1 QB. QUEEN’S BENCH DIVISION [courT OF APPEAL] RONDEL vy. WORSLEY [1965 R. No. 445] Barrister—Negligence—Advocate, as—Whether minister of justice— Whether action for negligence will lie at suit of client—Basis of immunity. Barrister—Duty of court—Nature of —Whether minister of justice. Negligence—Duty of care to whom?—Advocate—Barrister—Conduct of case in court—W hether client may sue for negligence. Barrister—Client—Duty to accept—Whether liable to client negligence. Solicitor—Negligence—Advocate, as—Whether liable to client. Public Policy—Administration of Justice—Immunity from action for conduct in court—Barrister sharing immunity—W hether immunity extending to advisory work unconnected with proceedings in court. In May, 1959, the plaintiff was tried on charges of causing bodily harm to one M. with intent to do so. He pleaded that the acts (which he did not deny) were justified. His defence was undertaken on a dock brief by the defendant, a barrister-at-law; but he was convicted and sentenced to imprisonment, and his application for leave to appeal, which included complaints against his counsel, was refused. Nearly six years later, in February, 1965, he issued a writ claiming “damages for professional negligence” against his counsel, followed by a statement of claim drawn by himself which was in all respects defective and which the master ordered to be struck out. The plaintiff appealed from that order to Lawton J., who after hearing argument on behalf of the Official Solicitor as amicus curiae on the question whether an action for negligence could lie against a barrister, and after giving the plaintiff full opportunity to amend his statement of claim, dismissed the action, expressing the opinion that, for reasons of public policy, an advocate, whether barrister or solicitor, was immune from actions for negligence in and about the conduct of a client’s case in court. ‘The plaintiff, still in person, was granted leave to appeal and thereafter was assisted by an independent solicitor who not only prepared a closely argued “ brief” on the point of general interest for consideration by the Court of Appeal, but also drafted, during the hearing of the appeal, a reamended statement of claim in negligence which was technically acceptable; and the plaintiff asked for leave to deliver that reamended statement of claim:— Held (per Danckwerts and Salmon L.JJ.) that leave to deliver the reamended statement of claim should be refused; 443 1965 Nov. 15, 16, 17, 185 Dec. 24 ‘LawrTon J. 1966 June 13, 14, 16; Oct. 20 Lorp Davina in > MR. Danckwents and SALMON Lay.1965 Rondel ve Worsley QUEEN'S BENCH DIVISION [1967] that the plaintiff's own statements of claim be struck out as defective; and that the action be dismissed (post, pp. 507D, 516c). Held, further, that a barrister was immune. from an action for negligence at the suit of a client in respect of his conduct and management of a cause in court. That immunity was not based on the absence of contract between barrister and client but on public policy and (per Lord Denning M.R. and Danckwerts L.J.) long usage in that (a) the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently; (b) actions for negligence against barristers would make the retrying of the original actions inevitable and so prolong litigation, contrary to the public interest; and (c) a barrister was obliged to accept any client, however difficult, who sought his services. Fell v. Brown (1791) Peake 131; Swinfen v. Lord Chelms- ford (1860) 5 H. & N. 890; Kennedy v. Broun (1863) 13 C.B.N.S. 677; and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C, 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L(E,) considered. Per Lord Denning M.R. and Danckwerts L.J. (Salmon LJ. dissenting) (1) The immunity of a barrister from actions for negli- gence extends to advisory and conveyancing work having no connection with proceedings in court and is founded primarily ‘on long usage which is accepted by those who instruct barristers (post, pp. 505F—S06F, 512c—513p, 514c). Perring v. Rebutter (1842) 2 Mood. & R. 429 applied. (2) Immunity against actions for the tort of negligence does not extend to solicitors, even when they act as advocates in court, for (@) the relationship of solicitor and client is contractual; (b) solicitors can reject clients whom they consider tiresome or undesirable; (c) historically the positions of the attorney and the barrister were wholly different (post, pp. 5042, 513c-F); and (d) (per Danckwerts L.J.) the barrister faces hazards quite unknown to the solicitor’s profession (post, p. 5118). Per Salmon LJ. Public policy does not require that a barrister shall be immune from action for negligence in relation to matters unconnected with cases in court, for if he fails to exercise the ordinary care and skill that can reasonably be expected of him, he should be and is in no better position than any other professional man (post, pp. 5248—525p). Per Danckwerts L.J. No precedent should be claimed for the reception by the court in this case of the typewritten brief, which may be appropriate to the procedure in the United States of America but not to the courts in England, and of the prepared reply on law read by the plaintiff, particularly where the plaintiff's case was adequately put by counsel for the Official Solicitor as amicus curiae (post, p. 507B-D). Decision of Lawton J. infra; [1966] 2 W.L.R. 300; [1966] 1 All E.R. 467 affirmed.1 QB. QUEEN'S BENCH DIVISION INTERLOCUTORY APPEAL from Master Lawrence. On February 15, 1965, the plaintiff, Norbert Fred Rondel, issued a writ claiming “damages for professional negligence ” against the defendant, Michael Dominic Lawrence Worsley, barrister-at-law, in respect of the defendant’s conduct of the plain- tiff's defence on criminal charges at the Central Criminal Court in May, 1959, when the defendant was engaged on a dock brief during the hearing of the charges on which the plaintiff was found guilty and sentenced to 18 months’ imprisonment. The plaintiff delivered a statement of claim drawn by himself. On May 17, 1965, the defendant applied to Master Lawrence in chambers for an order, inter alia, that the statement of claim be struck out as (® disclosing no reasonable cause of action, and (ii) being irregular in that it did not comply with R.S.C., Ord. 18, rr. 6 (ii) (a) and (3), 12 and 15 (3). The master, having given the defendant leave to amend his summons to include a prayer that the action be dismissed with costs, ordered that the statement of claim be struck out and the action dismissed with costs. The plaintiff appealed to Browne J. in chambers. The judge ordered that the hearing be adjourned and heard in open court, since the appeal raised a point of general public interest, namely, whether an action for negligence could lie against a barrister at the suit of a client for negligence in and about the conduct of the client’s case in court; and at the request of the judge the Official Solicitor as amicus curiae instructed counsel to bring to the attention of the court all those authorities and arguments which would help in finding out the true juridical nature of the relationship between barrister and client in and about the barrister’s conduct of the client’s case in court. When the hearing was ready to be resumed, Browne J. was not available, and it came on for hearing before Lawton J. Patrick O’Connor Q.C. and L. Stranger-Jones for the Official Solicitor as amicus curiae. Three points must be considered. First, public policy, which may require that barristers be immune from actions for negligence and it must be considered on what terms a barrister accepts responsibility. He owes a duty not only to his client but also to the court. Secondly, the advantages of a free and independent bar. A barrister must be free to conduct a case in court as he thinks fit, again both in accordance with his client’s interests and his duty to the court. Thirdly, the difficulties of trying an action for negligence against a barrister. [Reference was made 445 1965 Rondel y. Worsley446 Rondel Worsley QUEEN'S BENCH DIVISION [1967] to Swinfen v. Lord Chelmsford and the references to the Year Books of Henry VI in that case ' and Kennedy v. Broun.*] A barrister is incapable of making a contract for professional services: see Kennedy v. Broun,? per Cockburn C.J.° and Macauley Q.C+ The main point of the plaintifi’s argument there is part 3,° which was followed by argument by defence counsel on the interests of public policy.* Reference is made to Erle C.J.’s judgment,’ and to that part of the judgment * referring to dicta cited by the plaintiff as anecdotes, which casts doubt on the weight to be attached to this authority. The mere fact that a person acts gratuitously does not protect him from a charge of negligence. Comparison may be made with physicians, who can be sued for negligence yet when they become fellows cannot sue for fees. In Mostyn v. Mostyn® two points arise: first, whether the passage approving * Kennedy v. Broun™ is obiter or not, and, secondly, if it is not obiter, whether it is binding on this court. That case decided that counsel could not sue for fees. Cases before Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.” must be considered. In Moor v. Row ™ a bill brought by a counsellor-at-law against a solicitor for fees was dismissed on demurrer. In Fell v. Brown ** it was held that no action lay against a barrister for mere negligence; that was an unarguable case without authority and was concerned only with settling a pleading. In Turner v. Philipps ** it was held that no action lay against a barrister to recover a fee paid to him to attend the trial of a cause which he failed to attend. Chorley v. Bolcot'* was an analogous case in which it was held that a physician could not, any more than a barrister, maintain an action for fees. Morris v. Hunt *" was con- cerned with a review of taxation involving counsel’s fees. In Perring v. Rebutter,* an action for negligence against a special pleader, Lord Abinger C.B. said ** that the action could not be maintained. In Purves v. Landell,* a Scottish appeal in the House of Lords concerning the liability for improperly conducting a suit of 1 (1860) 5H. & N. 890. 32 [1964] A.C. 465; [1963] 3 2 (1863) 13 C.B.N.S. 677. w. 101; [1963] 2 All ER. 575 * Ibid 680, 681. i. 4 Ibid. 682, a ae) 1 Rep.Ch. 38; 5 Car. 1, fol. 1 fipp Peake 131. 48 (1792) ae 166. 5 Ibid 19 (1791) 4 T. 1 io se "3 tn ee 457. ie 1 Chitty "3a, 30 Toi 1842) 2, Mood. & R. 429. n 3 CBNS. 677. Ibid. » (84s) 2 Cl. & Fin. 91.1 QB. QUEEN'S BENCH DIVISION a writer to the signet, Lord Campbell said" that there was no distinction between the law of England and the law of Scotland, and “* Against the barrister in England, and the advocate in’ Scotland, luckily, no action can be maintained.” In Re May,” a petition by a barrister for payment of fees from a solicitor was dismissed. Mulligan v. M’Donagh** was an action for negligence by a client against a member of the Irish Bar for not attending in court and which was held not to be maintainable. In Robertson v. Mac- Donogh* a claim in contract against an Irish barrister for not attending in court was.dismissed on the ground that a barrister cannot contract. In In re Le Brasseur and Oakley** the Court of Appeal agreed that counsel’s fees were payable as a matter of honour. These cases show that barristers are not liable in negli- gence and that this immunity is probably bound up with their inability to sue for fees and to contract. IE it is right that a barrister cannot enter into a contract, the question arises whether or not he can, by a side wind, assume a similar liability and be sued in tort. Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.** calls attention to, but has not altered the position of, a barrister in court, so another reason must be sought for his immunity. This appears to be public policy and his inability to contract, but see the words of Lord Morris of Borth-y-Gest.?” , The acceptance of a dock brief in accordance with the duty imposed by the etiquette of the profession to remain in court when offering services for a known sum does look very like a contract. There is direct payment to a barrister without the intervention of a solicitor. What is the special status of barristers and why has it arisen? The authorities appear to show that they cannot be sued even for complete dereliction of duty. The fundamental basis of the immunity must be considered. Does public policy require that barristers should be immune from actions for negligence? See Kennedy vy. Broun** on the moral duty of a barrister. It is his duty to bring to the attention of the court all relevant authorities, whether for or against his client’s case. A barrister cannot allow a defendant for whom he acts to commit perjury. He must never be a party to deceiving the court, even if his client would obtain some 21 12 Cl. & Fin. 91, 102, 103. a [1964] A.C. 465, 469, 480, 481, 22 (1858) 4 Jur.N.S. 1169, 28 (1860) 2 L-T.N.S. 136. SS Ibid. 5 zi 502, 503. 24 (1880) 6 LR 38 13 CBN'S. 677, 737. 33. 25 [1896] 2 Ch, 487, 493, 495, ae 447 Rondel v Worsley448 Rondel v Worsley QUEEN'S BENCH DIVISION [1967] _ advantage. He must not attack the character of others unless televant to his case. Relevant cases since Hedley Byrne & Co. Ltd. v. Heller & Partners Lid.* are Clark y. Kirby-Smith,° but cases dealing with solicitors present a difficulty because a contractual relationship arises without payment, and Bagot v. Stevens Scanlan & Co. Ltd.,** concerning an architect. Three cases are referred to on the status of the Court of Exchequer sitting in banc: In re Hastings (No. 2),°* In re Hastings (Wo. 3),°° and Huddersfield Police Authority v. Watson **; and see Pledge v. Carr*® on the position of the Court of Appeal in Chancery. Graham Swanwick Q.C. and Reginald Batt for the defendant. The master was correct in his decision that a barrister is not and never has been liable for an action for negligence regarding the conduct of his client’s case in court. That is the only issue here. The court is not asked to consider the conduct of solicitors, for the Position between solicitor and client arises ex contractu and is not the same as an assumption of responsibilities in tort. A barrister is obliged, by etiquette, to accept briefs in any court in which he practises and a dock brief in particular. The law is as stated in Halsbury’s Laws of England, 3rd ed., Vol. 3 (1953), p. 46. Public policy requires that a barrister be immune from an action for negligence regarding the conduct of his client’s case in court. No case has been cited where a barrister, in the modern sense and acting as he does since barristers have been established as separate from solicitors, has ever been sued successfully for negligence. This cannot be because there have been no dissatisfied clients. The immunity does not arise from the self-ordinance of a barrister nor because the relationship of barrister and client is not sufficiently close nor because of the nature of the damage which might flow. It is because the relationship, by centuries of usage and as a matter of public policy, has been recognised as giving rise to moral and not legally enforceable duties. Relationships are known to the law which are not legally enforceable, for instance, family relationship, military relationship, a judge in a civil cause. Another class clearly excluded by Hedley Byrne & Co. Ltd. y. Heller & Partners Ltd.** 29 11964] A.C. 465, 38 [1959] Ch. 368. 30 [1964] Ch. 506; [1964] 3 84 [1947] KB, 842; 63 TLR. 415; W.LR, 239; [1964] 2 AILE.R, 835. [1947] 2 Ail E.R. 193, D.C. 51 [1966] 1 QB. 197; [1964] 3 3 [1895] 1 Ch. 51, C.A. LR. 1162; [1964] 3 All E.R. 577. 38 [1964] A.C. 465, W.LR. 1162; WR. 82° [1959] "1 Q.B. 358; [1958] 3 WER 768; [1958] 3 All E.R. 625,1 QB. QUEEN’S BENCH DIVISION is where the relationship is by contract. This is the justification for the distinction between a barrister and a solicitor or an architect: see Clark v. Kirby-Smith*" and Bagot v. Stevens Scanlan & Co. Lid.** It is the incapacity to contract that distinguishes a barrister from other classes which have no immunity. Doctors may either Operate according to usage and may not sue for fees or they may expressly contract to do so, but they are always held liable in the exercise of their skill. [Reference was made to Banbury v. Bank of Montreal,** cited with approval in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.*”| There is a long line of authority leading up to these two cases. The first is Moor v. Row,** which established that a barrister could not sue for fees: see Chorley v. Bolcot.? Public policy is the basis for the special relationship between barrister and client and public policy should not be abandoned unless a new and relevant basis is substituted. Incapacity to sue for fees cannot be the only reason for the immunity, and it should not be assumed that the immunity is founded on a fallacy. The citations from the Year Books of Henry VI should be disregarded, for they merely reflect the views of lawyers held at the time. Equally, the citations from Kennedy v. Broun‘ should be disregarded, being dicta. Where would it stop if a barrister were bound by instructions from a client at the price of an action for negligence if he would not comply? Analogous considerations of public policy have given rise to the rule in libel actions that a witness who commits perjury and thus defamation is privileged, the reason being that otherwise witnesses would be discouraged from coming forward to give evidence: see Hargreaves v. Bretherton.* Whatever may have been the position in the fourteenth and fifteenth centuries, by 1791 it was said to be unarguable that an action for negligence could be maintained against counsel. Swinfen v. Lord Chelmsford, which is binding on this court, was the third direct decision on this point, the previous two being Fell v. Brown, which indicated that a barrister was in a different position from a physician and in which an action for negligence against a barrister was dismissed, and Perring v. Rebutter *"; with one Irish decision, Mulligan v. M’Donagh,** and one obiter dictum in the House of 81 [1964] Ch: 506. 42 13 C.B.N.S. 677, 143 ER. 268, 38 [1966] 1 Q.B. 197. , 289. ee 626, 689,34 TLR. 44 [1959] 1 Q.B. 45; [1958] 3 518, H.L(E.). WLR. 463; [1958] 3 AILE.R 122, 48 [1964] A.C. 465, 495, 45°5 H. & N. 890. 