HOUSE OF LORDS

RONDEL v WORSLEY [1969] 1 AC 191

22 November 1967

Full text

Editor’s comments in red.

Policy

LORD REID:

… 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 unjustifiable …

Duty to the Court

SALMON LJ: [In the Court of Appeal]

The Bar has traditionally carried out these duties, and the confidence which the Bench is able to repose in the Bar fearlessly to do so is vital to the efficient and speedy administration of justice. Otherwise the high standard of our courts would be jeopardised. This is the real reason why public policy demands that there should be no risk of counsel being deflected from their duty by the fear of being harassed in the courts by every litigant or, criminal who has lost his case or been convicted.

LORD MORRIS OF BORTH-Y-GEST:

… 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 would be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-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 litigation.

In my view, the public advantages [of the immunity] outweigh the disadvantages. They do so overwhelmingly in respect of criminal cases and considerably so in respect of civil cases …

Cab Rank rule

LORD PEARCE:

… 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 … 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)? …

Full text

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 witness 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 that 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 21 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 be amendment; and I shall not deal with the facts beyond syaing 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 MR and Danckwerts and Salmon LJJ) on 20 October 1966, dismissed the appeal. Salmon LJ said ([1966] 3 All ER at p 674, letter b [1967] 1 QB at p 516), I think justly, that the appellant’s claim was clearly as devoid of mertit 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 lordship has been directed to the general question of barrister’s 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 shown 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. 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 withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. 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 diferent 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.

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 stopping 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 where a solicitor was sued for defamatory words which he had spoken while defending an accused person. Sir Baliol Brett MR said ([1881–85] All ER Rep at p 792, letter c; (1883), 11 QBD at p 599) 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 ((1883), 11 QBD at p 604,

[1881–85] All ER Rep at p 796):

‘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.’

And Fry LJ dealing with the analogous cases of judges and witnesses said ((1883), 11 QBD at p 607, [1881–85] All ER Rep at p 797):

‘The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions 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 untruthful 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 pasages 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 show 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 ben 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. 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 if 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 v Trumpen; but the researches of counsel have only discovered one recent reported case - Scudder v Prothero & Prothero. 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 show that among some three hundred claims only about eight 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. 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 Ltd v Heller & Partners, Ltd 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 connexion. 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 connexion 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. 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 these differences as sufficient to justify a different rule for solicitors. I have already shown 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 manifestations 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, 28 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 appear 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 veridict 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 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 dated 15 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 RSC, Ord 18, r 19(1)(a), and (ii) being irregular in form. On 17 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’([1966] 1 All ER at p 469, [1967] 1 QB at p 453). 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 judge went on to consider whether, therefore, he should affirm the master’s order that the action be dismissed. He concluded ([1966] 1 All ER at p 469, [1967] 1 QB at p 453) that ‘if it were 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 on 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 ([1966] 1 All ER at p 480, [1967] 1 QB at p 471).

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 MR said ([1966] 3 All ER at p 661, letter e, [1967] 1 QB at pp 495, 496) that, if an action did 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, ([1966] 3 All ER at p 668, letter b, [1967] 1 QB at p 506) however, as did Danckwerts ([1966] 3 All ER at p 672, [1967] 1 QB at p 514) and Salmon LJJ ([1966] 3 All ER at p 680, [1967] 1 QB at p 526), that no such action did lie. Accordingly the application for leave to serve the re-amended statement of claim did not arise for decision. Salmon LJ added ([1966] 3 All ER at p 674, letter a, [1967] 1 QB at p 516), 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 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 RSC, Ord 20, r 5. 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 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. 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 on which it has been based possess today any current validity. Suffice it to say that the rule existed in 1942 when in Thornhill v Evans, Lord Hardwicke LC proclaimed ((1742), 2 Atk at p 332):

‘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 mortgagee 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 CJ in 1792 in Turner v Phillips, 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, was decided. It was stated ((1791), 4 Term Rep at p 318) that if their fees were other than honorary, physicians would be placed on ‘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, Bayley J stated ((1819), 1 Chit at p 551) that barristers cannot sue for their fees. In Poucher v Norman it was held ((1825), 3 B & C at p 745) 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 Veitch v Russell was decided. Lord Denman CJ said ((1842), 3 QB at p 936):

‘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 ((1842), 3 QB at p 936):

