service Plans, American Bar
Foundation Research Journal, Vol. 2, No. 2 (1977), pp. 357-454 4 [1968] 2 Lloyd‟s Rep. 539 q.
5 Ibid
Deficiency in Service Under Legal Profession Page 42
3.3 Quality of Legal Services:
Quality of legal services is to comprise the professional competence of a legal
professionals and his capacity and willingness to exercise his best professional
judgment in advising his clients without interference by a third party and
without distortion by conflicting interests. It is these last two aspects of quality
that have polarized opinions about closed panel plans, under which the services
are provided by attorneys selected by the plan administration rather than by the
client. In open panel plans, clients select their attorneys individually in the
traditional manner, that is, without guidance other than the advice of relatives,
friends, or colleagues or possibly an official referral agency; the problem of
finding competent legal professionals and assuring adequate service from them
is the same as it is for other citizens who employ legal professionals
individually.
The only new problems created by open-panel plans are related to the
fact of third party fee payment, which may tempt sub-scribers into overutilizing
benefits and induce legal professionals to adjust fees upward or quality
downward or to provide services that are not necessary. 6
The Supreme Court in Jacob Mathew v. State of Punjab7 has
interpreted the term professional negligence as thus; a professional may be held
liable for negligence on one of the two findings: either he was not possessed of
the requisite skill which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession.
It is not possible for every professional to possess the highest level of
expertise of skills in that branch which he practices. A highly skilled
professional may be possessed of better qualities, but that cannot be made the
6 ibid
7 2005 Cri LJ 3710.
Deficiency in Service Under Legal Profession Page 43
basis or the yardstick for judging the performance of the professional
proceeded against on indictment of negligence.
3.4 Liability of the Professionals:
3.4.1 In England Context:
In England, for over a century, it has been held that barristers cannot be sued
for breach of professional duty. This rule was initially based on the ground that
they are under no contractual obligation towards their clients, and the fees
received by them are considered in the nature of honorarium. Thus in Swinfen
v. Chempsford (Lord)8, Pollock C.B., said: “we are all of the opinion that an
advocate in 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. Case
may indeed, occur where, on an express promise he would be liable in
assuming it; but we think a barrister is to be considered not making a contract
with his client, but as taking upon himself an offence or duty, in the
professional 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.9
Similarly in Batcelor v. Pattison10
, Lord President said: “An Advocate
in undertaking the conduct of a cause in this court enters into no contract with
his client, but take o himself an offence in the performance of which he owes a
duty, not to his clients only, but also to the court, to the members of his own
profession, and to the public…….it follows also that he cannot demand or
recover by action any remuneration for his service, thouh in practice he recived
honoraria in consideration of those services…11
Halsbury‟s Laws of England states the law as follows, “If a barrister
acts honesty in the discharge of his duty, he is not liable in 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 setting draft or in advising. No action is
8 (1860) 5 H& N 890 cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law Publishing Co.
(2008) 9 Ibid
10 (1887) 3 R (ct. of Sess.) 914, cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law
Publishing Co. 11
Ibid
Deficiency in Service Under Legal Profession Page 44
maintainable against a barrister for unskilfully drawing pleadings. The law
requires of counsel nothing is maintainable against a barrister for unskilfully
drawings. The law requires of counsel nothing what he does to be for the
benefit of his client, he is not responsible to his client for anything he does. The
immunity from action is not confined to legislation, but extends to all case
where the relation of counsel and client exists.”This statement, however, is
preferred by a statement that the client is precluded from suing counsel by the
mutual incapacity of counsel and client to contract for the service of council.12
Thus in England it has long been settled that immunity of a council or
barrister from being sued for professional negligence in the conduct of a case,
criminal or civil, is based on public policy, not on his contractual incapacity to
sure for fees, and it is in the public interest that the immunity should be
retained, one factor being that council owes a duty to the immunity should be
retained, one factor being that counsel owes a duty to the court for the true
administration justice.
The immunity of a barrister or counsel is now statutorily recognised by
Section 62 of the Courts and Legal Services Act, 1990. But the immunity of a
barrister should not be given any wider application than is absolutely necessary
in the interest of administration of justice. Where, however, a barrister/ counsel
acts as a solicitor, he is liable for professional negligence. Thus, in Saif Ali v.
Sydney Mithchel & Co.13
, it was held that a barrister‟s immunity from suit
does not extend to negligence in advising as to who should be joined as
defendant and in setting pleadings.