41 1 Rep.Ch. 38. 4° Peake 131. 424 TR. 317. 4 2 Mood. & R. 429. 492 LIENS, 136, 449 1965 Rondel v ‘Worsley450 1965 Rondel % Worsley QUEEN’S BENCH DIVISION [1967] _ Lords in Purves v. Landell*® Turner v. Philipps, an action for fees, never reached a decision, but indicated that no action lies against a barrister for not attending in court. The words of Pollock CB. in Swinfen v. Lord Chelmsford apply today.» The authorities since 1791 show that the immunity of barristers arises in the interests of public relationship, public policy and usage. Kennedy v. Broun** was an action for fees and was not concerned with the liability of counsel, and reference is made to the words of Erle C.J.°* Robertson v. McDonogh** shows that a barrister is incapable of any binding obligation. In In re Le Brasseur and Oakley ** an attempt was made to say that no action could be maintained for fees, but that, in an appropriate case, a set-off could be made against solicitors’ fees, and indicated that once a contract is allowed with mutual obligations, if a right to sue is gained the right to immunity is lost. Matthews v. Munster ** shows that there is immunity in the conduct of a cause and all that is incidental to it. No decision has been made in which the position and etiquette of the Bar has been fully established. Comments from the Year Books, if correct, may prevent a submission that there has been a direct line of immunity for counsel. The Year Books contain isolated dicta of judges of first instance, but these cannot be relied on as accurate, and the direct line of cases since 1791, although not indicating the foundation of the immunity, indicate that the founda- tion is so well laid that it need not be considered. Public policy requires the immunity of the Bar from actions of negligence, first, because of the direct line of authority since Swinfen vy. Lord Chelmsford.5’ Secondly, because there is no case in which a barrister has ever been sued successfully, and this cannot be because clients have always been satisfied. Thirdly, no such case has ever been taken to appeal. Fourthly, because this immunity has been recognised for at least 170 years, and fifthly, because public policy today requires this immunity more than ever. One supplementary ground of immunity is the fact that a barrister cannot contract, one of the factors of his especial relationship with his client. Another supplementary ground is that of usage, which prevents the inference that a barrister under- taking a case assumes a legal responsibility as distinct from a moral responsibility. The immunity of barristers developed and 4 12 Cl. & Fin. 91. 4 6 LRIr, 433, 50 Peake 166. 55 [1896] 2 Ch. 487, 489, 490, 494. 51 § H, & N. 890, 918, 919, 920. 56 (1887) 20 Q.B.D. 141; 4 T.LR. 52 13 C.B.N.S. 677. 9 bid. 731. 51 SH. & N. 890.1 QB. QUEEN'S BENCH DIVISION was continued at a time when the liability on the basis of the assumption of responsibility by a person professing skill for the performance of a service, if followed by the negligent performance of that service, was a recognised part of our law and, in particular, was applied to closely parallel cases of physicians rendering services for no payment. The ratio of decided cases should be considered, and for the sake of brevity are taken from the judgments in Hedley Byrne & Co. Ltd. y. Heller & Partners Ltd.** {Reference was again made to Banbury v. Bank of Montreal.) Chorley v. Bolcot decided that a physician could not sue for fees unless he had made a contract: see also Seare v. Prentice, Lanphier v. Phipos * and Hall vy. Semple.° The courts were then holding doctors and physicians liable, even without payment, at a time when they were holding that barristers were exempt. Two schools of thought exist on the interests of public policy. One warns against new categories, e.g., Mogul Steamship Co. Ltd. v. McGregor Gow & Co.,** that is to say, not against public policy being extended but against its introduction into fresh classes of contract. The other recognises the fact that new categories are constantly being made, ¢.g., Wilson v. Carnley.** [Reference was made to the authorities cited in Naylor, Benzon & Co. Ltd. v. Krainische Industrie Gesellschaft.°*] The submissions are summarised as follows. First, barrister- advocates are a class with a unique complex of duties to their clients and to the court. A barrister is to some extent a minister of justice and cannot, therefore, have regard solely to the instructions or even always to the narrow interests of his client. It is his duty to bring forward all relevant authorities whether for or against his client’s case; it is his duty not to permit his client or a witness to commit perjury; it is his duty, where his client admits his guilt, to plead guilty and not to waste money or time; it is his duty not to be a party to any deception of the court; it is his duty not to attack opposing parties or witnesses unless the attack is relevant to an issue in the case or unless he has a sound basis and instructions for the attack. Reference is made to Boulton’s Conduct and Etiquette at the Bar, 4th ed. (1965), pp. 17, 72, 73; it is prosecuting counsel’s duty to inform the defence of any previous convictions of witnesses. 58 [1964] A.C. 465, 494, 495, 510, = [1892] A.C. 25, 45; 18 TLR. . Gig AC. 626. eel 1 KB. 729, 737; 24 8 GG) 8 Rest 348, “6 [1918] 1 K-B, 331, 342, 343; 34 #2 (1838) 8 C. & P. 475, 479. TLR. 536, C.A. #9 (1862) 3 F. & F. 337, 352, 353, 354, 355. 451 1965 Rondel vy Worsley452 Rondel ¥ Worsley QUEEN'S BENCH DIVISION [1967] Secondly, it is a barrister’s duty to accept briefs, including dock briefs. A barrister cannot enter into a contract of service on the one hand and sue for fees on the other. Quick decisions must be reached jin court, and a barrister should not be inhibited from taking a free and independent decision, even against immediate instructions, and should not be afraid of freely meeting his obliga- tions. The conduct of cases in‘court would become impossible if a barrister had to take instructions every time a new situation arose. He might, in some cases, be tempted to take the safe course, which might not be in the interests of his client and of the court. This would upset the whole basis of the administration of justice and of the rule of law. Interest reipublicae ut sit finis litium. Unless barristers were immune from actions of negligence, the administration of justice would be interfered with, and a barrister might otherwise look over his shoulder and not take the forthright path he is expected to take with due regard to his duties. On the question of usage see Reg. v. Doutre‘ and Leslie v. Ball.* Cur. adv. vult. December 21. LawTon J. read the following judgment. This is an appeal by the plaintiff against an order made by Master Lawrence on May 17, 1965, ordering that the statement of claim be struck out and that the action be dismissed. The appeal came on for hearing before Browne J. on June 16, 1965. The plaintiff appeared in person, as he has done before me. After Browne J. had heard part of the argument he appreciated that the appeal raised a point of general public interest, namely, whether an action for negligence can lie against a barrister at the suit of a client for negligence in and about his conduct of the client's case in court. Browne J. thought it undesirable that a case raising such a point should be heard behind the closed doors of chambers. Accordingly he adjourned the hearing of the appeal into open court. He felt, too, that justice would not be done, nor be seen to be done, if a point affecting the Bar was not fully argued; and it was clear that the plaintiff was incapable of doing his own arguing. Accord- ingly he asked the official solicitor to instruct counsel to act as amici curiae and to bring to the attention of the court all those authorities and arguments which would help in finding out the true juridical nature of the relationship between barrister and client in and about the barrister’s conduct of the client’s case in 87 (1884) 9 App. Cas. 745, P.C. a (1863) 22 U.CR(Q.B) 512,1 QB. QUEEN’S BENCH DIVISION court. The official solicitor agreed to do so and instructed Mr. P. O'Connor Q.C. and Mr. L. Stranger-Jones. When the hearing of the appeal was ready to be resumed in court, Browne J. was not available. It was allotted to me: I started ‘afresh. The plaintiff was unable to express himself clearly, either orally or in writing. In these circumstances I decided that he should be given an opportunity of putting his statement of claim into a more intelligible shape than it was in when the master had it before him. I explained to him what a statement of claim should have in it and invited him to redraft what he had delivered. He did so, and on'the second day of the hearing he handed me a document which he said he wanted treated as his statement of claim. I allowed this document to stand as his statement of claim, regarding it as an amendment of that which he had first delivered. I refused, however, to have the word “ fraudulantly” [sic] in the amended statement of claim as it was clear from what he said that he was not alleging that the defendant had acted in any way which a court would regard as fraudulent. He seemed to think that this word was some kind of legal lubricant which made the words of his statement of claim read better. Counsel for the defendant raised no objection to the course which I took. The amended statement of claim is well-nigh unintelligible. It would be impossible to try, on this pleading, any claim which the plaintiff may have; and it would be unjust to the defendant to call upon him to deliver his defence to it; he would not know where to start. It follows that the amended statement of claim must be struck out as-‘not complying in essential matters with the Rules of Court and being embarrassing both to the court and to the defendant. The next problem to me was whether I should dismiss the action because of the plaintiff's failure to comply with the Rules of Court as to pleadings. If it was possible to salvage something out of the plaintiff's messy verbiage which would support a cause of action it seemed to me just that he should be given yet another chance to get his claim in order. As far as I could make out, the plaintiff has four complaints against the defendant’s conduct of a case in which he acted as the plaintiff's counsel. It seems that at some time in the past which was not specified in the statement of claim, but which I was told was in the summer of 1959, the plaintiff was committed for trial at the Central Criminal Court on a charge which involved an 1 QB. 1967. 30 453 1965 Rondel v Worsley LawTon J,454 Rondel ve Worsley Lawton J. QUEEN'S BENCH DIVISION [1967] allegation of violence. The plaintiff did not tell me the exact mature of this charge and I refused to allow counsel for the defendant to do so. The plaintiff wanted legal aid and made an application for it to the Recorder of London, Sir Gerald Dodson, in open court. The recorder refused it, but in doing so he said, according to the plaintiff: “ You can have a dock brief if you have £2 4s. 6d. Mr. Worsley ”—the defendant—‘is able and experi- enced.” The plaintiff decided to have a dock brief and he chose the defendant as his counsel. He now complains that the defendant behaved improperly and prejudiced his chances of acquittal by not dissenting from the recorder’s description of him as “ able and experienced.” The mere statement of the complaint reveals what rubbish it is. The court and the defendant ought never to have been troubled with it. His next complaint concerns a witness called Miss Hogan, who was called on his behalf. He says that the defendant allowed her to be (and I quote from his amended statement of claim) “ unjustly discredited and ridiculed” and he neglected (and again I quote) “to neutralise the prosecution counsel's relatively shattering revelation that Miss Hogan could not see into the passageway and letting this irrelevant nonsense overshadow 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.” As far as I could discover from the plaintiff his complaint under this head arises from the fact, as recounted by him, that whilst Miss Hogan was giving evidence the Recorder of London said: “Can’t someone stop this woman talking.” The defendant’s inability in this respect is said to be capable of being negligence in the performance of his professional duties. It is not. His third and fourth complaints, if properly pleaded, might, however, be capable of disclosing a case of negligence if there was evidence to support them and a barrister could be sued for negligence in and about his conduct of a client’s case in court. The plaintiff alleges that the defendant negligently failed, first, to cross-examine the prosecution’s witnesses so as to establish (as the plaintiff alleges could have been established) that the injury which was at the root of the prosecution’s case could not have been caused by a knife; and, secondly, to call witnesses. Can a barrister be sued for negligence in and about his conduct of a client’s case in court?1 QB. QUEEN’S BENCH DIVISION I pose the question in that form because I have not found it necessary to decide any other. Nowadays barristers are asked to give their professional help in many activities of life which are remote from criminal trials and litigation; for example, with solicitors and accountants they share the burden of advising about taxation and company formation. Such work, in its nature, respon- sibilities and rewards, is far removed from the professional duty which the defendant had to perform when he found a dock brief thrust upon him as a result of a chance judicial remark. Had he not been obliged by the rules of his profession to accept the plaintiff as a client it is most unlikely that he, or any other barrister, would have done so. For a long time now the generally accepted view about the immunity of barristers from actions of negligence has been that set out in Halsbury’s Laws of England, 3rd ed., Vol. 3 (1953), para. 66, p. 46, namely: “The principle which prevents a barrister from suing the client for his fees, ic., 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.” Ever since the decision of the House of Lords in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd many at the Bar have been watching carefully for signs of the cold wind of change blowing across the Strand into the Temple; some are said to have protected themselves with the comforting embraces of Lloyd’s and others who provide like services. Salmond on Torts, in the latest edition, has sounded the alert (see 14th ed. (1965), p. 283). : When and why did barristers acquire a reputed immunity which is not enjoyed by any other profession? The search for an answer to these questions has taken me back to the Year Books for the reign of Henry VI, in which thete are three references to the professional responsibilities of those who are learned in the law. These were considered by the Court of Exchequer sitting in banc in Swinfen v. Lord Chelmsford? and commented upon by Pollock C.B. in his judgment * in these terms: 1 [1964] A.C. 465; [1963] 3 2 (1860) H H. & N. 890. PEER 101; (1963] 2 Al BR. 575, 3 Ibid. 918. L(E.). 455 1965 Rondel v. Worsley Lawron J.456 1965 v Worsley ‘Lawton J. QUEEN'S BENCH DIVISION [1967] “There are no doubt dicta in Rolle’s Abridgement which would seem to imply that a ‘ man of the law’ (as he is called) might be responsible for not performing his duty; but, when the Year Books are referred to, it seems very uncertain whether these ‘dicta’ proceed from the Bench or from the Bar; and, if from the Bench, they are not given as a judgment in the case before the court, but merely as an illustration of the argument or point under discussion.” In Kennedy v. Broun * Erle C.J., delivering the judgment of the Court of Common Pleas sitting in banc, made this comment ® upon the Year Book cases: “ With respect to the dicta cited by Mr. Kennedy relating to the liability of counsel for their conduct as advocates, they are all considered and overruled in the action of Swinfen v. Lord Chelmsford® Some refer to retainers relating to purchases of Jand or similar services, and so are not within the incapacity here in question: 11 Hen. VI, fol. 18, pl. 10. And, although the dictum of Paston J. (14 Hen, VI, fol. 18, pl. 58), * that action lies against a serjeant who fails to attend in court,’ and a dictum by Stoke, counsel, 20 Hen. VI, fol. 34, pl. 4 (Rol. Abr., Vol. 1, p. 91), to the same effect, relate to litigation, yet they are mere remarks in the course of an argument, and not adjudications; and they were expressly overruled, as before mentioned.” In the one hundred years since 1863 a lot has been discovered about the Year Books and their purpose. They were compiled by apprentices in the law, or, as they became known in later years, utter barristers, and were used to support arguments in court and for the instruction of students. This is shown clearly by some comments of Priscot C.J., in Year Book 33 Hen. VI, Michaelmas Term, pl. 17, when he said: “Tf this were now to be held ‘no plea,’ as you maintain, in very truth it would be a bad example to the young apprentices studying their Term Books ”—that is, the Year Books— for they would never give credence to their books if the contrary to what has been so many times held in the past were held on the present occasion.” The Year Books continued to be so used until the 17th century. What is in the Year Books reflects the views which lawyers and judges held at the time; and when judges or serjeants expressed views which were not generally accepted the scribes would insert marginal notes querying what was said. Mr. L. C. Hector, of the Public Record Office, without whose help I should have beer 4 (1863) 13 C.B.NS, 677. °5 H. & N. 890. 