‘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 (Kennedy v Broun) 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 pertinancious Mrs Swinfen. Due to his exertions she retained possession of her estate. At the trial of the case before Sir Alexander Cockburn CJ and a jury the summing-up began with this passage ((1863), 13 CBNS at pp 690, 681):

‘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. The judgment of the court was delivered by Erle LJ who said that ((1863), 13 CBNS at p 727)

‘… 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 ((1863), 13 CBNS at pp 727, 728) 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’((1863), 13 CBNS at p 729); but the incapacity was only one ‘concerning litigation’((1863), 13 CBNS at p 737);

‘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 Erle CJ said ((1863), 13 CBNS at p 737):

‘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 R v Doutre, while it was accepted that when an English barrister is employed he is by necessary implication employed on 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 judgment of Erle CJ ((1863), 13 CBNS at p 727) and were of the opinion ((1884), 9 App Cas at p 751) that the decision could be supported by the usage and peculiar constitution of the English bar without attempting to rest it on general considerations of public policy.

The rule was again recognised in the Court of Appeal in Re Le Brasseur & Oakldy, 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, where it was held that a barrister and client were mutually incapable of entering into a binding contract of hiring. Again in Wells v Wells 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 on misapprehension, or at least are no longer in accord with modern developments 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, Bradish v Gee and Burness v Morris), 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 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 matter for scandal and impertinence and that in the result the plaintiff was ordered to pay the costs of the reference. Lord Kenyon CJ ((1791), Peake, at p 132) 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 the kind’. Lord Abinger CB gave a similar opinion in Perring v Rebutter ((1842), 2 Mood & R 429 at p 430). 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 ((1842), 2 Mood & R 429 at p 430) that such an action ‘was certainly not maintainable 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 ((1845), 12 Cl & Fin 91) Lord Campbell said that ((1845), 12 Cl & Fin at p 103) 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 & Mackersy. The Lord President (Lord Inglis), in the course of his judgment, said ((1876), 3 R (Ct of Sess) at p 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 honoraia 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 was considerably 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 acknowledge 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 fraudulently 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 exercise of the best of his judgment and in the honest exercise of his discretion.

In his direction to the jury Sir Frederic Pollock CB said ((1860), 5 H & N at p 916), 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, Sir Frederic Pollock CB 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 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. The court held that the conduct and control of a cause are necessarily left to counsel. They added ((1860), 5 H & N at p 921):

‘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 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.’

They also held ((1860), 5 H & N at p 923) 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 administration of justice require that he should not be subject to an action in respect of such complaints as ((1860), 5 H & N at p 921):

‘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 ((1860), 5 H & N at p 920) that an advocate takes on 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 case’. 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 barrister 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 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. And allegation was made in the action of careless, negligent and unskilful treatment. In summing up to the jury, Tindal CJ said ([1835–42] All ER Rep at p 422, (1838), 8 C at P at p

479):

‘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, and a surgeon does not 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 competent 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. 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, 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 to attorney liable to repay to his clients the damages and costs occasioned by his error. Lord Cottenham LC said ((1839), 6 Cl & Fin at p 210):

‘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 their 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 undertakes 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, 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 ((1840), 7 Cl & Fin at p 771):

‘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 R v Bateman, it was said in the judgment of the court in reference to the civil liability of a medical man ([1925] All ER Rep at p 48, 94 LJKB at p 794):

‘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 owes 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 rendered for reward.’

In Line with the principles illustrated by such cases as the above (and by such a case as Pippin v Sheppard, were the observations of Scrutton LJ in Everett v Grifiths ([1920] 3 KB 163 at p 193), and the observations in

your Lordships’ House in Banbury v Bank of Montreal ([1918–19] All ER Rep 1 at p 17, [1918] AC 626, at pp 682, 689) and in Hedley Byrne & Co Ltd v Heller & Partners Ltd.

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 LJ said in Re Le Brasseur & Oakley ([1896] 2 Ch at p 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 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.)

The immunity of barristers has been referred to in books of authority. In 3 Halsbury’s Laws Of England (3rd Edn) p 46, para 66:

‘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 Edn) p 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 R v Doutre).

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 R v O’Connell it was said by Crampton J ((1844), 7 ILR at p 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 on 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 all egig 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 recognised 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 LJ ([1966] 3 All ER at p 673, [1967] 1 QB at p 514).