3.4.2 In Indian Context:
In India, the subject matter is governed by the Legal Practitioners (Fees) Act,
192614
provides that no legal practitioner who has acted or agreed to act shall,
by reason only of being a legal practitioner, be exempted from liability to be
12
Ibid 13
(1987) 3 All ER 933 (HL), cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law
Publishing Co. 14
Act No. 21 of 1926.
Deficiency in Service Under Legal Profession Page 45
sued in respect of any loss or injury due to any negligence in the conduct of his
professional duties. The Act defines inter alia the right of Legal practitioners to
sue for their fees and their liability to be sued in respect of negligence in the
discharge of their professional duties. The Act defines the term „legal
practitioner‟ to mean, (a) a legal practitioner as defined in section 3 of the
Legal Practitioners Act, 1879;15
and (b) a legal practitioner shall not be deemed
to “act” if he only pleads, or to “agree to act” if he agrees only to plead.
The Indian position on advocates‟ liability for negligence is envisaged in
section 5 of the Legal Practitioner‟s (Fees) Act, 1926, which provides: “No
legal practitioner who has acted or has agreed to act shall, by reason only of
being a legal practitioner be exempted from liability to be sued in respect of
any loss or injury due to any negligence in the conduct of his professional
duties.”
In Mathew v. Maugh0ld_Lzfe Assurance C0. Ltd16
. case thelegal
professionals advised on a scheme to reduce estate duty liability. They failed
to inform her that she should exercise a particular option if her husband
survived for seven years. As a result of it she could not exercise the option and
estate duty liability could not be reduced.legal professionals were held liable
for incomplete advise.
In Stronghold Investments Ltd. v. Renkema17
case thelegal
professionals for a purchaser of property failed to advice on the formalities
necessary to transfer the fire insurance policy. Fire occurred and he remained
uninsured and sustained loss. The legal professionals were held liable for their
negligence in failing to give advice, even though it was not specifically asked
by the client.
The Indian Supreme Court in N. Veerappa v. Evelyn Sequira,18
held that
a legal practitioner cannot claim exemption from liability in respect of any loss
or injury suffered by the client due to any negligence in the conduct of his
15
The Legal Practitioners Act, 1879 defines a legal practitioner as an advocate, vakil of attorney of any
High Court, a pleader, mukhtar or revenue agent. 16
[1985] l P.N. 142. 17
[1984] 7 D.L.R. 427. 18
(1988) 1SCC 557.
Deficiency in Service Under Legal Profession Page 46
professional duties merely by reason of being a legal practitioner. But whether
or not this is to be considered to be the established position is shrouded with
ambiguity19
owing to the following observations of the court:20
We are not expressing any opinion on the matter except to point out that
there is a specific provision in the Legal Practitioner‟s (Fees) Act, 1926 setting
out the legal practitioners would also be liable for being sued by their clients if
they had been negligent in the performance of their professional duties.
The Supreme Court further analyzed various provisions of the Legal
Practitioner‟s (Fees) Act, 1926 which would go to show that any legal
practitioner who acts or agrees to act for any person may settle with the said
person the terms of his engagement and the fee to be paid for his professional
services; that the legal practitioner will be entitled under law to institute and
maintain legal proceedings against his client for the recovery of any fee due to
him under the agreement or as per the costs taxed by the court where there has
been no pre-settlement of the fee; and that no legal practitioner who has acted
or agreed to act shall merely by reason of his status as a legal practitioner be
exempt from liability to be sued in respect of any loss or injury due to any
negligence in the conduct of his professional dutes.21
While expounding the Indian law on the subject, the Indian Supreme
Court has sought reliance on several English judgments delivered by the House
of Lords in England. The House of Lords enunciated a general principle
regarding the liability of professionals,‟ in Hedly Byrne & Co. Ltd. V. Heller
& Partners,22
wherein Lord Morris observed that if someone possessed of a
special skill undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies on such skill, a duty of care would
arise.
19
R. Aditya Narayan “Advocates‟ Liability for Negligence in Criminal Cases:The Fallouts”Availableat
http//www.legalserviceindia.com/articles/follouts.html 20
Id. At 571. 21
Supra note 7, para 23. 22
Supra note 4.