8 Ibid. 730.1 QB. QUEEN'S BENCH DIVISION unable to make much sense out of the Year Books, has called my attention to just such a note at the end of the very case in which Paston J. made the comment referred to by Erle C.J. in Kennedy v. Broun." This note is to be found in a 15th-century copy of the Year Books in the British Museum (B. M. Harl. 5159, fols. 150r-150v): it does not, however, raise any query about Paston J's statement of law. Against this background provided by moder scholarship, it is worth while looking again at the Year Book references to find out what evidence they provide as to what were the generally accepted views of the legal profession in the first half of the 15th century about the duties of men “learned in the law” towards their clients and their liability for mishandling cases. The first of these references in point of time is 11 Hen. VI, fol. 18, pl. 10, in the 1679 edition, which records Paston J. as saying in effect that if a legal adviser guarantees to win a manor in a suit he is liable on his undertaking. This is far from the matter I am considering and is of no help. The last reference in point of time is 20 Hen. VI, fol. 34, pl. 4, in the 1679 edition. This must have been an important case because it had been adjourned into the Exchequer Chamber for further argument, and the court had the assistance of one Stokes, who was not counsel, as Erle CJ. described him, but a protonotary, that is, one learned in civil and canon law. At this time it was the practice on occasions to seek help from the civilians. In the course of acting as amicus curiae Stokes said (and again I translate freely): “ Suppose I retain a man who is learned in the law to be my counsel at the London Guildhall on a certain day and he does not turn up, with the result that I lose my case, I can sue him in an action of deceit.” The judges did not demur from this proposition; indeed, Paston J. is recorded as saying: “The action would be in covenant for deceit or in deceit alone.’ The use of the word “deceit” by both Stokes and Paston J. shows that the element of collusion was present. Such were the professional standards of the time that the Register of Writs for this period, which is in the Public Record Office (Registrum Brevium, fol. 113), has a precedent for a writ calling upon an attorney to answer at the suit of a former client a charge that he had absented himself from court in collusion with the opposing side. Whatever immunity from suit the present-day barrister enjoys it does not allow him to defraud his clients. The 7 13 CBN. 677, 730. 457 1965 Rondel ve Worsley Lawron 5.458 1965 Rondel Worsley Lawron J. QUEEN'S BENCH DIVISION [1967] _. Year Book reference 20 Hen. VI, fol. 36, pl. 4, does not help with the problem I am considering. The next reference, 14 Hen. VI, fol. 18, pl. 58, in the 1679 edition, does, in my judgment, provide strong evidence that at this period, that is about 1435—the leaders of the legal profession, namely, the serjeants-at-law and the judges, accepted that lawyers who did not do their work properly were liable, just as farriers and carpenters were. The advocates in the case, John Ellekar and Richard Newton, had both been made serjeants-at-law on Novem- ber 28, 1424, so at the time they had about 10 years’ standing. The presiding judge was John Juyn, who had been made a serjeant- at-law in 1404 and appointed both a judge of the Court of Common Pleas and Chief Baron of the Exchequer on May 5, 1423; and shortly after this case, on February 9, 1436, he was appointed Chief Justice of the Common Pleas. William Paston, who made the comment to which I shall shortly refer, had been made a serjeant in 1421 and appointed a judge of the Common Pleas on October 15, 1429. I have given these biographical details in order to show that what was reported as being said and recorded in practice books which remained in general use for two centuries afterwards was said in the presence of lawyers of standing and experience. In Swinfen v. Lord Chelmsford, counsel for the defendant, after referring to this Year Book reference, said °: “But the passage is probably misreported.” This must have been a surmise. Five contemporary copies of the Year Books for this year of Henry VI’s reign are known to exist: four of them are in the British Museum; the fifth is in the library of Harvard Law School. With the help of Mr. Hector and Dr. G. R. C. Davis, the Deputy Keeper of Manuscripts at the British Museum, I have examined all four copies kept there. All four report this case and remarks made by Paston J. Two of them (B.M. Harl. 4844 and 5155) are virtually identical with each other and with the texts of the 1609 and 1679 printed editions. The other two (B.M. Harl. 4557 and 5159) are slightly different and do not have part of Paston J.’s comment about the liability of a serjeant-at-law for not doing his work properly. In both manuscripts the words omitted are the same. In Harl. 4844 and 5155 the relevant passage can be translated as follows: “And if you Sir (i.e., Richard Newton) who are a serjeant-at- law undertake to plead my plea and do not do it, or do it in 85 H. & N, 890. ® Ibid. 903.1 QB. QUEEN'S BENCH DIVISION another manner than I told you to, so that I lose, I have an action on the case.” The words omitted in Harl. 4557 and 5159 are: “ou faites en autre man q jeo disois.” Immediately after this comment the presiding judge, Juyn C.B., is reported as delivering what seems to be the leading judgment of the court. He approved in terms what Paston J. had said about the liability of farriers and did not dissent in any way from what he had said about the liability of serjeants- at-law. The suggestion made at the Bar in 1860 that Paston J. was probably misreported has no basis so far as I have been able to discover. Such contemporary evidence as there is points the other way. After this, such law reports as have come down to us are silent about barristers for some two hundred years. During that time the Bar had flourished as a profession. One of their number, Sir Thomas More, had become Lord Chancellor, the first common lawyer to reach that great office. The Inns of Court were prospering and enjoying royal approval. By the beginning of the 17th century the cleavage between barristers and attorneys was becoming more marked. In 1629 the Court of Chancery dismissed, on demurrer, a bill brought by a “counsellor at law” against a solicitor for fees due and for which the defendant was to account at the end of every term: see Moor v. Row.’® From that time onwards the courts consistently refused to allow barristers to sue for their fees. I can see no point in reviewing the old cases as courts whose decisions are binding upon me have adjudged that barristers have no capacity to sue for their fees. One milestone on the road to this result is provided by the judgment delivered by Sir. R. T. Kindersley V. C. in 1858 on the hearing of a petition by a barrister for payment of his fees by a solicitor: “T hope,” he said, “the time will never come when such a tule is established. I will never make a precedent. If you bring me precedents and establish your case, I must make the order; but I will never willingly derogate from the high position in which a barrister stands, and by which he is distinguished from an ordinary tradesman.” See In re May. Language of this kind, which is so jarring to most people in the mid-20th century, is the vehicle of expression for many of the judgments of the Victorian age dealing with the status, 30 (1629) 1 Rep.Ch. 38; 5 Car. I, 14 (1858) 4 Jur.N.S. 1169, fol. 168. 459 Rondel v Worsley Lawton J.Rondel ve Worsley Lawton J. QUEEN'S BENCH DIVISION [1967] rights and duties of barristers. In Kennedy vy. Broun™ the Court of Common Pleas sitting in banc (whose decisions are probably binding on me) decided (and I quote from the judgment of Erle ch) “ that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litiga- tion, 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.” Various reasons were given. One line of reasoning is perhaps worthy of notice in the year 1965, namely, the analogy of the practice of advocates in ancient Rome. The Chief Justice said *: “Throughout the whole growth of the civil law, from the foundation of Rome to the Digest of Justinian, not only was the advocate always under incapacity to make any contract for his remuneration, but also throughout a part of that time he was under prohibition from receiving any gain for his services.” Later, he said **: “So also the Roman jurists are entitled to be gratefully remembered, because their intuitive sense of right shewed to them -where right was in the conflicts of interest perpetually arising as the relations of man to man multiplied: and their words have helped to guide succeeding generations in their search for right when similar conflicts arose. And it must not be forgotten that throughout the Roman system it was held that an advocate and a professor of law would be degraded by a contract of hiring, and that his reward was to be gratuitous.” In In re Le Brasseur & Oakley ** the Court of Appeal dealt with the subject of a solicitor’s liability to account for counsel’s fees without founding its reasoning on either Tacitus’ Annals (lib. XI, 5) or the Lex Cincia de donis et muneribus, both of which are relied upon in Kennedy v. Broun. Lindley LJ. said ?®: “Tt would, I think, be much to be regretted if this court, either by itself or by its officers, did anything to enable counsel to recover his fees from his client... . Fees are payable as a matter of honour.” Lopes and Rigby L-JJ. both agreed with the view that the payment of counsel’s fees is a matter of honour. It is not for me to speculate 32 13 CB.NS. 677. ae (1896) Cua CA ae 38 Ibid. 727. + Ibid. 733, = tise) 2.Ch. 487, 493, 8 Ibid, 739.1 QB. QUEEN’S BENCH DIVISION whether, in this day and age, the young barrister struggling with family responsibilities shares the regrets expressed by Lindley L.J. I must apply the law as the Court of Appeal adjudged it to be. It is the law that a barrister cannot sue for his fees. But can this be the reason why, as the current edition of Halsbury, Laws of England, Vol. 3, para. 66, p. 46, suggests, following Robertson v. MacDonogh,” a barrister is immune from an action for negligence? That case is certainly a persuasive authority in support of the proposition that because of incapacity to contract a client cannot sue a barrister for non-performance of an agreement to appear at a trial; but this is a long way from negligence. In Hedley Byrne & Co, Ltd. v. Heller & Partners Ltd.*° Lord Morris of Borth-y-Gest pointed out ** that liability for negligence in the exercise of a profession can arise outside contract. He said: “T consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill under- takes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise.” For over 150 years it has been well settled that a medical practi- tioner is liable, apart from contract, for the negligent treatment of a patient: see Pippin v. Sheppard.* The view which the law took at the end of the 18th century and the beginning of the 19th about the liability of barristers for negligence is very different. The first reported case in which this question came up for consideration was Fell v. Brown,”> which was.tried before Lord Kenyon C.J. The plaintiff was represented by Erskine, who was then at the height of his fame. He opened the case to the jury** on the basis that he could prove crassa negligentia and not a mere error of judgment. At the end of the opening Lord Kenyon C.J. intervened ** and non-suited the plaintiff. He said that the action could not be supported, there being more objection than one; but the report does not report what they were. At the end of the report comes these words**: “His Lordship added that he believed this action was the first, and hoped it would be the last, of its kind.” He told Erskine that he would make a note of the cause so that the plaintiff might move for a new trial if he thought proper. No further report of this case has been found. 8 (1880) 6 LRI. 433. 28 (1791) Peake 131. 20 [1964] A.C. 465. 26 Tid. 2 Ibid. 502. 28 Tid, 22 (1822) 11 Price 400. 28 Tid. 132. 461 1965 Rondel Worsley Lawron J.462 1965 Rondel % Worsley Lawron J. QUEEN'S BENCH DIVISION [1967] In Perring v. Rebutter," an action for negligence was brought against a special pleader. The report is in these terms **: When the case was called on, “Lord Abinger C.B. said he had read the declaration and did not see how this action could be maintained. Such an action was certainly not maintainable against a barrister, and in his opinion there was no distinction between the case of a barrister and that of a certificated special pleader. Upon this intimation of his Lordship’s opinion, a conference took place between the counsel, and the case was settled by withdrawing a juror.” Two of the counsel involved (Erle and Kelly) later became judges. In 1845, during the course of the hearing in the House of Lords of a Scottish appeal concerned with the liability of a writer to the signet for improperly conducting a suit (Purves v. Landell ®) Lord Campbell said #: “Tn an action such as this, by the client against the professional adviser, to recover damages arising from the misconduct of the professional adviser, I apprehend there is no distinction whatever between the law of Scotland and the law of England. The law must be the same in all countries where law has been considered as a science. The professional adviser has never been supposed to guarantee the soundness of his advice. I am sure I should have been sorry when I had the honour of practising at the Bar of England, if barristers had been liable to such a responsibility. Though I was tolerably cautious in giving opinions, I have no doubt that I have repeatedly given erroneous opinions; and I think it was Heath J. who said that it was a very difficult thing for a gentleman at the Bar ‘to be called upon to give his opinion, because it was calling upon him to conjecture what twelve other persons would say upon some point that had never before been determined. Well then, this may happen in all grades of the profession of the law. Against the barrister in England, and the advocate in Scotland, luckily, no action can be maintained. But against the attorney, the professional adviser, or the procurator, an action may be maintained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible for even falling into what must be considered a mistake.” The authorities up to this date show that the Bar and the judges both in England and Scotland were of the opinion that barristers could not be sued, but no reasons had been given. Then came Swinfen v. Lord Chelmsford,** which must have caused a stir because the defendant, who was Lord Chancellor 21 (1842) 2 Mood. & R. 429, 20 Ibid. 102. 28 Thid. 430. 45H. & N. 890. 29 (1845) 12 Cl. & Fin. 91.1 QB. QUEEN'S BENCH DIVISION at the time, was sued for what he had done in the course of his __'! conduct of the plaintiff's case when he was at the Bar. The declaration contained two counts: the first *? charged him with compromising the plaintiff’s case without her authority and “ wrongfully and fraudulently, and in neglect and violation of his duty to the plaintiff”; the second** was more picturesque: it alleged that he had entered into the compromise “under undue influence and by collusion with the learned judge who tried the cause.” In his summing-up to the jury, Pollock C.B, directed them ** “ that the first count charged the defendant with entering into the compromise wrongfully, fraudulently, and in violation of his duty as the plaintiff's counsel, and contrary to the instructions in his brief; 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; that if the defendant intended to act honestly, and for the benefit of his client, he was not responsible; that though the plaintiff denied that she assented to, or authorised the compromise, the question was not what authority she gave, but whether the defendant acted honestly.” He asked the jury whether the defendant entered into the compro- mise to serve any unworthy purpose of his own, or did he act according to the best of his judgment, and for what he thought was the interest of his client. The jury found for the defendant on all the contested issues. Later the plaintiff obtained a rule nisi for a new trial, on the ground that the judge had misdirected the jury as to the liability of an advocate. The defendant moved the Court of Exchequer sitting in banc to discharge the rule nisi; the report does not give the names of all the judges present but it records comments made by Pollock C.B. and Bramwell and Channell BB. during the course of the argument. The judgment of the court was delivered by the Chief Baron and in it he said **: “This case is of very great and general importance, raising questions as to the duties and responsibilities of the members of the Bar, and the obligation under which they come, by accepting a retainer and afterwards holding a brief.” This passage set out the issue in wide terms; far wider than the issues raised by the declaration, the pleas to it and the motion for a new trial. The case turned around the compromise which the defendant had made. Had he acted honestly in making it? If he had, could he be liable to his client? The issue of negligence in 32 5 H, & N, 890, 891. 34 Ibid. 897, 898. 30 Ibid. 892, 893. 85 Thid. 917.Rondel Worsley LawTon J. QUEEN'S BENCH DIVISION [1967] the modern sense was not raised or discussed. One of my problems in this case has been to decide what was the ratio decidendi of this case. Unfortunately it is clear that the court was divided upon certain of the questions which were raised. Pollock C.B. said **: “... although we are unanimous as to the mode in which this tule should be disposed of, we have not been able to agree as to all the points that belong to the general question, and perhaps, as we are not sitting in a court of the last resort, it is the less necessary that we should go into the whole question, and discuss and decide whatever may belong to it. 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.” Then follows a discussion about some points of pleading and the scope of counsel’s authority. For the purpose of illustrating the extent of counsel’s authority, the Chief Baron went on as follows *": “The conduct and control of the cause are necessarily left to counsel. 