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. Assuming, however, 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 undesirable. And supposing that after a criminal trial a person was convicted and then appealed unsuccesffully 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 demonstrate 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 on a trial would raise

speculation on 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 prosecuted, brought an action for negligence against prosecution 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.) 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 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 on 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. It would, in my view, be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appeals, there were litigation on litigation with the possibility of a recurring chain-like course of litigation. 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 express 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 on 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 disadvantages 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 overwhelmingly 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 impossible. 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 malicious 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 on reasons of public policy and, as was pointed out in Marrinan v Vibart ([1962] 3 All ER 380 at p 383, [1963] 1 QB 528 at p 536), the protection which the law affords to witnesses is not given as a benefit for them but is given for a higher interest, ie, 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 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 ((1883), 11 QBD at p 591) was dismissed. In his judgment Mathew J said ((1883), 11 QBD at p 594):

‘It may be inconvenient to individuals that advocates should be at liberty to abuse their privilege of free speech subject only to animadversion 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 Sir Balior Brett MR said ((1883), 11 QBD at p 603, [1881–83] All ER Rep at p 795, letter h):

‘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 M’Cewan, Watson v Jones, 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. The Earl Of Halsbury LC said ([1904–07] All ER Rep at p 3, letter i, [1905] AC at p 486) 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 established to be shaken. In that case it was clearly recognised ([1905] AC at p 487) that it is ‘public policy which renders the protection of witnesses necessary’. It must be recognised that the relationship between the advocate and the client differs from the 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 on 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 as 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?

The appellant 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 (ie, by payment of £2 4s 6d). The respondent then defended him. He was convicted. The only defence suggested by the appellant 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 police or by calling Rachman (the well known slum landlord) and Nash to prove that the appellant was not in the habit of using a knife (a piece of evidence whose admissibility I would doubt), and that the appellant 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 reasonable 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. The appellant had inflicted severe injuries on a man and emerged scatheless. The only real hope was that the appellant 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 than 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 the appellant’s story as a whole. Evidence that he was an accredited employee of Rachman might also have an alienating effect. And if Rachman 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 wishes 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 the appellant’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 the appellant an opportunity to amend the statement of claim (which he found almost unintelligible) and an amended statement of claim was put forward. In that the appellant attempted to insert an allegation that the respondent was ‘fraudulent’ in accepting the dock brief, a statement for which he have no justification whatever. The amended statement of claim was struck out. The appellant 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 the appellant 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 the appellant 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 fairly be tried. But when a party changes his story to meet difficulties, that fact is one of the matters to be taken into account.

In Lawrance v Lord Norreys - a case which was struck out under the inherent jurisdiction - Fry LJ said ((1888), 39 ChD at p 237):

‘Then in the next place we have the history of these pleadings. We have the evolution of the plaintiff’s cliam 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 by that history 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 Lord Denning MR 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 LJ said ([1966] 3 All ER at p 674, letter a, [1967] 1 QB at p 516):

‘I agree with DANCKWERTS, L.J. that it would be most unjust at this stage to allow this re-amended statment 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 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 considered 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, the appellant sought in an amended statement of claim to embellish his attack by alleging that the respondent 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, Lord Kenyon CJ 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 (crasse 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 form lack of argument.

In 1842 Lord Aninger CB in Perring v Rebutter held that an action for negligence would not lie against a certificated special pleader, and said ((1842), 2 Mood & R at p 430):

‘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, Lord Campbell siad ((1845), 12 Cl & Fin at p 103):

‘Against the barrister in England and the advocate in Scotland, luckily no action can be maintained.’

In Ireland in Mulligan v M’Donagh, Pigot CB giving the judgment of the full court, said ((1860), 2 LT at p 137):

‘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 Lord Chelmsford. 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 Sir Frederic Pollock CB Martin, Bramwell, Channell and Watson BB, was

((1860), 5 H & N at p 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 ((1860), 5 H & N at p 923):

‘no action will lie against counsel for any act honestly done in the conduct or management of the cause …’

In their view ((1860), 5 H & N at p 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 (Batchelor v Pattison & Mackersy) once again held that a claim for negligence would not lie against an advocate. The Lord President (Lord Inglis) there said ((1876), 3 R (Ct of Sess) at p 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 not 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 Kennedy v Broun which was concerned with counsel’s right to sue for fees; but as Erle CJ pointed out in giving the judgment of the court ((1863), 13 CBNS at p 730) those dicta ‘are all considered and overruled in the action of Swinfen v Lord Chelmsford’. Again ((1863), 13 CBNS at p 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 Hedley Byrne & Co Ltd v Heller & Partners Ltd has held that work may impose a liability for negligence though 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. The meticulous argument of Mr Kennedy went back in history to Roman times. Erle CJ (with whom were Williams, Byles and Keating JJ) said ((1863), 13 CBNS at p 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 not trace whatsoever 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 ((1863), 13 CBNS at p 736):