Deficiency in Service Under Legal Profession Page 47
In Heywood v. Wellers,23
the plaintiff was held entitled to recover
damages from the defendant firm of solicitors for the mental distress which she
had suffered consequent on the solicitor‟s negligent failure to enforce an
injunction. In Midland Bank Trust Co. Ltd. V. Hett, Stubbs & Kemp,24
it was
held that the solicitors were liable to the plaintiff in tort as they had failed to
exercise due care and skill on which they knew the client would place reliance
and because of the duty they owed to the client not to injure him by failing to
do that which they had undertaken to do.
In V.S. Shukla v. Brzjesh Kumar Dwivedi25
case the Madhya Pradesh
State Commission took the view that if an advocate failed to plead the case, the
client was free to engage the service of another advocate. The above view is
contrary to the view taken in Riaz Ahmad Sharifkhan, which enjoins a duty on
an advocate to do the needful to safeguard the interest of the client.
In Riaz Ahmad v. Sharzfkhan v. Babu Mastafklzan26
case in the
Maharastra State Commission observed,”“. .. Once the advocate is engaged by
the client and he receives fees in part or in full, he is duty bound to attend the
interest of his client. He must file the proceeding as asked for by the client fort
with. He must incorporate all the pleadings subject to law and rules and he
must be deligent in filing the proceedings before the court or the tribunal. He
cannot relax on this point...it is his duty to maximise the benefit and to
minimise the loss to his client the client may loose or win...”
In Marry v. Pettman Smith,27
the House of Lords held that public
interest did not require advocates to be held immune from suit for the
consequences of their negligence but that interest did require that the
application of the principle should not stifle advocates‟ independence of mind
23
1976 (1) All E.R. 300, wherein the plaintiff instructed a firm of solicitors to apply for an injunction
to restrain one X from 24
[1978] 3 All E.R. 571; a firm of solicitors was sued for damages for their failure to register a formal
agreement, as a consequence of which the plaintiff could not enforce his option under the agreement to
purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had
been conveyed to another. 25
(1997) 3 C.P.J. 334. 26
(1998) 3 C.P.J. 559. 27
2005 WL 62288 (HL): [2005] 1 All E.R. 903: [2005] Lloyd‟s Rep. Med. 293: [2005] N.P.C. 15.
Deficiency in Service Under Legal Profession Page 48
and action in the manner in which they conducted litigation and advised their
clients.
3.5 Impact of the Liability on the behaviour of the Legal Professionals:
The absence of immunity of advocates for negligence may affect the behaviour
of legal professionals adversely. An advocate‟s duty to the court epitomizes the
fact that the course of litigation depends on the exercise by the counsel of an
independent discretion of judgment in the conduct and management of a case.28
The judiciary has acknowledged the concerns of the legal practitioners and it
has been supported by various courts in India as well as in England.
Mason CJ in Gianarelli v. Wraith opined thus:29
If advocates in criminal cases were to be exposed to the risk of being
held liable for negligence, the existence of that risk would influence the
exercise of their independent judgment in order to avoid the possibility of being
sued. The temptation, in order to avoid the possibility, would be to pursue
every conceivable point, good or bad, in examination, to ensure that no
argument was left untouched and no stone was left uncovered. The exercise of
independent judgment would be subordinated to the instincts of the litigant in
person who insists on pursuing every question without any regard to the
interests of the court and to the interests of the administration of justice
generally.
The absence of such immunity may give rise to a large number of
vexations claims, attempting, in a wholly unbalanced manner, to re-open,
without justification a case which a party lost and which, by brooding over it,
can no longer see it in an objective light. Disgruntled by a decision, it reflects
on various side issues of which it considers that the judge failed to take any
account or any sufficient account.30
It is also pertinent to note that if the defence advocate is to be exposed to
a civil liability in respect of his discharge of his public duty and the role will be
28
Supra note 8. 29
[1988] 81 ALR at 556. 30
Arther J.S. Hall v. Simons (2000) 3 All ER 673.
Deficiency in Service Under Legal Profession Page 49
unique among all the participants. All the others the public prosecutor, the
judge and the witness are in public Interest immune. The same logic applies to
the defence advocate whose role derived from the public interest as that of the
other participants. If he alone is to be subjected to civil, liability, he will be
unable to obtain a contribution from any other participant, although they may
be equally blameworthy for what went wrong.31
3.6 Advocate Act 1961:
The conduct of legal professionals is government by the Advocate Act 1961.