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.” At the end of his judgment comes this passage **: “T entirely concur in the judgment of my learned brothers, and in the reasons. assigned for that judgment, but my own opinion goes somewhat beyond theirs as to the duties and responsibili- ties of a barrister; and I think it right to express my own opinion, that provided an advocate acts honestly, with a view to the interests of his client, he is not responsible at all in an action. It seems admitted on all hands that he is not responsible for ignorance of law, or any mistake in fact, or for being less eloquent or less astute than he was expected to be. According to my view of the law a barrister, acting with perfect good faith and with a single view to the interests of his client, is not responsible for any mistake or indiscretion or $8 5 H. & N. 890, 919, 920. 88 Ibid. 924, 31 Tid, 921.1 QB. QUEEN’S BENCH DIVISION error of judgment of any sort; and if he imagines he has authority to make a compromise when he really has not—this is a mistake either in law or fact; or if, in spite of instructions to the contrary, he enters into a compromise, believing that it is the best course to take, and that the interest of his client requires it, this is but an indiscretion or an error in judgment if done honestly; and it appears to me that, neither for the one nor the other, can any action be maintained against him, and I should have been willing to put my judgment on that ground; and our lamented brother Watson, who heard the whole of the argument, was entirely of the same opinion, and therefore would certainly have concurred in our judgment that the rule for a new trial be discharged.” In my opinion the ratio decidendi of this case is confined to the authority of counsel to conduct and compromise a case as he sees fit. The view that a barrister who acts honestly is immune from all liability seems to have been a minority one—and the language in which it was expressed (“is not responsible for any mistake or indiscretion or error of judgment ”) is not apt to describe the kind of professional behaviour which nowadays results in a professional man being adjudged negligent. I have in mind the terms in which the Lord President (Lord Clyde) defined the liability of doctors for negligence, viz.’ “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” See Hunter v. Hanley. In Swinfen v. Lord Chelmsford*! the court never addressed its attention to the problem of negligence in the modern sense. In Mulligan. v. M’Donagh* there is a short report of a case in which a client sued a member of the Irish Bar for “ wilfully, negligently and treacherously ” deceiving the plaintiff by not attend- ing a trial as counsel after being retained. The defendant entered a demurrer. The case was argued on the demurrer before the full Court of Exchequer in Ireland. The attention of the court was drawn by the defendant to some of the cases to which I have referred in this judgment and to a number of other cases relating 89 1955 SLT. 213, 217. “a S5HEN, 40 1955 SLIT. 213; 1955 S.C. 200. 4 (1860) 2 ‘UENS, 136. 465 1965 Rondel v Worsley Lawton J.466 1965 Rondel v Worsley Lawton J. QUEEN'S BENCH DIVISION [1967] to counsel’s incapacity to sue for fees and the legal effect of retainers. No useful argument seems to have been put before the court on behalf of the plaintiff, who appeared in person. The judgment, which was delivered by Pigot C.B., was short *: “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. We must allow the demurrer with costs.” If my analysis of the cases from 1791 onwards is right the judges had never before this case ruled on the question whether a barrister was liable for failing to take reasonable care in and about the conduct of his client's case in court. For 70 years before 1860 eminent judges had assumed that barristers were not liable for negligence. Twenty years later an Irish barrister of the same name was sued for failing to attend at court in answer to his retainer (Robertson v. MacDonogh**). The claim was in contract, not negligence. It was dismissed ** on the ground that as a barrister has no capacity to contract, he cannot be liable for non-performance of an agreement to appear in court for his client. The researches of counsel have led to the discovery of a Canadian case which highlights the difficulties which confront me and does nothing to help me get over them. I refer to Leslie v. Ball.* In that case a dissatisfied client sued an attorney for negligence in conducting a suit. One of the allegations of negligence was that he had failed to instruct counsel and had conducted the case himself. To this the attorney demurred that he was a barrister in Upper Canada and had been entitled to act as such in this case, and that in so far as the plaintiff's claim arose out of his alleged negligence in doing the work which counsel could have done, no action would lie as counsel could not be liable in an action for his conduct when at a trial. The court rejected the demurrer, adjudging that any lawyer acting as both attorney and barrister in the same case (as was then possible in Canada) the liability properly attaching to him was that of an attorney and not that of a barrister. In the course of his judgment Adam Wilson J. said 47: “In England, no doubt, an action will not lic against a counsel for any neglect or mistake in a cause, so long as he has acted bona fide, because his services are gratuitously rendered, and £ 2 LENS 136,137. $1863) 22 UCRIQB) 512. “6 CRI +7 Ibid 45 Tid.1 QB. QUEEN’S BENCH DIVISION no action can be maintained by him for any compensation. The whole law is very elaborately discussed in Swinfen v. Lord Chelmsford.*”” He went on to distinguish the position of barristers in England from that in Canada, where under statute the superior courts would allow fees to counsel. In my judgment Swinfen’s'case * did not decide what Adam Wilson J. thought it did; and further it was, and is, bad law to say that a man is not liable for negligence in doing a service because he has not charged for doing it. Finally I come to Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.*° The question which the House of Lords had to consider in that case was whether a negligent, though honest, misrepresentation, spoken or written, could give rise to a cause of action for damages apart from contract. Their Lordships decided that it could, and the principle upon which the decision is based may be wide enough to apply to a member of the Bar who negligently misrepresents something in an opinion which he knows, or expects, will be shown to others with a view to their arranging their affairs in reliance on it. That is not the problem before me. The language which Lord Morris of Borth-y-Gest used must be considered in relation to the problem which was before the House. In my judgment Hedley Byrne & Co, Ltd. v. Heller & Partners Ltd. is not an authority which is binding upon me in this case. I have, of course, kept in mind the reminder which it contains of the present-day breadth of the law of negligence. Mr. Swanwick, on behalf of the defendant, submitted that the law was as stated in Halsbury, 3rd ed., Vol. 3, p. 46. He based his argument on these grounds: first, that ever since 1791, the authorities have all been one way and that one of them, Swinfen v. Lord Chelmsford, being a judgment of the Court of Exchequer sitting in banc, was binding on me; secondly, that the immunity of barristers was based on a usage which has become part of the common law; and, thirdly, that this immunity came about because the needs of public policy required barristers to have it and that public policy still requires them to have it. As to the first point, for the reasons I have already given in my judgment, Swinfen v. Lord Chelmsford * is not an authority which binds me. The so-called authorities earlier than Swinfen’s case * are not authorities at all, except perhaps in the sense of the 485 H. & N. 890. 92 5 H. & N. 890. *° Tbid. 88 Thi 80 [1964] A.C. 465. 54 Tbid. 4 Ibid. 467 1965 Rondel ve Worsley Lawron J468 Rondel ve Worsley Lawron J. QUEEN’S BENCH DIVISION [1967] “Hunting of the Snark”: “What I tell you three times is true.” These early cases, like the Year Book references, are strong evidence of the view of the law then held by experienced judges and leading members of the Bar. Over a period of 400 years these views had changed; but so had the legal profession and the society in which that profession worked, The appeal to usage seems to me to be a legalistic, if not elegant, variation of Mr, Swanwick’s first argument, namely, that the immunity of barristers is part of the common law. As barristers have no capacity to contract they cannot, in any arrangements which they may make with their clients, bind them to accept the usages of their profession. The only type of usage which could govern the relationship between counsel and client would be a general custom of the realm. “Such a custom,” said Tindal C.J. in Veley v. Burder,®* “existing beyond the time of legal memory, and extending over the whole realm, is no other than the common law of England.” Anyway, on the evidence of the Year Books, I am not satisfied that the immunity of barristers has existed beyond the time of legal memory. The evidence is, however, that for at least 174 years judges and barristers have been so certain that barristers cannot be sued for negligence that the issue has never, as far as is known, been tested to judicial decision save by two plaintiffs, both appearing in person: Mulligan ® in Ireland 105 years ago, and this present plaintiff. Further, I have been unable to find any reported case of a solicitor who has acted as an advocate being adjudged negligent in the handling of his case in court. Why? Now that this problem has been put up for public view there will be many who will provide a ready answer. They will say that at some time between the 16th and 18th centuries barristers, with the connivance of the judges, built for themselves an ivory tower and have lived in it ever since at the expense of their clients. To such as think like this the characters of those of my predeces- sors on the Bench who have accepted the immunity of barristers as part of the law of England will be no obstacle, for, as Milton said in Comus, “ unbelief is blind,” I can see the obstacle. These 18th- and 19th-century judges knew what was entailed in the administration of justice and that, without the help in court of the Bar, justice would often remain undone. In recent years Parliament has recognised the importance of advocacy in the administration of 55 (1841) 12 Ad. & E. 265, 302. 982 LT.NS. 136.1 QB. QUEEN’S BENCH DIVISION justice and has authorised public funds to be spent in providing advocates for those who cannot afford to pay themselves, An advocate, be he barrister or solicitor, who appears for a client in court is helping the judge to do justice. He is most helpful when he is putting his client’s case as well as it can be put; but he must never forget that he owes a duty to the court as well as to his client. Many advocates, in the course of their professional lives, have to face the embarrassment of bringing to the attention of the court authorities of which their opponents have been ignorant and which they know will lose the case for the client who has paid their fees. If the judges could not rely upon counsel to bring all relevant authorities to their attention the administration of justice would have to slow down and vast public expenditure would be incurred in providing them with legal secretaries. This is but one example of counsel’s duty to the court. There are others: I will mention some which every practising barrister has in mind as he goes about his daily professional round. He may not provide or devise a line of defence for a client (see The Duty and Art in Advocacy, by Sir Malcolm Hilbery, p. 12). He may not assert that which he knows to be a lie. He may not connive at, much less attempt to substantiate, a fraud. He may not set up an affirmative case inconsistent with any confession or admission made to him by his client. He must not be a party to any deception of the court. In a criminal case if some irregularity comes to his knowledge before verdict is given, he must bring it to the attention of the court at the earliest possible moment and must not hold it in reserve with a view to taking it later as a point before the Court of Criminal Appeal, when it would be too late to remedy the mistake: see Rex v. Neal.** The performance of these duties is often likely to be prejudicial to what the client considers to be his best interests; but whatever the client wants, counsel must do his duty to the court. The element of dualism in counsel’s duties would make him an easy target for the dis- gruntled client. There are some clients who would not be satisfied by the performance of an embodiment of all the forensic virtues of Erskine, Scarlett, Russell, Birkett and Hastings; but the barrister cannot avoid taking such persons as clients. In 1953 the Chairman of the Bar Council, Sir Hartley Shawcross Q.C., reminded the Bar of what Erskine had said when he was deprived of his office as Attorney-General to the Prince of Wales for accepting a brief to defend Tom Paine: 51 [1949] 2 K.B. 590; 65 T.L.R.557; [1949] 2 All E.R. 438, C.C.A. 1 QB. 1967. 31 469 1965 Rondel ¥. Worsley Lawron J.470 1965 Rondel ¥ Worsley Lawron J. QUEEN'S BENCH DIVISION [1967] “ From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end” (The Times, February 19, 1953). If barristers could be sued for negligence, justice would require, so it seems to me, that they should have the right to pick and choose their clients. In my judgment any advocate, be he barrister or solicitor, who appears for a client before a court of law is an officer of justice just as the judge is; and, as in the case of the judge, public policy requires that he should be protected from suits brought by disgruntled litigants, I am satisfied that were the law otherwise a number of evils would follow. First, the judges would stop getting from the Bar and from solicitors acting as advocates the help which they do get. Instead of thinking all the time how best to help their clients and the administration of justice, advocates would have to start thinking about how to protect themselves from allegations of negligence made by disgruntled clients. Few advocates would dare to take a short cut or drop a point. Secondly, those with unpleasing or paranoid personalities would have difficulty in finding advocates to represent them. Thirdly, the courts would find themselves burdened with cases which'would be well-nigh impossible to try. Plaintiffs, for example, might well allege, as this plaintiff has, that counsel had been negligent in cross-examining as he did. In order to try such an issue the first case would have to be tried all over again, probably years after the events about which the witnesses had spoken. Worse still would be the cases in which the allegation was that counsel had negligently omitted to ask questions. Every experienced advocate knows that one of the most difficult aspects of the art of advocacy is to know when to stop. The judge’s face has to be watched and an ear kept open for shuffling feet in the jury-box. None of this could be brought back into court months or years afterwards. Many who had been convicted of criminal offences and who had unsuccessfully exhausted all their rights of appeal would seek, maybe years later, to get a retrial by means of an action for negligence against the advocate who had defended them. There would be no end to litigation. I have set out at length why I adjudge that advocates cannot be sued for negligence in and about the conduct of their clients’ cases in court, and have used the word “advocate,” not “ barrister,” because in my judgment the immunity from suit arises from the1 QB. QUEEN’S BENCH DIVISION part which an advocate plays in the administration of justice, not from membership of an Inn of Court. I suspect that that which has taken me a long time to expound was a self-evident principle to former, and probably wiser, generations of judges. It follows that there would be no point in giving the plaintiff leave to amend; accordingly I dismiss the appeal, with costs. Appeal dismissed with costs. Solicitors: Forsyte, Kerman & Phillips; Official Solicitor. [Reported by Mrs. Zita Davigs, Barrister-at-Law.] The plaintiff, still in person, applied on January 24, 1966, for leave to appeal from that order to the Court of Appeal (Lord Denning M.R., Danckwerts and Salmon L.JJ.) and asked for leave to put in another statement of claim and to get a solicitor to help him with it. Leave to appeal was given in view of the important points of law which had arisen on the plaintiff’s application.’ After obtain- ing leave, the plaintiff was assisted voluntarily by an independent solicitor, who prepared for the consideration of the members of the Court of Appeal a typewritten document of 116 pages setting out all the arguments and authorities in support of the contention that barristers were no longer immune from actions for negligence. The members of the court agreed to receive the brief, and when the hearing began on June 13, 1966, Lord Denning MLR. referred to it as a very valuable document and said that the court had read it. On the fourth day of appeal, in response to requests from the Bench and from counsel for the defendant, a draft reamendment of the plaintiff's statement of claim was prepared by the solicitor assisting the plaintiff, and leave was sought to deliver it. By it the plaintiff alleged, inter alia, that on May 28, 1959, he had appeared for trial at the Central Criminal Court on charges of causing grievous bodily harm to one Manning; that in accordance with the practice in relation to dock briefs he had chosen the defendant as his counsel; that in conference with the defendant he had denied that he had attacked Manning or used a knife and had told 1 “The Times,” January 25, 1966. 