‘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 founded his reasoning on grounds which are clearly those of public policy. Inter alia he said ((1863), 13 CBNS at p 737):

‘The law trusts his 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 questioning; 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 these 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 him 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 R v Doutre). Nevertheless 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 (No 2), Italo-Canadian Corpn v Sandiford is consistent. In my opinion, it is firmly based on public policy.

In 1819, nearly fifty years before Kennedy v Broun, Best J in Morris v Hunt ((1819), 1 Chit at p 554) 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, he said ((1819), 1 Chit at p 554):

‘Nothing 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 on 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 LJ in Re Le Brasseur & Oadley ([1896] 2 Ch at p 494)(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 ([1896] 2 Ch at p 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 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. Lord Kenyon CJ who firmly held that barristers could not be sued, was also the judge who held in Wilkinson v Coverdale 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 Hedley Byrne it returned after its recession in 1893 in Le Lievre v Gould based on an erroneous view of Derry v Peek.

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 & Co Ltd v Heller & Partners Ltd 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 ([1963] 2 All ER at p 601, [1964] AC at p 514)). To say, however, that they are confined to such situations would be to take too narrow a view. The special circumstances, 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 not 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 (ie, 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 a 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 CJ held in Wilkinson v Coverdale 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 that a barrister could not be sued would therefore be equally applicable both before and after the decision in Hedley Byrne’s case.

It is erroneous to suppose that it is Hedley Byrne which has, for the first time since Le Lievre v Gould, laid down that there may be gratuitous responsibility in negligence resulting in purely economic damage. Hedley Byrne & Co Ltd v Heller & Partners Ltd, 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 Lord Ashburton, 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 eighteenth century (Wilkinson v Coverdale until the law became cramped by Le Lievre v Gould in 1893 or possibly by Derry v Peek 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 litigation and in his other non-litigious work as a barrister. In Mostyn v Mostyn the court expressly affirmed Kennedy v Broun 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, eg, 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. He has been held liable for failing to examine a witness before trial and had to pay 40s nominal damages (Hatch v Lewis). He has been held liable for allowing a case to be called on without ascertaining that a necessary witness was available (Reece v Rigby), and for employing an

expert witness, a drunken surveyor, without troubling to make sure that he had taken proper measurements (Mercer v King). 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 (Montriou v Jefferies). 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 Fergusson v Lewis 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). On an examination of witnesses on commission when intending to cross-examine by interrogatories 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, 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 ((1883), 11 QBD at pp 593, 594)’his words were protected from being made the subject of an action, by reason of his privilege as an advocate’. Mathew J ((1883), 11 QBD at p 591) 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 Sir Baliol Brett MR said ((1883), 11 QBD at p 599, [1881–85] All ER Rep at p 792):

‘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 ((1883), 11 QBD at p 600, [1881–85] All ER Rep at p 793):

‘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. Sir Baliol Brett MR 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 ((1883), 11 QBD at pp 603, 604, [1881–85] All ER Rep at p 795):

‘A counsel’s position if 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 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 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 today, 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 independence 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 considered 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 have the issue re-tried, to prove that the witness was untruthful, and to get damages against him for the loss he has negligently or untruthfully 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, citing many English authorities said ((1940), 64 CLR at p 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 or 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 lay 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. Then in Hargreaves v Bretherton, Lord Goddard CJ in holding that an action for damages for perjury would not lie against a witness said ([1959] 1 QB at p 52, [1958] 3 All ER at p 124):

‘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 the courts, which would be a most unfortunate result.’

The law has also 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 M’Ewan, Watson v Jones. The Earl Of Halsbury LC there said ([1905] AC at p

487, [1904–07] All ER Rep at p 4):

‘It is very obvious that the public policy which renders the protection 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 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 hardships 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, even though corrupt (Scott v Stansfield).