Under this law, Bar Councils have been set up in the states and at the Central to
enrol law graduates as legal professionals, to here and decide cases of miscount
against legal professionals, to lay down standards of professional conduct, and
to establish procedures of disciplinary committees. They have other functions,
which are more for the welfare of the legal professionals than for their clients.
Bar councils are also enjoined to set up legal aid committees.
3.7 Contractual Liability of Professionals:
The extent of legal professionals‟s obligation towards his client for the breach
of contract depends upon the terms of the contract32
. Generally a legal
professional is retained to render services on legal matters. Obligation with
respect to business matters can also arise if the legal professionals accept such
unequivocal instructions by the client.33
It follows that nothing prevents a legal
professionals from contracting to render advice on a business question.
Some obligations of legal professionals have to be discharged within the
strict time limits imposed by the circumstances of the client. It gives an
inference that in such a situation time is the essence of the retainer. Any failure
31
Id. At 744. 32
Midland Bank Trust Ltd. v. Herr, Stubbs & Kemp, [1978] 3 All E.R. 57l(Ch.D.) The employment of
legal professionals rests on a contract, resulting from execution of retainer by the client which may be
express or implied. See 44 “Halsbury‟s Laws Of England”, 4m edition, pp. 61-63 (1983). 33
Yager v. Fishman & C0, [1944] l All E.R. 552 (C.A.). In this case it was contended on behalf of the
clients that thelegal professionals failed to advise them to determine the lease rather than to keep it in
existence to find a suitable tenant. But this contention was not accepted by the Court of Appeal.
Deficiency in Service Under Legal Profession Page 50
to discharge the contractual obligation within the stipulated time attracts
liability.
In Stirling v. Poulgrain34
case the first plaintiff instructed the legal
professionals to transfer two farms to a trust with the object of reducing the
estate duty on her death. The Inland Revenue Authority agreed for a particular
valuation provided the transfers were effected before a specified date. But the
legal professionals failed to effect the transfer within the stipulated time. As a
result the valuation increased. The court held that there was a breach of
contract on the part of the legal professionals.
A legal professional can terminate the retainer for justifiable causes. If
he gives reasonable notice, he will not incur any liability. But unjustifiable
termination attracts liability.35
A client can also terminate the retainer if legal
professionals fail to discharge his obligations.36
On such an eventuality a legal
professionals has to be blamed for the termination of the relation and
accordingly he will be held liable.
3.8 Tortious Liability of Professionals:
According to Salmond “A tort is a civil wrong for which the remedy is an
action for unliquidated damages and which is not exclusively the breach of a
contract, or the breach of a trust, or the breach of other merely equitable
obligation.”
It is pertinent to understand what is meant by tortious liability or rather
the nature of tort law in order to understand its utility. To throw more light, the
word tort evolved, from at one time very nearly passing into literary use as a
synonym for wrong but after the middle of the seventeenth century, a practise
began in the courts of the common law, of distinguishing between actions in
34
1980] 2 N.Z.L.R. 402. 35
Section 73 of The Indian Contract Act, 1872. 36
In Re Wingfield and Blew, [1904] 2 Ch. D. 665 at p.684.
Deficiency in Service Under Legal Profession Page 51
„contract‟ for breaches of contract and actions for other wrongs, and of using
the word „tort‟ as a compendious title for the latter class of actions.37
The liability of legal professionals arises independent of a contract. In
tort liability is mainly based on professional negligence38
. A legal professionals
is bound to exercise such care and skill which is expected from a reasonably
competent legal professionals . Accordingly a legal professionals is not under
an obligation to know all the laws. ln Montriou v. Jefleries39
the court
observed, “No attomey is bound to know all the law. God forbid that it should
be imagined that an attorney or a counsel or even a judge is bound to know all
the law”.
But he is bound to know certain statutes and laws that reasonably
competent and knowledgeable legal professionals ought to have known. In
Fletcher & Son v. Jubb Booth and Hellz'well40
, a client instructed the legal
professionals to initiate an action against the local authority for personal injury.
He omitted to do so within the period of limitation prescribed by the Public
Authorities Protection Act, 1893. Lt was held that he was negligent for not
initiating the action within the period of limitation and bound to pay
compensation to the client.
It follows that a legal professionals is held liable for the consequences of
ignorance or non-obsenance of the procedural laws and rules of practice
pertaining to his department of profession.” Legal professionals may be in fact
ignorant of a point of law. But he should take step to inform himself of it.