471 1965 Rondel v, Worsley Lawron J. CA. 1966 Rondel v, Worsley472 CAL 1966 Rondel Worsley QUEEN'S BENCH DIVISION [1967] the defendant that he had acted in self-defence; that it was the duty of the defendant to conduct the case in court with reasonable skill and care: alternatively, that the defendant, having been told the nature of the defence which the plaintiff wished to have advanced, it became his duty to conduct the defence with such skill and care; but that as a result of the defendant’s conduct of the case the plaintiff had been wrongly convicted of the two charges and sen- tenced to 18 months’ imprisonment. Details were given of the particular complaints, namely, failing properly or at all to examine or re-examine a defence witness; failing properly or at all to cross- examine two of the prosecution witnesses as to the nature of the wound in the hand received by Manning and the nature of the offensive weapon alleged by the prosecution to have been used by the plaintiff; and failing to elicit or call witnesses to prove that the plaintiff was employed as a rent collector and caretaker and therefore authorised to go onto the premises where the incidents took place. The plaintiff in person. Patrick O’Connor Q.C. and L. I. Stranger-Jones for the Official Solicitor as amicus curiae. Until the decision in Hedley Byrne & Co. v. Heller & Partners Ltd. the concept of negligence was tied to a contractual agreement, and the question whether a barrister might be sued for the tort of negligence had not been discussed for over a hundred years. The law on the subject was thought to be toler- ably clear, and was accepted and applied. It had been settled in two stages. First, that a barrister was incapable of contracting for his services and could not sue for his fees; and secondly, as a corollary, that he could not be sued for negligence. But Fell v. Brown® and Turner v. Philipps, which are cited in all the textbooks as authori- ties for the rule that barristers are immune, give no foundation in logic for that rule, the only hint of a reason appearing to be that the court could control counsel by ordering them to pay costs personally, as the court can do today in respect of solicitors. Arguments in two related cases arising out of the same litigation constitute an historical survey of the law on this topic a hundred years ago, though the cases cited do not always support the pro- positions with which they are linked. In the first, Swinfen v. Lord Chelmsford,’ which was a claim for negligence against a barrister, the whole Court of Exchequer appears to have decided that, though 2 [1964] AC. 465; [1963] 3 a (17 WLR. 101; [1963] 2 AI E.R. 575, (1792) Peake 166, DE ea 890.1 QB. QUEEN’S BENCH DIVISION the barrister had effected a compromise when he had been expressly instructed not to do so, he acted honestly and was therefore not Jiable. [Lorp DenninG M.R. Counsel did what he was told not to do; that seems even worse than negligence.] All the textbooks today assert that counsel can bind his client even against the client’s wishes; but whatever the precise limits of the Jaw may be, it is difficult to conceive of any counsel worth his salt bowing to a client’s instructions about which witnesses to call and what questions to ask. Swinfen v. Lord Chelmsford * is not binding on this court. It appears to recognise that a barrister might enter into a special contract with a client for fees. But in the second of those linked cases, Kennedy v. Broun,* where a barrister had made a special contract for fees of £20,000, the Court of Common Pleas sitting in banc held that a barrister could not make a contract, general or special. : [Lorp DennING M.R. The court thought that £20,000 was a monstrous sum.] The court was very unfair to Mr. Kennedy; but as Kennedy v. Broun * was approved by this court in Mostyn v. Mostyn? and In re Le Brasseur and Oakley * it is binding on this court in respect of the barrister’s inability to sue for fees unless it can be distinguished from the present case: see also the modern statement of the law on this subject in Halsbury’s Laws of England, Vol. 3, 3rd ed. (1953), para. 66, p. 46. In Kennedy v. Broun® a reason suggested for the rule was that it removed the temptation of what in the United States are called contingent fees. That is a reason, though not a very good one. The court was also concerned about the impor- tance of counsel having freedom to conduct cases. There are many occasions where a free and fearless Bar is of importance to society in general; but it is difficult to suppose that the generally high standard would fall if a barrister were both capable of making a contract and also liable for negligence. Even if he cannot make a contract or sue for his fees—and many attempts have been made to get round the rule, from Moor v. Row*® to Wells v. Wells *—the question now is whether the Hedley Byrne decision’? has altered the position of immunity where a client suffers loss by counsel’s negligence. It is easy to understand that in 1870 and 1896 this court, faced with repeated ® (1863) 13 CBNSS. 677. 10 (1629) 1 Rep.Ch. 38, 39; 5 Car. 7 (1870) 5 Ch.App. 457. 1, fol. 68. 8 [1896] 2 Ch. 487, 494, C.A. 1 [1914] P. 157; 30 TLR. 545. * 13 CB.NS. 677,723. 12 [1964] A.C. 465. 473 CAL 1966 Rondel Worsley474 CAL 1966 Rondel Worsley QUEEN’S BENCH DIVISION [1967] and powerful dicta over hundreds of years, should have accepted and declared the rule as stated in Kennedy v. Broun to be good Jaw; but when Lindley LJ. in Le Brasseur v. Oakley * linked the barrister’s immunity with his inability to contract, the action for negligence had not developed as it has since done, through the dissenting judgment of Denning L.J. in Candler v. Crane, Christ- mas & Co.,"* to the House of Lords decision in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.** in 1963. If a profession makes a rule of etiquette that its members shall not sue for fees, as was the position with the Royal College of Physicians, that rule should not be prayed in aid to support a complementary rule that persons who choose to belong to that profession shall not be sued if they are negligent. The real question is whether historically there is something which distinguishes the barrister from every other professional man, and, if so, whether his immunity is founded in public policy or on some other, and, if so, what ground? The law as to the remedies against professional people is still in the making. In two decisions since Hedley Byrne,’ Clark v. Kirby-Smith,"’ concerning a solicitor, and Bagot v. Stevens Scanlan & Co. Ltd.,"* concerning an architect, the judges at first instance held that the plaintiff’s cause of action was in contract alone, and that they could not rely on the collateral remedy in tort; and contract remains the basis of actions against solicitors. If the immunity which long usage has accorded to barristers stems from public policy because of the advocate’s duty to the court, Lawton J.’s extension of it to solicitors acting as advocates is good logic. The court may have to consider that extension, and further, whether it is or should. be limited to legally qualified advocates. And before what tribunals? Is a different duty owed to a court of law than that owed to a statutory or domestic tribunal, an industrial injuries tribunal, or a planning inquiry? [Dancxwerts LJ. The inability to contract would not apply to non-professional advocates,] [Lorp Denning M.R. If the immunity is based on public policy and the duty to the court, it would not extend to advising or paper work; yet mistake or negligence in advising on, say, the variation of a trust deed might involve the loss of. millions of pounds.] 13 13 CBNS. 677. 46 [1964] AC, 465, 24 [1896] 2 Ch, 487, 494. 17 11964}Ch. 506; [1964] 3 W.LR. jo L951} 2 KB. 164, 179-183; 239; sea AE 88 835. 1951] 1 TLR. 371; fidsty 1 All OB [1964] 3 ER. 426, CA. wir 1162; [198343 Att ee $77.1 QB. QUEEN'S BENCH DIVISION As the law now stands, the immunity is only for barristers when they are employed as barristers; but it extends to all their activities, whether as advocate or adviser; and solicitors deliver instructions on the basis that no contractual rights are created thereby. It is difficult logically to understand, when a barrister expects and arranges to be paid and has all sorts of professional agreements to secure that he is in fact paid, why that does not contain all the ordinary ingredients of contract; but, whether or not it ought to be the law, the law at present is that he is incapable of contracting. (Danckwerts LJ. We are not concerned with what the law ought to be, are we?] No; for on this aspect of the matter this court is bound by Kennedy v. Broun™; and if that is to be challenged it must be done elsewhere. But the court ought to consider whether the immunity is well founded and also whether it should extend to work unconnected with advocacy in court. Lawton J. referred to paper work only inferentially. In the present case the complaints are simple complaints of what was done qua advocate; but the frontiers of advocacy are not easy to define. A compromise at the door of the court would fall within the conduct of the cause in court; but is it any more protected than a compromise effected a week before the trial date? Is the spot decision whether or not to call a witness at the trial any different from the advice given by counsel as to which witnesses should attend? If this court decides that the immunity is limited to counsel’s conduct as advocate, diffi- culties may arise, though the precise dividing lines could be tested in other cases at a later stage. On this important matter it would be helpful to all concerned if the court could give guidance as to the frontiers of advocacy. Lawton J. founded his judgment entirely on public policy and hinged it on the duty of counsel to the court and the difficulty which both the court and the client would suffer if the advocate was looking over his shoulder all the time; but that is not an attractive reason. [Lorp DENNING MLR. It was said of doctors at the time when there was a tendency to find them negligent that they thereafter spent too much time doing unnecessary X-rays and so forth to- safeguard themselves.] Inquiries have been made as to the position in the United States where, in a fused profession, advocates are liable for negligence; but it has proved impossible to get statistics, and the number 9 13 CBN. 677. 475 CA. 1966 Rondel v. Worsley476 CA. 1966 Rondel Worsley QUEEN'S BENCH DIVISION [1967] of reported cases over many years of actions by clients against advocates for negligence is infinitesimal, [SatMon L.J. Where the liability admittedly exists it is surely covered by insurance. Cannot the insurance companies give the incidence of such actions?] It is not easy to get figures; but in the nature of things a successful action for negligence in the face of the court is not easy to contemplate, The dangers to which Lawton J. referred are those of the unsuccessful “ nuisance ” actions. {Lorp DENNING M.R. Some litigants complain, and turn on their advocate if they lose a case.] [SALMON L.J. They are just as likely to turn on their solicitors.] But if counsel has been properly briefed the solicitor is protected. [DanckwerTs L.J. Are we to distinguish between the “nuisance” and the successful action?] The mere fact that there may be nuisance claims is not a good ground for upholding the immunity where there is a genuine cause of complaint and where the client can show that if his counsel had conducted the case with reasonable skill and care a different result might have been achieved. A man who chooses to practise in a particular profession ought to be liable for breach of the duty to exercise reasonable skill and care. If counsel discharges his duty to the court he could never be held to have been negligent. The arguments based on public policy, when analysed, do not offer a sufficient basis for the immunity; and the only other basis is that of long usage, the effect of which is limited. If there has been this long usage of barristers making no contracts for services and that has been so fully recognised that the courts have declared barristers to be incapable of contracting, the court should now examine how it followed that they were not liable for negligence. The long usage established over the last two centuries developed when there was no cause of action in negligence for financial loss alone; such loss would be the most likely form of loss flowing from the negligent performance of a lawyer’s work; and that makes it possible to see how the usage gave rise to the immunity. [Dancxwerts L.J. But does not the effect of long usage involve the understanding, though not perhaps in terms of contract, that the advocate is not liable for his mistakes so long as he acts in good faith?)] [Satmon L.J. So a barrister may be as incompetent or careless as he likes and the client has no remedy?]1 QB. QUEEN'S BENCH DIVISION That is what it comes to; but no member of the Bar would subscribe to that. [Dancxwerts L.J. One has to remember that it is supposed to be an honourable profession. I cannot help thinking that many careers would have come to an early end if actions for negligence could lie against barristers. My impression is that barristers had no fear of being sued, but did fear that a mistake might affect their future careers.] [Satmon L.J. We have all given wrong advice; but that does not mean that we have been negligent.] The fear of making a mistake which might affect one’s future career has been a most powerful safeguard; but is this long usage of accepting employment, whether in or out of court, without liability for negligence, a valid basis for continuing it? Are barristers in the position of the bank in Hedley Byrne ** of having the stamp “ Without responsibility” over their chambers? The lay client will never have considered that to be the position unless it has been specifically brought to his attention, What has to be considered is not the mistake of inexperience but the kind of negli- gence which causes genuine loss or damage. A barrister, like other professional persons, could insure against a breach of the duty to take care. [Danckwerts LJ. The sanction of losing a client is very powerful.] That is no recompense to the particular client who suffers injury. In the 15th century, before the division in the legal profession, barristers appear not to have been immune; no clear reasons have been expressed in the reported cases for the long usage since the division into the two branches; and now, in the motherland of the common law, it is sought to claim an immunity based on long usage for barristers alone among the professions. One is bound to ask: In whose interest? If it is not in the public interest and it cannot be in the interest of the client, it must be in the interest of the barrister alone; and that is not a good reason. Mood v. Row* was the earliest report which Mr. Kennedy in Kennedy v. Broun** looked at in the original Roll; but all that can be said of it is that by 1629/30 a barrister could not sue a a solicitor for his fees. The courts in Ireland applied the same rule on the incapacity to contract: see Mulligan v. M’Donagh*® and Robertson v. 20 [1964] A.C. 465. 2213 CBN. 677. 21 | Rep.Ch. 38. 25 (1860) 2L.T.N.S. 136. 477 CAL 1966 Rondel Worsley478 CA. 1966 Rondel Worsley QUEEN'S BENCH DIVISION [1967] MacDonogh.** In the Scottish case of Purves v. Landell*® the House of Lords upheld the rule that an advocate who gave the wrong advice, with disastrous results, could not be sued; but that decision also shows that a solicitor might not be immune from liability for the conduct of litigation. In Perring v. Rebutter ** * the immunity was extended to the special pleader who never went into court; but that case is not authority for any question now before this court. In contrast with the barrister’s immunity was the case of the physicians who, prior to the Medical Act, 1858, could not sue for their fees and who also enjoyed an immunity from action; but they lost it more than a hundred years ago: see Gibson v. Budd." [Satmon L. J. The distinction was that a physician’s negligence would be trespass to the person.] That might have been so; but it is not a relevant distinction since the modern development of the tort of negligence. The view of the court may have been that counsel held themselves out as willing to take any client, having a “cab rank” form of practice, and that if they were to be liable for negligence they should have the right to refuse certain clients. [Lorp Denninc M.R. There are many people—taxi-drivers, inn-keepers, and so on—who cannot refuse to take “ clients.” The barrister is under no legal duty to take any client; it is merely a matter of professional etiquette.] All those categories of persons are obliged to take any client, but they are still liable for negligence. In principle there is no discoverable distinction between barristers and solicitors in the conduct of a case. Yet in Hatch v. Lewis ** where solicitors acted in a matter so closely akin to advocacy as to be indistinguishable from counsel's advocacy the court tried out the issue. [Lorp Denninc M.R. But the plaintiff only got 40s.] It is conceded that there may be ground for the anxiety expressed by Lawton J.?° on the inconvenience of trying a case against a barrister because it might involve a “retrial.” But in Scudder v. 24 (1880) 6 LRJIr. 433. + Gea) 12, CL & Fin, 91, LAS). (1842) 2 Mood. & R. 429. * When Perring v, Rebutter was cited, the members’ of the court remarked on the apiness of the name of the defendant, Later re- search by Mr. G, D, Squibb, Q.C. (President of| the ‘Transport Tri- bunal) into the list of certificated special pleaders in the Law List of 1842 revealed that there was no Mr. Rebutter_ there, Mr. Squibb comments: ‘So it looks as thou; ‘ Rebutter ’ was a jeu d'espirit on the part of the reporter, designed to conceal the identity of the defen- dant.” 21" (1863) 2H. & C. 92. 28 (1861) 2 F. & F467. 