Moreover 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 - 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 protect 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 coincidences of fate can cause a miscarriage 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. 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 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 professional 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 importance 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) Mathew J there said ((1883), 11 QBD at p 594):

‘It may be convenient to individuals that advocates should be at liberty to abuse their privilege of free speech, subject only to animadversion 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 subsequent 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 independent 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 likewise from liability for wrongly causing such contentions to be put forward by his advocate, great as may be the harm that they may cause. Will it, however, 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 connexion 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. 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 the appellant 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 Sir Baliol Brett MR and the Lord President, (Lord Inglis) pointed out. 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 biased 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 as an end.’

It is easier, pleasanter and more advantageous profesesionally 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. It is also a judge’s (or jury’s) solemn duty to find that out by a careful and unbiased 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 prson 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 counsel for the appellant. 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 inconsiderable difficulties. It is also 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 reasonably.

I agree with Erskine that it would cause irreperable injury to justice if there were any departure form 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. 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, counsel for the appellant 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’. Counsel for the respondent emphasised these difficulties. Perring v Rebutter 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 independence; 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 independent 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 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 Re Le Brassur & Oakley, a decision of the Court of Appeal, and rely on the observations of Lindley LJ when he said ([1896] 2 Ch at p 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 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 neglience are correlative. He would find support, too, for this view in other cases, such, for example, as the Irish case of Robertson v Macdonogh and in the very recent case of Lopes v Adams and Vanier ((1965), 9 WLR 183 at p 187) decided in the Supreme Court of British Guiana. The text books, too, would support him. See, for example, 3 Halsbury’s Laws Of England (3rd Edn) p 46, para 66, and Winfield On Torts 14th Edn, p 185, though doubting its justification (the last edition has been altered as a result of Hedley Byrne & Co Ltd v Heller &

Partners Ltd, and Salmond On Torts, 14th Edn, p 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 this fees. This has been established for nearly two hundred years and it is usually put on 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 ((1742), 2 Atk at p 332), per Lord Mansfield LJ and Re May, per Kindersley, V-C). It is true that Bayley J in Morris v Hunt ((1819), 1 Chit at p 551) put it on a more realisitic 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 ((1819), 1 Chit at p 554) 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 nonlitigious work (see Mostyn v Mostyn) 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 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). This incapacity to contract is important, for counsel for the respondent founds an argument on 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); Re Sandiford (No 2), Italo-Canadian Corpn v Sandiford).

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 Baradish v Gee; but since those days it is quite clear that no one has ever successfully sued a barrister for negligence. As long ago as 1791 Lord Kenyon CJ in Fell v Brown 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); in Scotland Purves v Landell and in Ireland Mulligan v M’Donagh, and was, in my opinion, subject only to the views of your lordships, settled in the case of Swinfen v Lord Chelmsford. Nevertheless, counsel for the appellant is entitled to urge that this so far admitted immunity rests on 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 on those services or on 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 Lord Kenyon CJ in the great case of Wilkinson v Coverdale 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. See also Tindal CJ in Lanphier v Phipos ([1835–42] All ER Rep at p 422, (1838), 8 C & P at p 479), who stated the rinciple in most general terms:

‘Every person who enters into a learned profession undertakes to bring to the exercise of its 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 Lord Ashburton, where Lord Shaw Of Dunfermline stated the principle ([1914–15] All ER Rep at p 62, [1914] AC at p 972), though basing it on innocent misreparesentation by an adviser on whose advice another was entitled to rely; Banbury v Bank of Montreal where Lord Atkinson ([1918–19] All ER Rep at p 18, [1918] AC at p 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 Hedley Byrne & Co v Heller & Partners, Ltd, where Lord Morris Of Borth-Y-Gest, summed it up in this way ([1963] 2 All ER at p 594, [1964] AC at pp 502, 503):

‘… if someone possessed of special skill undertakes, irrespective of contract, to apply that skill for the assistance of another person who relies on 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 I may, however, mention some duties cast on 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 counsel 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 prejudical to his client’s case (see R v Neal). 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 LJ in Munster v Lamb ((1883), 11 QBD at p 607, [1881–85] All ER Rep at p 797)’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 practised 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 of judgment; and negligentia or indeed crassa negligentia 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.

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 administration of justice as a whole on 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 litigation in the public interest. That is sufficient to dispose of this appeal.