3.9 Liability of the Legal Professionals under the Consumer Protection
Act, 1986:
Keeping in view the interest of the innocent buyer of goods and user of
services, Parliament of India enacted the Consumer Protection Act in 1986 to
37
Available on http://www.legalserviceindia.com/article/l129-Torts-In-India.html accessed on 22 June
2016 at 01:56 p.m. 38
R. A Percy (ed.), “Charlsworth on Negligence London, para 1006 (1977), Available on
http://shodhganga.inflibnet.ac.in/bitstream/10603/5795/16/16_chapter%2010.pdf accessed on 21 June,
2016 at 3:20 p.m. 39
(1895) 2 C. & P. 113. 40
[1920] l K.B. 275.
Deficiency in Service Under Legal Profession Page 52
safeguard such interests. By its ever-increasing reach with the help of a
plethora of judicial pronouncements of the National Commission and the
Supreme Court, the Act has now become very popular among citizens. This
Act serves as a check against the seller of goods and service providers from
selling or providing the consumer with faulty goods or services respectively.41
The concept of service42
is very wide. How it (the concept of „service‟)
should be understood and what it means depends on the context in which it has
been used in any enactment. It is in three parts. The main part is followed by
inclusive clause and ends by exclusionary clause. The main clause itself is very
wide. It applies to any service made available to potential users. The words
„any‟ and „potential‟ are significant. Both are of wide amplitude. The word
„any‟ dictionary means „one or some or all‟. In Black‟s Law Dictionary it is
explained thus, “word „any‟ has a diversity of meaning and may be employed
to indicate „all‟ or „every‟ as well as „some‟ or „one‟ and its meaning in given
statute depends upon the context and the subject-matter of the statute”. The use
of the word „any‟ in the context it has been used in clause (o) indicates that is
has been used in wider sense extending from one to all.
However, recent developments are indicators of an oncoming state of
chaos when the ambit of the Act has been unnecessarily stretched to a
forbidden territory by holding legal professionals liable for deficiency in
service under the aforesaid Act.43
In C. S. Sarma v. P. Venkatswamy44
, the complainant had paid the fees
for filing a suit to legal professionals. But the suit was not filed. The legal
professional was directed to repay the fee with interest. Similarly in
41
Available on http://www.legal professionals sclubindia.com/articles/LEGAL PROFESSIONALS -S-
LIABILITY-UNDER-CONSUMER-PROTECTION-ACT-237.asp accessed on 22 June, 2016 at 3:08
p.m. 42
Section 2(1)(o) of the Consumer Protection Act, 1986 defines service as service of any description
which is made available to potential users and includes the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical or other energy, board or
lodging or both, housing construction, entertainment, amusement of the purveying of news or other
information, but does not include the rendering of any service free of charge of under a contract of
personal service. 43
Supra note 41. 44
(1997) 1 C.P.J. 425.
Deficiency in Service Under Legal Profession Page 53
Veerabrahmachari v. B. Venkateswara Rao45
a legal professional was directed
to repay the fee and compensation of Rs.250/- for failing to file a suit.
The intention and object of the Consumer Protection Act is to provide a
speedy remedy and for better protection of interests of consumer. The Supreme
Court in Kishore Lal v. Chairman, Employes; State Insurance Corp.,46
observed that jurisdiction of the consumer fora has to be construed liberally so
as to bring many cases under it for their speedy disposal. The Act being a
beneficial legislation, it should receive a liberal construction. The Supreme
Court in the case of Lucknow Development Authority v. M.K. Gupta47
has
analyzed the concept of service under the Consumer Protection Act as under:
The High court of Madras in the case of Srimathi and others v. The Union of
India and others,48
has decided that the services provided by the legal
practioners fall within the ambit of the Consumer Protection.
The high court observed that there is no such provision in the Advocates
Act to bar the jurisdiction of other courts and authorities or tribunals in relation
to matters connected with the advocates Act does not have any provision to
enable the bar council to deal with the dispute between the client and the
advocate if the clients seek a remedy of damages or refund of money paid to
the advocates or sums on monetary claim. The bar council is empowered to
deal with merely disciplinary matters and consider whether the advocate is
guilty of misconduct which will fall under section 6 (1) of the Advocates Act,
1961.49
Hence, the contentions that „the Advocates Act prevails over the
Consumer Protection Act and consumer redressal forum has no jurisdiction to
deal with claims against the advocates‟ were held to be untenable. As the first
part of the section makes it clear, service of any description will fall service of
all legal professionals to his client.