29 Ante, p. 470; [1966] 2 W.LR. 300; [1966] 1 AN E.R. 467.1 QB. QUEEN'S BENCH DIVISION Prothero & Prothero,*° a modern instance of an action against solicitors for not seeing one of the witnesses in criminal proceedings against the plaintiff, the trial judge was quite ready to look at all the evidence in the criminal proceedings and in effect to “ retry” the criminal case, though again the plaintiff recovered only nominal damages. " [Lorb Denninc M.R. If an action against counsel in connection with the conduct of a case becomes an attempt to reverse the verdict or to secure a retrial of a case already decided, that might, as a matter of public policy, be very undesirable. Scudder’s case*° seems to illustrate the undesirability of such actions. Here was a man sentenced to a Jong term of imprisonment, who had appealed un- successfully to the Court of Criminal Appeal; whose case was later referred back to that court by the Home Secretary; and who then sought once again to reopen and did reopen the whole litigation and get a different decision, although it was between different parties.] Of course it is not desirable in a case with no merits; but where an honest litigant may have suffered real damage because of his lawyers’ negligence, there seems no logical reason why he should have the remedy of an action against his solicitor but not against his counsel. [Satmon L.J. The aspect of public policy must be the same in each case?] Yes; and the courts are not entirely powerless to deal with the unmeritorious case. The litigation can be controlled in interlocutory proceedings, although they cannot prevent a man issuing a writ. [Lorp Denninc M.R. But the courts do not strike out a case in interlocutory proceedings unless it is plain beyond argument that it should be struck out.] [SatMon L.J. The present case, which is still interlocutory, may bea striking example of that.] Until this case reached this court, the plantiff was conducting his own case. It is something which the court has to put up with. Other professions have to take the difficult individual in their stride. {Lorp Denninc M.R. But the difference is that they do not have to retry a case all over again.] Neither the figures of actions against solicitors nor such infor- mation as has been obtained from countries where an action lies against a member of the fused profession support the view that the removal of the immunity of a barrister would result in a flood of such actions, A barrister would fall fairly and squarely within the 8° “ The Times,” March 16, 17, 1966, 479 CA. 196 Rondel v. Worsley480 CAL 1966 Rondel Worsley QUEEN’S BENCH DIVISION [1967] general principle on the duty of care stated by Lord Morris in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.,* though neither in the reported argument nor in the speeches of their Lordships does there appear any discussion of the position of barristers and solicitors. [Reference was made to the Modern Law Review Vol. 27 p. 144.] On the position in other common law countries see Leslie v. Ball** and Wade v. Ball,’* showing that the courts in Canada did not shrink from the idea of negligence in the face of the court or the possibility of a “‘ retrial.” In New Zealand a man who worked as both barrister and solicitor could be sued for negligence as a barrister, and could also sue for his fees: Watts and Cohen v. Wills ** and Robinson & Morgan Coakle y. Behan.** [Reference was also made to Hodges v. Carter,** Rapuzzi v. Stetson,” and Johnson v. American Life Insurance Co.** from the United States of America.] No one in the United States or Canada or New Zealand appears to have sought to distinguish between the work of lawyers inside and outside the precincts of the court, nor to say that there was no liability; nor did the judges complain about having to “try” the original action over again. Though it is conceded that such a situation might make the administration of the law difficult, diffi- culty in administering the law is not a good ground for depriving a person who has suffered genuine hardship of his remedy against another who has been negligent. Scottish decisions, while supporting the law of England in relation to advocates, have held law agents (solicitors) liable. [Reference was made to Hart v. Frame,*® Burness v. Morris,‘° Moir v. Macrosty,* Ross v. Grigor‘? and Smith v. Grant & Leslie.“*]_ In Batchelor v. Pattison and Mackersy “+ where an action was brought against both counsel and the law agent, the Court of Session distinguished the position of counsel “‘ who is master of the cause” with no right to be paid, and the law agent who was in a different position. [Lorp Denninc M.R. Counsel is still the master of the cause in that he has a duty to the court and is not bound to comply with all the wishes of his client.] 31 [1964] A.C. 465. i og 1938) 237 Alt. 70; 185 Sp. 82 (1863) 22 U.CR. Q B.) 512. z 83 (1870) 20 UCR. (CP) 352 39 (1839) Macl. & Rob. 595, H.L. 34 (1910) 29 N.Z.LR. 58. 4° (1849) 11 Dunlop 514. 85 [1964] N.Z. 650. 41 (1854) 16 Dunlop 895. 36 (1954) 239 N.C, 517; 80 S.E. 4? (1857) 19 Dunlop 834, (2d.) 144. 43 (1858) 20 Dunlop 1385. 37 (1914) 160 App-Div. 150; 145 ¢# (1876) 3 R. 914. N.Y'S. 455 (3d Dept. 1914).1 QB. QUEEN'S BENCH DIVISION The mere assertion that counsel acted contrary to a client’s instructions would not be a good plea to found a cause of action; something more than that would have to be shown. The court in considering whether the immunity attaches only to the conduct of a cause in court should also consider whether, since the decision in Hedley Byrne,** the distinction between solicitors and barristers each acting as advocate can be upheld on the ground that a solicitor’s liability is said to arise in contract and not in tort. [Reference was made to Stokes v. Trumper,‘® Montriou v. Jefferys’ Howell v. Young,** Davies v. Lock,‘* and Groom v. Crocker®] Although the law is that a barrister cannot make a contract or sue for fees, any idea that the work generally is done gratuitously is quite unreal—although in this very case, as on any dock brief, some of the work done by counsel could be said to be done gratuitously; but on the other hand it can be said that the fee on a dock brief was fixed by the profession as part of the etiquette of the Bar, and it is paid in advance. [Satmon L.J. The fact that you render your services gratui- tously does not in the normal case afford any immunity for negligence.) No; the reality of the matter is that the barrister’s honorarium is bargained for in a perfectly normal fashion with the solicitor by a procedure arranged by the profession; there are stringent sanc- tions for seeing that he does get paid; and though it is not the practice, counsel is entitled to take a cheque or cash with the brief before he undertakes the conduct of the case. [Dancxwerts LJ. It goes with the rule that the fee should be marked on the brief.) It has all the appearance of what would in any other walk of life be called a contractual arrangement. If the court declares that the long usage of immunity, which is the equivalent of stamping “ Without responsibility” on all that a barrister does, prevents any suit for negligence against a barrister and that it applies to the whole of the barrister’s work, the court should declare the quality of that usage. Is it a usage established as part of the common law in a field where one would expect it to have been challenged successfully, and because there is no record of such success does the court have to be wary of deciding that centuries of judges and advocates and litigants have been wrong? 48 [1964] A.C. 465. 7 a eae .T.0.8, 125. 46 (1855) 2 K. & J. 232. [1939] 1 K.B. 194; 54 TLR. 47 (1825) 2. C. & P. 113. $61: [1938] 2 AIER. AL 48 (1826) 5 B. & C, 259. 481 CA. 1966 Rondel v. ‘Worsley482, CA. Rondel v. Worsley QUEEN’S BENCH DIVISION [1967] See per Lord Goddard C.J. in Hargreaves y, Bretherton."' Or is it analogous to a trade usage such as the law recognises in other walks of life? Such a usage does not fit easily with the status of a barrister, for the reason that one of the parties in the ordinary way knows nothing about the “trade usage,” as, for example, a client engaging counsel on a dock brief. (Dancxwerts L.J. Ignorance does not make any difference.] The courts do from time to time overrule a long established usage. [Satmon LJ. Does the immunity spring from the usage or from the conception that it was the law that liability could not attach to barristers?] That is difficult to answer; the only reason stated by the court is that of Lindley L.J. in Le Brasseur v. Oakley,* tying it to the inability to sue. [Lorp DENNING M.R. If it is to be considered as a rule of law the reason on which it is based has gone. Law is different from usage.) It is significant that the detailed submissions of Mr. Kennedy in Kennedy v. Broun ** do not place any reliance on usage. Graham Swanwick Q.C. and Reginald Batt for the defendant. The immunity attaching to the Bar rests on two grounds: (1) public policy and (2) long usage. On public policy one has to take the totality of all the considerations which apply: the special relationship, the difficulty of retrials, the principle embodied in the maxim interest rei publicae ut sit finis litium have to be put into one side of the scale and weighed against the risk of genuine hardship to an individual litigant being deprived of an action for an injury. Where immunities and privileges are given, there is always the risk of some hardship; with Parliamentary privilege, where it is important that members should be allowed to speak freely, they may defame persons who have no remedy; with diplomatic privilege where by reason of the importance of the comity of nations “the merest servant of an embassy may be protected against prosecution for shoplifting; with the privilege attaching to the courts, extending not only to judges and counsel but also to witnesses. Two outstanding and striking facts cannot be explained simply by. saying that the immunity of the barrister has been founded on 51 [1959] 1 Q.B. 45, 54; [1958] 3 52 [1896] 2 Ch. 487, 494. W.L.R. 463; [1958] 3 AIT E.R. 122. 5313 CBNS. 677.1 QB. QUEEN'S BENCH DIVISION a misconception: (1) There is no single case in the whole course of English legal history since the Bar emerged as a separate profession in which a barrister has been sued successfully by a client for negligence, and no decision that he could not be so sued has ever been the subject of an appeal; and (2) apart from one isolated suggestion in argument in the Year Book in 1435, and certainly since 1791, the immunity of the Bar from suit for negligence, at least in the realm of advocacy, has been recognised as part of the common law of England, in marked contrast to the liability of other professions and occupations. There must be a reason for it. That reason is not that a barrister has never been negligent, although there are many sanctions inherent in this honourable profession against negligence, for it is a profession where the glittering prizes are reserved for the sharp sword and the weak go to the wall so that everyone is careful to see that he does his best in a profession where members stand or fall on their reputations. Nor can it be because clients have never been dis- satisfied or vindictive or aggressive or loth to sue; for in this profession where, in a civil action one side or the other is bound to be disappointed with the result, and in a criminal case there is at least a 50 per cent. probability of a conviction there are all the ingredients for actions, and those have existed throughout legal history. Nor can it be because the relationship of counsel and client has not been regarded as sufficiently close to found liability where it might be founded in other spheres; for there is no closer relationship than that of client and barrister. Nor is it because of any relevant misconceptions as to the law where, as between the immediate parties, one has undertaken for another a task involving the exercise of care and skill, for that law has been clear for centuries in medical and other cases decided many years before the cases involving barristers to which the court has been referred, There is nothing’ new in the decision in Hedley Byrne & Co. Lid. v. Heller & Partners Ltd.** in regard to the requirement of care as between immediate parties. Its novelty is in what is said about the liability to remoter parties for whom someone had undertaken, gratuitously or otherwise, to exercise care and skill. Nor does it rest on a misconception as to the nature of the damage necessary to found an action in negligence. Nor can the striking contrast between the cases arising year after year and involving different professions and occupations whose members have been held liable for negligence on the one hand, and the immunity of barristers on 54 [1964] A.C. 465. 483 CAL 1966 Rondel v, ‘Worsley484 CA. 1966 Ronde! v. Worsley QUEEN'S BENCH DIVISION [1967] the other, have escaped dramatic notice. The contrast must have been fully appreciated at all times, Yet it has continued ever since the Bar emerged as a separate profession about 400 years ago. The court should not place too much reliance on the Year Book which records the observation of one judge on the liability of counsel in the year 1435 during argument. That has not the force of authority. [Lorp DENNING M.R. Few of us would want to be bound by our interlocutory observations in argument.] Where over the centuries situations must often have arisen which would call into question a proposition of law, but where all attempts to call it in question have failed so that it has become part of the common law of England, the court will not lightly assume that the accepted law has been wrong all the time. On the contrary, a proposition of law which has achieved that status should stand unless it is plainly shown to be illfounded. The court should approach it on the basis that it probably had a sound origin and look for reasons to support rather than to destroy it, and should not conclude, merely because the older cases do not give reasons at all or do not give full reasons for upholding the immunity, that there are no good reasons. We all recognise that an accepted proposition is the hardest for which to find authority: see per Lord Lyndhurst L.C. and Lord Brougham in O’Connell and others v. Regina ** on the force of long-standing usage. It would be a cheap and unworthy gibe to suggest that for 175 years the Bar has for its own purposes arrogated to itself a cosy little immunity and that past generations of judges have fostered it out of an unworthy sympathy for their old careers. This policy of the common Jaw and this immunity are well founded, first on public policy and secondly on usage. {Lorp Denninc M.R. Do you confine it to the conduct of cases in court or do you put it more broadly?] On public policy it would be sufficient for the present case to confine the immunity to the conduct of a cause in court. There are three logical places where a line could be drawn: (1) that the immunity extends over the whole field of a barrister’s professional duties. That has been the general understanding, and there is no authority to the contrary. (2) That it is limited to what has actually occurred in court, and is analogous to the privilege attaching to witnesses within the walls of the court, and possibly extends to affidavits and evidence in court. (3) That it extends to cover $8 (1844) 1 Cox C.C. 413, 508, 510 et seq.1 QB. QUEEN’S BENCH DIVISION matters arising in the conduct of litigation or criminal prosecution and defence. [Sacmon L.J. If the immunity stems from usage it must cover everything.] [Lorp Denninc M.R. And if it stems from public policy it covers the litigation aspect?] ‘When an immunity is granted on grounds of public policy it often has to include the totality because it is difficult to separate it into parts. The rough has to be taken with the smooth. The ground of public policy is founded on the tripartite relation- ship of the barrister with his client, with the court, and with the public. That is a unique feature. Other professions or callings may include one or two of those relationships, but no other has the triple duty. First, the barrister’s duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practising, however unattractive the case or the client, An example is the dock brief accepted by Mr. Worsley in this case: it is unlikely that if he had had a choice he would have been prepared to defend Mr. Rondel for £2. 4s. 6d. If Mr. Rondel had wished to be represented by counsel in the present proceedings, is it likely that any member of the Bar, knowing that if he failed he might be sued for negligence by a person who is already suing another barrister for alleged negligence, would willingly undertake his case? If a client is in prison with nothing much to occupy his spare time, and can envisage an occasional trip to more pleasant surroundings—particularly now that legal aid may be granted for an ex parte application by someone whose merits cannot be tested on such an application—there is a real danger that such people would find it difficult to be represented if counsel were liable for negligence. The suggestion that the Bar does in fact get round this obligation to the public by fixing unrealistic fees cannot be sustained, for it is known that a member of the Bar who is in breach of his duty to appear for anyone who wants his services is liable to be brought before the Benchers of his Inn if he were shown to have demanded an exorbitant fee to avoid taking the case. It is true that there is no legal sanction to enforce this duty; but all those who practise at the common Jaw bar have from time to time been confronted with cases and criminals they would have liked to refuse but have accepted as a burdensome duty and carried out and defended to the best of their ability. That is a real service to the public which is not owed by any other profession. Doctors in the National Health Service are not required to take 1 QB. 1967. 32486 cA. 1966 Rondel v Worsley QUEEN'S BENCH DIVISION [1967] anybody on their list, and if a doctor wishes a patient to be trans- ferred from his list it can be done. A solicitor is not obliged to take any client, but can pick and choose as he will. In our law rights and obligations tend to be complementary; but in the cases where attempts have been made by clients to sue barristers for negligence, it is significant that where reasons are given for dismissing the claims they are reasons of public, policy. The immunity is not put on the ground of inability to contract: see Swinfen v. Lord Chelmsford ** and Batchelor v. Pattison and Mackersy.