However, your lordships have had some discussion on 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 where Hagarty J said ((1863), 22 UCR at p 516):

‘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 which I have given is in any event immune, the solicitor is in breach of contract. See Fergusson v Lewis. 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 Scudder v Prothero & Prothero was probably wrongly decided on its facts. Lord Pearce in his opinion 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 that 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 negligently 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 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 on the relevant facts, he failed to plead the relevant Statute of Limitations. Would a solicitor be entitled to a similar immunity (see Fletcher & Son v Jubb, Booth & Helliwell)?

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 that 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 and 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 the 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, conveyances, real property contracts, commercial contracts, charterparties 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. In this class must be included, I think, 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 that this is a most difficult matter; I find it very difficult to see on 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 Perring v Rebutter has been quoted as an authority that counsel’s immunity extends beyond litigious matters. 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 pleader would fall within it. Nor for my part can I derive any assistance from Mostyn v Mostyn 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 on counsel in respect of non-litigious matters that was inferentially pointed out in Nocton v Lord Ashburton 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 & Co Ltd v Heller & Partners Ltd when properly understood should cause all the excitement which of course it has done within the profession today.

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 All ER 330 at p 332, [1951] 2 KB 759

at p 764) 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.

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; Viner’s Abridgment (2nd Edn), Vol 6, p 478; Blackstone’s Commentaries (18th Edn), Vol 3, p 28:

‘… it is established with us, that a counsel can maintain no action for his fees; which are given, not as locatio vel conductio, 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 Phillipps; Morris v Hunt; Kennedy v Broun; Mostyn v Mostyn; Re Le Brasseur & Oakley; Wells v Wells; Re Sandiford (No 2), Italo-Canadian Corpn v Sandiford. There was also in Ireland Robertson v Macdonogh, citing with approval and following the judgment in Kennedy v Broun.

The immunity of a barrister from legal liability for breach of his undertaking to appear for the client and from liability for negligence in the conduct 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, eg, in Bradish v Gee, 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; Perring v Rebutter; Swinfen v Lord Chelmsford; cf, Re Le Brasseur & Oakley ([1896] 2 Ch at p 494). The same position has been recognised in Scotland and Ireland. Purves v Landell; Batchelor v Pattison & Mackersy; Mulligan v M’Donagh. The immunity is from tortious as well as contractual liability. In this connexion the view taken by the court in Perring v Rebutter ((1842), 2 Mood & R at pp 429, 430) 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 allegations 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 my 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 Chelmsford 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 judgment that the reasoning should be understood as ruling out tortious as well as contractual liability. In Swinfen v Lord Chelmsford after counsel had cited in argument certain cases relating to liability for negligence in performing gratuitous services, Bramwell, B., said ((1860), 5 H & N at p 911): ‘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 & Co Ltd v Heller & Partners Ltd. I do not accept the argument, though it was cogntly 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. On 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 ((1860), 5 H & N at pp 920, 921):

‘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 … 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 ((1863), 13 CBNS at pp 732, 733) 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 that the most important passages in the judgment are these ((1863), 13 CBNS at pp 727, 729, 736, 739):

‘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 proportionably great …

‘… ((1863), 13 CBNS at p 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. Kensington Union Guardians); and the barristers who contracted to serve as arbitrators - Virany v. Warne), Hoggins v. Gorden, Marsack v. Webber; 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., pp. 32, 160), - made contracts not concerning litigation, and therefore not within the incapacity here in question …

‘((1863), 13 C.B.N.S. at p 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.

‘((1863), 13 C.B.N.S. at p 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 & Mackersy, 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 decision and refused the appeal. The Lord President (Lord Inglis) in his judgment dealt both with the position of the advocate and with the position of the agent. As to the advocate he said ((1876), 3 R (Ct of Sess) at p 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 ownes 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 …’

In Re Le Brasseur & Oaley 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 ([1896] 2 Ch at p 489) and the Court of Appeal. Lindley LJ said ([1896] 2 Ch at p 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 LJ said ([1896] 2 Ch at pp 495, 496):

‘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 recoverable. 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 LJ ([1896] 2 Ch at p 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 Lindley LJ in Re Le Brasseur & 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

opinions 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 litigation. There is a case Mostyn v Mostyn, 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 the could not have been sued for negligence in doing such work. Giffard LJ however, in giving judgment ((1870), 5 Ch App at p 458) did not draw that conclusion, and did not go deeply int the question involved. While expressing ((1870), 5 Ch App at p 459) warm approval of the judgment 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 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 incapacity 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

instructions and to exercise due and skill in doing so. I am not aware for 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 necessarily insoluble; but I think that 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.