45
(1997) 1C.P.J. 147. 46
(2007) 4 SCC 579. 47
(1994) 1SCC 243 at 254-255. 48
AIR 1996 Mad 427: 1996 (2) CTC 402: (1996) II MLJ 482, para 7. 49
S. 6 of the Advocates Act sets out the functions of the state bar council.
Deficiency in Service Under Legal Profession Page 54
In the case of D.K. Gandhi v. M. Mathias,50
the national consumer
redressal commission made it clear that all professionals, including legal
professionals, should come under the ambit of the Consumer Protection Act.
The plaintiff had engaged the professional services of legal professionals and
filed a consumer complaint against him at the district consumer forum. The
district consumer forum directed the legal professionals to pay Rs. 3,000 as
compensation for mental agony and harassment. State consumer disputes
redressal commission overruled the district forum‟s order by stating that a
complaint against a legal professionals was not maintainable before the
consumer forum as the service rendered by legal professionals did not come
under the section the reasoning given by the state commission was erroneous.
The national commission stated that “the ambit and scope of Section
2(1)(o) of the Consumer Protection Act which defines “service” was very wide
and well established. It covered all services except rendering of services free of
charge or a contract of personal service. Undisputedly, legal professionals were
rendering service. They were charging fees. It was not a contract of personal
service. Therefore, there was no reason to hold that they were not covered by
the provisions of the Consumer Protection Act, 1986”.
The question whether legal professionals should come under the
purview of the Consumer Protection Act, 1986 reached the Supreme Court in a
recent case.51
The Supreme Court held that advocates are not liable to be
dragged to consumer courts for allegedly providing unsatisfactory services to
their clients. The bench gave the temporary ruling after a cursory and
preliminary examination of the relevant laws and said it would give final
hearing after a detailed examination of the issue.52
If doctors can come under the Consumer Protection Act, so should legal
professionals. In fact, if legal professionals blunder and do not make the right
50
Order dated August 06, 2007 in RP No. 1392/2006 of the National Consumer Disputes Redressal
Commission, New Delhi. 51
Bar of Indian Legal Professionals v. D.K. Gandhi SLP (C) NO. 3053 of 2008, SLP (C) No. 11539 of
2008, SLP (C) No. 8786 of 2008, dated April 13, 2009. 52
The case is converted to Civil Appeal No. 2647/2009 and has been listed before the appropriate
bench as the Delhi High Court Bar Association v. D. K. Gandhi. See, www.supremecourtofindia.nic.in
Deficiency in Service Under Legal Profession Page 55
arguments by flawed drafting of a case, they should be held accountable. It will
certainly improve the judicial system and weed out substandard professionals
in the legal profession. It will accelerate the improvement in service delivery in
legal counselling. Legal professionals are just like service providers in any
other profession and if technical consultants can come under the provisions of
the Consumer Protection Act, so should legal professionals since they provide
similar service to clients as technicians.
The national commission says that legal professionals may not be
responsible for the favourable outcome of a case as the result/outcome does not
depend only on legal professionals‟ work. But if there is deficiency in
rendering services promised, for which consideration in the form of fee is
received by him, then the legal professionals can be proceeded against under
the Consumer Protection Act.53
The facts of D.K. Gandhi v. M.Mathias, in Revision Petition No. 1392
of 2006, pronounced on 6th
August 2007 D.K Gandhi had engaged the
professional service of M. Mathias, a legal professionals . In a subsequent
dispute, Gandhi alleged negligence on the part of Mathias and filed a consumer
complaint against him in the District Consumer Forum. The matter went before
the Delhi Consumer Disputes Redressal Commission in Appeal No.1815 of
2000, which observed in its order dated 10. 03. 2006 that a complaint against a
legal professionals would be beyond the province of the Consumer Protection
Act.
The reasons for such gainsaying were as follows:
Firstly, that in an advocate-client relationship the client executes the power of
attorney to his advocate to do certain acts on his behalf, but nothing is stated in
the contract or power of attorney as to what would be the liability of the
advocate in case of his failure to act.
Secondly, the contract giving rise to the above relationship is a unilateral
contract executed by the client giving authority to the legal professionals to
53
Supra note 24.
Deficiency in Service Under Legal Profession Page 56
appear and represent the matter on his behalf without any specific assurance or
undertaking and,
Thirdly, there is no term of contract whereby such power of attorney is
executed to the advocate.