*" Secondly, counsel has the duty and right to speak freely and independently without fear of authority, as in Erskine’s famous words: without fear of one’s opponent, without fear of the judges, and also without fear of a stab in the back from one’s own client. Thirdly, there is undesirability and difficulty of “ retrials.” If the immunity went, there would be a flood of actions: see “‘ The Times” newspaper today reporting Ex parte Boal **—the case of a man who after the Court of Criminal Appeal had rejected his application for leave to appeal, sought to issue a writ of habeas corpus, complains of counsel’s conduct, and wants to reopen the whole case. That is only one example of the many which would result. The authorities which bind this court in relation to the barrister’s incapacity to contract—Kennedy v. Broun,"* Mostyn v. Mostyn, In re Le Brasseur and Oakley* and Wells v. Wells *—are all attempts to recover fees. In the cases of claims against barristers for negligence—Fell v. Brown,** Perring v. Rebutter ** and Swinfen v. Lord Chelmsford **—the only reasons given for the immunity are those of public policy; and those were repeated by Lord Esher MR. in Matthews v. Munster in reference to matters connected with the conduct of a case in court.** And there is an eloquent passage in Kennedy v. Broun’ that if counsel were bound by contract it would lower the standards of duty by which he was already bound. [Reference was also made to Blackstone’s Com- mentaries, Vol. III] As the law now stands, counsel know that they have to do their best, for if they do not there is ample sanction in that if they get a bad reputation with a solicitor he will never come 56 SH. & N. 890. *3 Peake 131. 73 RR 84 2 Mood. & R. 429, 88 “ The Times,” June 15, 1966. 65 5H. & N. 890, 904, 909. 5° 13 CB.NS. 677. a BD. 141, 143; 4 a5 (GiApe 457." TLR. 102, io 118: 56) 2 Ch, 487, 87 43 CENS ‘677, 137-738. 2 [1914] P. 157,1 QB. QUEEN'S BENCH DIVISION to them again. The existing immunity does not present any great danger. Even in countries where an action lies very few have succeeded; and one does not know whether advocates in those other countries have the same high standards as in this country, particularly where they work in firms and the legal profession is fused. [Reference was also made to Swinfen v. Swinfen.**] The novelty of the decision in Hedley Byrne * was not its extension of the action for negligence. Pippin v. Sheppard '® was an action for negligence brought against a doctor irrespective of contract in 1822, [Reference was also made to Coggs v. Bernard,” Shiells v. Blackburn,’ Seare v. Prentice ** and Chorley v. Bolcot."*] In Lanphier v. Phipos** where the action agairist a doctor was brought by a husband for treatment of his wife, it was said that if a person entered a learned profession there was a duty of care, and the example given was that of the attorney. [Lorp Denninc M.R. What was said there would apply to the barrister.) But in 1842 in Perring v. Rebutter’® Lord Abinger stated categorically that it did not apply to a barrister. The contrast between the successful cases against physicians and surgeons con- temporaneously with the failure of cases against barristers must always have been striking; but it has been consistently upheld and followed. The contrast is not accidental but deliberate: see Banbury vy. Bank of Montreal, per Lord Atkinson ™ on the general duty of care in a case involving a banker. As to the position of solicitors, though it is no part of the Present respondent’s case to argue for their immunity, there is in fact no decision of a superior court but only a county court case—Clarke v. Couchman™*—where a solicitor advocate was successfully sued in respect of the conduct of a case in court; and that is no authority. The solicitor is plainly liable almost up to the door of the court; but if an action were brought against a solicitor for his conduct of a case in court it would not succeed. [SALMON L.J. If public policy requires a barrister to be immune presumably the same immunity is required for the solicitor whose duty to the court is no different from that of the barrister?] $8 (1857) 1 C.B.NS. 364, 4 (1791) 4 TR. 317. 8° [1964] AC. 465. |. 75 (1838)-8 C. & P. 475. 70 (1822) 11 Price 400. 18 2 Mood. & R. 429. 1 (1703) 2 Ld. Raym. 909, 77 [1918] AC. 626, 686; 34 72 785) | Hy 158, TLR, 518, . 78 (1807) 8 East 348. 76 (1885)' 20 LJ. 318.488 CA. Rondel v. Worsley QUEEN'S BENCH DIVISION [1967] There are important differences. The solicitor can sue for his fees. He can choose or discard a client: see The Professional Conduct and Etiquette of Solicitors by Sir Thomas Lunn (1960). [Dancxwerts L.J. Litigants in person frequently tell the court that they cannot get a solicitor to take their case.] That is so. Further, the solicitor is an officer of the court and can be disciplined by the court, {Lorp Denninc M.R. The court can discipline a barrister too.] But the barrister is not an officer of the court in the same sense as is the solicitor. And there is the further important difference that a very large part of the solicitor’s work is delegated to his staff which may consist of unqualified persons, and for that reason he could not claim immunity where his servant or agent had been negligent; whereas a barrister works entirely on his own, and does not delegate work save to another member of the Bar who is ex hypothesi equally qualified. Again the barrister is incapable of contracting while the solicitor can only be sued in contract. It is interesting to note that the case of the solicitor—Hatch v. Lewis"*— referred to as involving a “retrial” was tried by Pollock C.B, in 1861 just a year after the same judge had heard Swinfen v. Lord Chelmsford *° so that the arguments in those two. cases represent the contemporary understanding of the position of the two branches of the profession: see per Pollock C.B. that counsel were in all cases responsible for the conduct of the case in court, and Note (a).** It is quite unrealistic to compare the barrister with the cab driver, the innkeeper, or the common carrier, for they operate in quite different spheres, [SALMON L.J. One does not go to them for advice.] _ No: and none owes a duty to the court; nor in those callings does the personality of the customer affect the performance of the task, There are historical reasons why the innkeeper was obliged to receive any traveller; a very limited duty is imposed by statute on drivers of hackney carriages to accept any fare, and the per- sonality of the fare does not affect the driving of the cab. As to the common carrier, he has always been able to elect to operate on the basis of a special contract, and his obligations are limited by statute: see the Carriers’ Act, 1830, There is no true analogy with the profession of the barrister, in respect of which the common Jaw has rightly recognised that the correlative rights and duties of its members are sufficiently controlled by*the tradition of the Bar, T 2F.& F, 467. *1 2 F. & F, 467, 477. 89 SH. & N. 890.1 QB. QUEEN’S BENCH. DIVISION the discipline of the Inns of Court, and long usage. For hundreds of years and generations of judges public policy has recognised that this immunity is required; and absolutely nothing has happened to require the position to be altered, (Lorp Denninc M.R. Unless it be the decision in Hedley Byrne.**] That has not altered the relevant position in any respect. The triple duties and loyalties of the barrister are unique in their totality. He is to some extent a minister of justice. He cannot have regard solely to the interests of his client or to his instructions. He cannot allow a client or a witness to commit perjury. In a criminal case where his client admits his guilt, counsel has to advise him to plead guilty and not to waste public time or money contesting an unreal issue. He has a duty not to be a party to any deception of the court and not to attack opposing parties or witnesses unless the attack is relevant; and that has a sound basis, for many clients wish counsel to direct questions to rake up some old conviction or indiscretion, and it is the barrister who has to say “No.” He has to cite all relevant authorities, whether they tell for or against his client’s case. In divorce he has a duty to disclose collusion or condonation which may bar a client’s petition. As a private Prosecutor he has stringent duties and limitations; he has to main- tain the same attitude of detachment as if he were prosecuting on behalf of the Crown and instructed by the Crown. He must inform the accused of previous convictions of the witnesses whom he proposes to call for the prosecution and of inconsistent statements made by his witnesses. On the other side there is the incapacity to sue for fees which fits into the pattern of immunity and is in a sense a quid pro quo. Then there is a further feature relating to court matters only: that quick decisions have to be made in court and barristers should not be inhibited in making those decisions nor fearful of taking independent and courageous decisions, even against the instructions of their client, nor fearful of exercising their own judgment lest they be called negligent if it turns out badly. Loss of immunity would inevitably impair the complete control of a case which decisions such as Swinfen v. Lord Chelmsford ** say counsel has and ought to have. There would be a tendency, if a client wanted counsel to call witnesses, to say: “It will be safer to call them for if I do not he will sue me.” There would be a tendency to play safe. There might be the fatal question too many; the dig in #2 [1964] A.C. 465. #3 SH. & N, 890. 489 CA. Rondel ¥. ‘WorsleyCA. 1966 Rondel ¥, Worsley QUEEN'S BENCH DIVISION 11967) the back; the tug of the gown: “Ask him so and so.” The wise advocate resists the twitch of the gown and shuts his ears to the suggestion. Again without the immunity there would be a danger that cases would last much longer. There would also be a tendency to hedge in giving an opinion. Though counsel might not go so far as to write “E. & O. E.” at the foot, as other professions do, would not phrases slip ike: “I must not be taken to guarantee the soundness of this opinion but on the whole my view is so and so”? Would not that destroy a little of the certainty and the reliance which clients rightly place on counsel’s opinion? [Lorp Denninc M.R. A client always wants Yes or No, right or wrong.) ‘When one has reached the eminence of a Lord Birkenhead one might dare something like his famous opinion: “There is no answer to this claim. The damages will be enormous”; but for the lesser man there would be a tendency to lengthen cases, to lengthen pleadings. The lay client is ignorant about procedural matters and may insist on thinking that he knows best. He must be safeguarded by the barrister having authority. Suppose a barrister finds out during a case that he has made a mistake, It may be too late to put it right. Would there not be a tendency not to reveal it and hope that no one would ever spot it? Whereas, as things are, he would say: “‘ Let us apply to see whether we can put it right.” At least there is no temptation to conceal it. The dock brief would go for no one could be expected to take on the defence of any criminal for £2. 4s, 6d. if he might be sued for negligence. [Satmon L.J. Legal aid has largely replaced the dock brief. I think it would be a good idea if legal aid were granted for dock briefs; but I do not know that it would be good for the Bar.] There are two reasons against it: First, there is the person whose means are too great for legal aid but who wants to take advantage of the dock brief; and secondly there is the person without means who has a right to have his point of view put to the court by counsel. The dock brief would have to go and counsel would be able to claim the right to pick and choose his clients. [Reference was made to Moss v. Weaver.**] On the second ground of long usage, the usage under question has gone on for as long as there has been a separate Bar. [Reference was made to Reg. v. Doutre **-on the extent of the functions of the *% [1928] 2 K.B. 520, 88 (1884) 9 App-Cas. 745, P.C.1 QB. QUEEN'S BENCH DIVISION member of the Bar; to Sewell v. Corp**; Helps v. Clayton*’ and Heath y. Dean.**] If a general usage is applicable to a particular trade or profession its members will be accepted as having dealt within the scope of that usage, The usage need not have existed from time immemorial, nor need it be annexed to a contract. Whether this usage has been universal over the whole realm for so long that it has become part of the common law or whether it is a usage of the profession which again is universal throughout the profession and recognised as one to which those employed in that profession must subscribe, the defendant in this case can rely on that usage as well as on public policy. The two are complementary and not mutually exclusive. [Mr. Swanwick then took objection to the amended statement of claim submitted on behalf of the plaintiff Rondel on the ground that in the court below Lawton J. had asked the plaintiff the question: ‘‘Are you saying that as a result of Mr. Worsley’s negligence you were found guilty whereas you were not guilty?” and that the plaintiff had replied: “No.” The plaintiff having been given three opportunities to amend his statement of claim, and having made that admission to the judge, was it fair to the defendant, seven years after the event, to allow this amended statement of claim which alleged that as a result of counsel’s conduct the plaintiff had been wrongly convicted?) [Sarmon L.J. And the judge, after receiving that answer from Mr. Rondel, went on to deliver 24 pages of judgment as to whether in law he should have an action. It is astonishing that the statement of claim was not struck out.} The plaintiff denied that he had given the answer “No” to the judge and asked to see the contemporary note recording it. He told the court that though he might not in the normal course have been acquitted the result would have been different if counsel had so conducted the case as to show that the physical injuries inflicted by the plaintiff in the assault could only have been caused in the way he claimed. He would not have been found guilty. [Satmon L.J. You were charged with causing grievous bodily harm, You admitted that you had caused the injuries but said that you caused them with your teeth and hands and not with a knife? That was your defence?] The plaintiff: That was the basis of it—that the “ victim ” was the attacker. 86 (1824) 1 C. & P. 392. #8 [1905] 2 Ch. 86; 21 T.L.R. 404, 81 (1864) 17 C.B.NSS. 553. 491 CAL 1966 Rondel y, Worsley492 CAL Rondel Ve Worsley QUEEN'S. BENCH DIVISION [1967] [Dancxwerts LJ. I understand that you admitted that you bit off the lobe of the man’s ear.] The plaintiff: It sounds difficult to understand in cold blood but I can demonstrate it. . . . The way it was left to the court was that it was probably done with a knife, If Mr. Worsley had not made mistakes it would also have been shown that I was sent to the premises legally; but he made no effort to show that. [Lorp Denninc M.R. So you really meant to say all the time that if it had not been for Mr. Worsley’s negligence you might not have been convicted and you say now that the record of your answer to the judge is a misunderstanding?] The plaintiff: Yes. O'Connor Q.C. in reply. Whatever was the accepted position in the 19th century the court should consider how far a barrister’s immunity might have been continued because when the ordinary action in negligence emerged there was linked with it the view that no action for negligent advice could lie where the loss was merely financial. That view was still in existence after Donoghue v. Stevenson *® and any edition of Salmond on Torts will show that that was thought to be the law: see Old Gate Estates Ltd. v. Toplis & Harding & Russell.’ Before the decision in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.** damages were not considered possible where there had been no injury to the person or property; and the damage to be expected in respect of negligent conduct by a barrister would normally be financial. Suppose that through the negligent conduct of a criminal defence there is a conviction and the client is imprisoned; and that he then brings an action seeking to recover damages at large for the imprisonment. Is it then to be said that that was false imprisonment—for there is no cause of action for imprisonment other than false imprisonment, and it is not a heading of injury which stands easily in an action for negligence? [Lorp Denninc M.R. I suppose it would be. If you negli- gently lock a door so that a man cannot get out, would his action be for negligence or for false imprisonment?] Unless it were for false imprisonment it is doubtful whether he would have any cause of action, unless he could show some damage. From the point of view of public policy a man who was in a position to say: “By your negligence I have been in prison for six months when I ought to have been at liberty” ought to be entitled to damages, #9 [1932] A.C. 562; 48 T.LR. a ised 3 All ER. 209. 494, H.L(Sc.). %1 [1964] A.C. 465.1 QB. QUEEN'S BENCH DIVISION Financial loss, which was probably thought to be the ordinary consequence of a lawyer’s negligence, certainly appeared to be barred until Hedley Byrne**; but the door which that decision opened was that loss flowing from negligent advice might be recoverable. Information has been obtained about claims against solicitors though it is not possible to break it down into claims for negligent work in court or out of court; it is available if the court wishes to Teceive it. Swanwick Q.C. It is very unusual for evidence to be given in the Court of Appeal. It would be of very limited value, because one does not know in how many of these cases solicitors have been able to say “We relied on counsel,” that being a solicitor’s greatest protection. O'Connor Q. C. Insurance brokers carrying solicitors’ pro- fessional negligence policies state that the claims on the policies run at about 134 per cent. a year, and in the last three years not one has gone anywhere near the court. From about 800 policies something over a hundred claims per annum. There is no information as to what proportion of those claims have turned out to have no merits, The figures given are merely a sample to show that there is a considerable body of claims being made on professional people, which do not reach the courts. Swanwick Q.C. replied on the Old Gate case.*? Cur adv. vult. October 20, 1966. The following judgments were read. ‘Lorp DENNING M.R. In stating the facts I have had recourse not only to the papers put before us by the parties but also to further papers which I have bespoken from the Court of Criminal Appeal. During the night of Saturday to Sunday, April 5, 1959, there was a dance at a house, 13 St. Stephen’s Gardens, W.2. In the early hours, at 2.30 in the morning, a man named Manning was at the door. He was the doorkeeper. Norbert Fred Rondel went to the house. He went, he says, on behalf of Peter Rachman, the landlord. He spoke to Manning. There was an outburst of violence. Manning was severely injured. His hand was so damaged that it had to have nine stitches. And he lost the lobe of his right ear. Rondel admits that he did it, but he says that he was 1 [1964] A.C. 465. 92 [1939] 3 All E.R, 209. 493 CAL 1966 Rondel v. WorsleyQUEEN'S BENCH DIVISION [1967] attacked by Manning. He was looking for prostitution and acted in self-defence. When it was suggested that he used a knife, he hotly denied it. He claims to be an expert in judo and karate. It would be degrading, he says, for him to use a knife. He told the judge in chambers: “I tore his hand in half and bit part of his ear off.” Even before this court he exulted in his achievement. “Tt sounds difficult in cold blood,” he said, “ but I can demonstrate it.” We did not accept the offer. On Thursday, May 28, 1959, Rondel was arraigned in the dock at the Old Bailey before the Recorder of London. He was charged with causing grievous bodily harm to Manning with intent so to do. He pleaded not guilty and was put in charge of the jury. At that stage he was not represented by counsel. The counsel for the prosecution opened the case and called the first witness, Manning. After Manning had given evidence-in-chief, the recorder told Rondel he could cross-examine Manning. Rondel asked if he could have legal aid. The recorder refused his request, but told him that if he had £2 4s. 6d. he could have the services of any of the barristers then in the court. What we call a “ dock brief.” Rondel did not have £2 4s. 6d. but someone in the gallery found the money. Rondel then picked upon a barrister of nearly four years’ standing, Mr. Michael Worsley. In accordance with the tenets of the Bar, Mr. Worsley accepted the task of defending Rondel. The recorder adjourned the case so as to enable Mr. Worsley to see Rondel and prepare his defence. Mr. Worsley saw Rondel. He heard his account of how the harm was done to Manning and of the witnesses available. On the next day the trial was continued. Mr. Worsley cross-examined the witnesses for the prosecution, including Manning himself, a doctor and a detective sergeant. Mr. Worsley called Rondel to give evidence on his own behalf and also a witness, Miss Hogan. He addressed the jury on Rondel’s behalf. The recorder summed up. The jury found Rondel guilty of causing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to 18 months’ imprisonment. After his conviction Rondel applied to the Court of Criminal Appeal for leave to appeal. His grounds covered 15 closely written pages. His main concern was to show that the injuries to Manning’s hand were not caused by a knife but by his hands. But he also made complaints against Mr. Worsley, saying: “ My court brief barrister actually got minor facts mixed up and his knowledge of some quite important facts was1 QB. QUEEN'S BENCH DIVISION inadequate for cross-examination purposes . . . my idiotic counsel, all J wanted him for is to get me an adjournment to call witnesses and arrange for his (Manning's) hand to be examined. I gave these instructions to him in writing. ... I felt somehow my counsel did not believe in my complete honesty and therefore did not examine that night doctor. I would have examined him for hours if necessary.... It seemed my barrister had another client waiting, for he seemed in a terrible hurry. He did not even ask Sergeant McCann whether he saw a bottle (broken) at entrance to porch. 1 can prove I was working for Rachman by ordering inspection of the firm’s books.” If there was anything in these complaints—sufficient to suggest there might have been a miscarriage of justice—the Court of Criminal Appeal would no doubt have given leave to appeal. But they evidently thought there was nothing in them. They refused his application. So the conviction and sentence stood. After serving his sentence, Rondel was released. He soon got into trouble again. In September, 1960, he was sentenced to three years’ imprisonment for causing grievous bodily harm. After serving that sentence he got work as a club doorman. Whilst so employed, on February 15, 1965, nearly six years after the original trial, Rondel issued a writ against Mr. Worsley claiming “ damages for professional negligence.” He acted in person and wrote out his own statement of claim. A few months later he was in trouble again. On July 14, 1965, he was sentenced to 18 months’ imprison- ment for stealing. While in prison he wrote out another statement of claim against Mr. Worsley, which the judge in chambers described as “ well-nigh unintelligible.” Eventually he was repre- sented by a solicitor, Mr. Zander, who prepared a draft statement of claim in proper shape. I will not read it in full. Summarised, it is a complaint that Mr. Worsley was negligent in the conduct of the case in three respects: First, he failed to cross-examine the witnesses for the prosecution so as to show that it was impossible for the injury to have been caused by a knife. Secondly, he failed to elicit from Miss Hogan, one of the witnesses for the defence, that Manning had several friends who could have assisted him in the fight. Thirdly, he failed to elicit, or to call witnesses to prove, that Rondel was employed as rent collector and caretaker and was authorised to go onto the premises. The draft statement of claim also alleged that, in consequence of this negligence, Rondel was wrongly convicted and sentenced to 18 months’ imprisonment. I desire to say at once that, if an action does lie against a barrister for negligence in the conduct of a case, the draft statement496 CA. 1966 Rondel v Worsley DENNING QUEEN’S BENCH DIVISION [1967] of claim does disclose a cause of action. The question is whether such an action does lie. The law as it stood before Hedley Byrne I will first consider the law as it was understood by the pro- fession up till May of 1963 when the House of Lords decided Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.* Beyond doubt the barrister was treated differently from other professional men. He could not sue for his fees. He could not even make a contract for them with his client. Nor with the solicitor who represented the client. The obligation to pay him was an obligation which was binding in honour, not in law. Such was the position of the advocate in the Roman law. Such was the position of the barrister in our English law. It was the tradition of centuries that what he received from the client was a gift or honorarium, and not a stipulated wage. To this day his very robe bears witness. At the back of it there is still the flap of the little pocket where the client could place his gratuity. In the pretence that the barrister did not know he was being given a reward! Over 200 years ago Sir William Blackstone compared our serjeants at law and barristers with the ancient Roman orators: “These indeed practised gratis, for honour merely, or at most for the sake of gaining influence: and so likewise it is established with us, that a counsel may 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”: see Blackstone’s Commentaries, Vol. III, p. 28. This statement of Blackstone was challenged 100 years ago in the great case of Kennedy v. Broun.’ Mr. Kennedy was a “local” counsel practising in Birmingham. He was instructed by Mrs. Patience Swinfen to recover for her a vast estate. He moved to London and took chambers in the Temple for the purpose. She promised him £20,000 if he won the estate for her. After years of endeavour he succeeded. She got the estate, which was valued at £60,000. And then she refused to pay him. He cited all the authorities on the subject, both from the Roman law and from our English law. Yet he failed. He did not recover a penny for all the work he had done. The Court of Common Pleas, 2 [1964] AC. 465; [1963] 3 8 (1863) 13 C.B.N.S. 677. W.LR. 101; [1963] 2 All E.R. 575, HL. (E.).1 QB. QUEEN'S BENCH DIVISION consisting of Erle C.J., Williams, Byles and Keating JJ., held that “the relation of counsel and client in litigation creates an incapacity for hiring and service as an advocate.” That case was regarded as decisive. It was ever after accepted that a barrister could not sue for his fees. The reason given was because he was incapable of making a contract for them. This incapacity was considered by the lawyers of that time as carrying with it an important consequence. The coin had its obverse. They turned it over to see what was on the other side. On the one there was the obligation of the barrister to render services. On the other there was the obligation of the client to pay his fee. Just as the one obligation was binding in honour, but not in law, so was the other. Just as the reason of the one was rooted in an incapacity to contract, so was the other. Both were thought to stand or fall together. So we find that, just as the judges rejected the barrister’s claim against his client for fees, so also they rejected the client’s claim against the barrister for negligence or breach of duty. The first attempt was made in 1791 in Fell v. Brown,‘ when a barrister was engaged to settle a bill “in Chancery. He put into it scandalous and irrelevant matter. So much so that it was ordered to be corrected and the client had to pay the costs. The client brought an action in the King’s Bench against the barrister for unskilfully and negligently settling the bill. The client instructed Thomas Erskine, then at the height of his fame. He argued that a barrister should be liable for gross negligence, just as a physician. But Lord Kenyon, then Chief Justice, expressed a strong opinion that the action could not be maintained. He said that “ he believed this action was the first, and hoped it would be the last, of the kind.”* Erskine thereupon gave up and submitted to a non-suit. The Chief Justice told Erskine he would take a note of the case so that he could move for a new trial. But Erskine never did so. He accepted the ruling. Fifty years later in Perring v. Rebutter. a certified special pleader, appropriately called Rebutter, drew the pleading in an action so badly that the defence failed. The client brought an action on the case against him for negligence. It came before Lord Abinger C.B., who as Sir James Scarlett had been one of the ornaments of the Bar. He said®: “Such an action was certainly not main- tainable against a barrister, and in his opinion there was no distinction between the case of a barrister and that of a certificated « (1791) Peake 131, 132. ® Ibid. 430. ® (1842) 2 Mood. & R. 429. 497 CA. 1966 Rondel v. Worsley Lor DewvinoRondel v. Worsley Lorp Dawuino MR. QUEEN'S BENCH DIVISION [1967] special pleader.” In 1860 came the celebrated case of Swinfen v. Lord Chelmsford,’ where counsel of great eminence was engaged, Sir Frederick Thesiger. He had been Attorney-General and after- wards became Lord Chancellor under the title of Lord Chelmsford. Yet he made a serious mistake and was sued for damages. The facts are worth stating. So please bear with me. Old Mr. Samuel Swinfen owned a large landed estate at Swinfen. He was aged 80 and getting senile, He had made a will leaving all the estate to his only son. But his son died suddenly, leaving a young widow, Mrs. Patience Swinfen. Three weeks after the son’s death the old man made a will of five lines in which he said: “I give to Mrs. Swinfen, my son’s widow, all my estate at Swinfen.” A couple of weeks later the old man died. The will was challenged by the heir-at-law, Captain Swinfen, who was the old man’s nephew, being his brother’s son. Captain Swinfen said that the will was invalid because the old man was in such a bad mental state that he was incompetent to make a will: and that the estate should descend to him, Captain Swinfen, as heir-at-law. The Master of the Rolls directed that the validity of the will should be tried at law. The issue came on for trial by a jury at the Stafford Assizes. Young Mrs. Patience Swinfen, through her solicitor, instructed Sir Frederick Thesiger to appear for her. The hearing began on a Saturday. After the first day Sir Frederick thought that the case was not going very well for Mrs. Swinfen. He suggested a com- promise. She would not accept it. She told Sir Frederick that she wished the case to go to the jury. On the Sunday she telegraphed to him: “ The offer is refused.” Meanwhile, however, her solicitor received some information which made the case look worse for Mrs. Swinfen. It was to this effect: One of their witnesses would have to admit, if asked, that on the very day that the will was signed, young Mrs. Swinfen would not let the old man be seen by his sister-in-law. On the Monday morning at 8 a.m. the solicitor saw Sir Frederick and gave him this information. He was so dis- turbed by it that he thought the case should be settled at once. The solicitor declined to take responsibility for it. He wanted to wait until Mrs..Swinfen arrived. But Sir Frederick thought that would be too late. He said that he would take on himself the responsibility. So, before Mrs. Swinfen arrived, Sir Frederick agreed with the other side to settle the case. The terms were that Mrs. Patience Swinfen was to convey the Swinfen Estate to Cap- tain Swinfen, the heir-at-law, and he was to pay her £1,000 a year 1 (1860) 5 H. & N. 890.1 QB. QUEEN'S BENCH DIVISION for life. Thereupon the case was withdrawn from the jury. To do this, by consent, a juror was withdrawn. A few minutes later Mrs. Swinfen arrived. She was very upset. She repudiated the compro- mise on the ground that it was made without her authority. The heir-at-law sought to enforce it against her. Twice he applied to put her in prison: but he failed: Swinfen v. Swinfen.® Next he applied for specific performance. Sir John Romilly M.R. refused the application: Swinfen v. Swinfen.? He held that Sir Frederick had gone outside his authority altogether. He was instructed only to conduct the trial of the issue at Stafford and had no authority to dispose of the whole of the estate. The Master of the Rolls said that Sir Frederick had no more authority than “a coachman, employed to drive a carriage, would have authority to exchange it"*° The Master of the Rolls directed that there should be a new trial as to the validity of the will. This decision was affirmed by the Lords Justices. The issue was retried before another jury at the Stafford Assizes. The jury on this occasion found in favour of the will. Captain Swinfen applied for a new trial but it was refused.** So the will was upheld and Mrs. Patience Swinfen succeeded to the whole estate. The events had proved Sir Frederick to be wrong. Mrs. Patience Swinfen then sued Sir Frederick for damages. The case raised many points, but the only point material for present purposes is this: She had wished the issue to be tried by the jury, and Sir Frederick had prevented it. He had “ consented to a juror being withdrawn and so prevented the case being tried.” By so doing, he had wasted all the money expended by his client on the first trial. Sir Frederick was clearly guilty of a “ neglect and violation of duty.” He had no authority to stop the case, and he ought to have known it. Yet he was held not liable. The Court of Exchequer, consisting of Pollock C.B., Martin, Bramwell, Channell and Watson BB., held unanimously that “no action will lie against counsel for any act honestly done in the conduct or management of the cause—including the with- drawing a juror,” *? giving as an illustration that “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 8 (1856) 18 C.B. 485 and (1857) 2° Ibid. 558. 1 CBNS. 364. 31 (1858) 27 Beav. 148. ® (1857) 24 Beav. 549. 32 (1860) 5 H. & N. 890, 923.500 CAL 1966 ‘Rondel v. Worsley Lorp DENNING MR. QUEEN'S BENCH DIVISION [1967] perform their duties under peril of an action by every disap- pointed and angry client.” ** That was a direct authority. It was regarded as decisive. It was ever after accepted that counsel was not liable for negligence in the conduct of a suit. The courts of Scotland followed the same course as the courts of England. In 1845 in Purves v. Landell Lord Campbell said **: “ Against the barrister in England, and the advocate in Scotland, luckily, no action can be maintained.” In 1876 in Batchelor v. Pattison and Mackersy,* the Court of Session rejected a claim for negligence against an advocate. The Lord President, Lord Inglis, said '*: “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.” The courts in Ireland, too, followed the same course. In Mulligan v. M’Donagh Q.C. Pigot C.B. ruled’’: “This is an action brought against a barrister for neglect of duty. Such an action cannot be maintained.” In Robertson v. MacDonogh May C.J. said it was admitted ** that “counsel could not maintain an action against his client for remuneration for his services as an advocate, nor on the other hand could a client sue his counsel for the non-perform- ance of his duties as advocate, or for negligence in the performance of such duties.” Those authorities settled the law in these islands for 100 years. The rule itself was an anomaly. No other professional man was exempt from liability. A medical man was liable for negligence. So was a solicitor. Only a barrister was exempt. In addition, the reason given for the rule was bad. Both judges and text-writers said it was because he could not sue for his fees: see In re Le Brasseur & Oakley,” by Lindley L.J. and Halsbury’s Laws of England, 3rd ed., Vol. IIL (1953), p. 46, para. 66. Yet in other professions it had been held ever since 1789 that, if a professional man undertook a task involving his skill, without any fee at all, he was liable if he performed it negligently: sce Shiells v. Black- burne,*® by Lord Loughborough. Although the rule was an anomaly, and the reason for it was bad, nevertheless it was regarded as so well settled that it could 13 5H, & N. 890, 921. 27 (1860) 2 L-T.NS, 136, 137. a if Fin, 91, 103. 38 (1880) 6 L.R.Ir. 433, 436. 18 (1876) 3. R. 39 [1896] 2 Ch. 487, 494, C.A. 10 Ibid. 918. 20 (1789) 1 Hy.BL 158, 162,