Finally, an implication of this judgment is the needless exaggeration of
the term „service‟. The Supreme Court held that the main clause in section 2 (1)
(o) of the Consumer Protection Act, 1986, defining „service‟ itself is very wide
by the use of the word „any‟. It applies to any service made available to
potential users. The words „any‟ and „potential‟ are significant. Both are of
wide amplitude. The dictionary meaning of „any‟ is one or some or all. The
Black‟s law dictionary defines „any‟ as all or every or some or one. So „any‟ is
used in a very wide sense extending from „one‟ to „all‟. The judgment therefore
serves to still widen an already wide term.54
The Supreme Court in the case of Indian Medical Association v. V.P.
Shantha,55
observed that in the matter of Professional liability, professions
differ from other occupations for the reason that professions operate in spheres
where success cannot be achieved in every case and very often success of
failure depends upon factors beyond the professional man‟s control. In devising
a rational approach to professional liability which must provide proper
protection to the consumer while allowing for the factors mentioned above, the
approach of the courts is to require that professional men should possess a
certain minimum degree of competence and that they should exercise
reasonable care in the discharge of their duties. If there is negligence on the
part of medical practitioner, the right of affected person to seek redress would
be covered by the Consumer Protection Act. The same principle would apply in
case of service to be rendered by legal professionals.
Legal professional‟s s renders service and charge a fee for it, the basic
requirement of service under the Consumer Protection Act, 1986. Legal
professionals may not be responsible for the favourable outcome of a case, but
54
Supra note 41. 55
(1995) 6SCC 651.
Deficiency in Service Under Legal Profession Page 57
he should be liable if there is a deficiency in rendering the promised services. It
is beyond reasonable doubt that the services provided by the legal practitioners
falls within the ambit of the services under the Consumers Protection Act,
1986. But certain Difficulties are faced by the courts in determining the
liability of the legal practitioners under the Consumer Protection Act, 1986. it
is believed that in order to promote a sense of accountability and responsibility
and restore the faith of general public in these professionals and legal
institutions, they should be covered under the Consumer Protection Act, 1986.
There is a need to examine the amplitude of the services and deficiency
of services under this Act. The question “whether all the acts or omission of the
legal practitioners may constitute the deficiency of service as defined under the
Consumer Protection Act 1986,” is to be answered. Judicial interpretation of
the terms „services‟ and „deficiency of service‟ with respect to the legal
practitioners, keeping into account the intention of the legislature and
objectives of the special enactment, is the need of the hour.56
The conduct of the legal practitioners has been deteriorating. It is
strongly believed that there is a need to redefine the liability of these
professionals under the Consumer protection Act, 1986, which is capable of
providing speedy and economical justice to the aggrieved person.
3.10 Conclusion:
Generally legal professionals are liable only to his clients. In certain cases
persons who are directly injured by his acts or omissions can also bring an
action against him. Many questions relating to third party liability frequently
arise in connection with carelessly drafted wills. A legal professionals‟s
liability to the disappointed beneficiary is recognised in many jurisdictions. The
Consumer Protection Act is a law which has taken within its ambit not only the
deficiency in goods but also in services and legal and medical service is well
included in it. The machineries under the CP Act are supposed to provide
56
Mann, Jeet Singh, “Liability of the Legal Practitioners for Professional Negligence: A Critical
Analysis”, JILI, Vol. 51 No.3 July-Sep, 2009, pp. 385-394
Deficiency in Service Under Legal Profession Page 58
speedy, inexpensive justice with minimum formalities57
. Tort law provides
methods for getting redressal in cases of negligence. Further the breach of
contract is also covered in it.
Law does not allow a legal professional to contract out liability for
deficiency in services. The prohibition against contracting out protects the
clients from unscrupulous legal professionals. But a total prohibition is not
needed to protect the interests of clients. Therefore it is submitted that the
parties shall be given the freedom of limiting liability at a reasonable level. It is
very necessary that Legal Practitioners must not in any way suffer their
negligence in spite of their remedy under different laws the client are still
suffering. Consumer laws may be of great help provided the consumers must
be made aware of their rights. I want to conclude that it is not the number of
laws or the outdated or old laws which cause problem but it is the ineffective
and incompetent mechanism which implement them are the real problems.
**********
57
Supranote 28, at p.148.
