•

AN ANALYSIS OF THE LAW ON PROFESSIONAL NEGLIGENCE IN THE LEGAL

PROFESSION (ACASE FOR UGANDA)

BY

MUGABIJOHN

LLB/31886/102/DU

A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL

FULFILMENT TO THE REQUIREMENTS FOR THE AWARD OF THE

BACHELORS DEGREE OF LAWS OF KAMPALA

INTERNATIONAL UNIVERSITY

0

MAY 2014

DECLARATION

I the undersigned do hereby declare that this research work is a result of my on

independent effort and that save for the acknowledgments thereof given to respective

Authors and Authorities herein cited, the work has never been examined in any

University.

Declared by me:

MUGABI JOHN DECLARANT

.. ~ .. Dated At Kampala thi~ ... day of ... ~~2014

APPROVAL

I the undersigned do hereby approve this research Paper, having supervised the student and do recommend it for acceptance by the School of Law Kampala International Univer~.

Approved this .. ~ ...... day of.. .... ~./. ...... 2014

MR.MUUKO JULIUS @.,:::9~3 SUPERVISOR

ii

DEDICATION

I dedicate this work to you my beloved wife Garret Hope Mugabi

iii

ACKNOWLEDGEMENT

The almighty God who has enabled me reach this far and allowed me to live, and accomplish my tasks here on earth.

I would like to extend my gratitude to my learned supervisor Mr. Muliko Julius for his generosity in sharing the knowledge and kindly agreeing to be my supervisor and his professional guidance extended to me during the time of preparing this work.

To My beloved mother Ms Jenifer Biryeri for fighting hard to see that your children become value adding persons to the development of Uganda. The Late Mr. Kakaire should have lived to see this success unfortunately circumstance could not allow him, His contribution while here on earth till 1993 is well accredited.

To my wife Garret Hopes Mugabi for standing by my side even when I spent sleepless nights working on this research and for the entire four years I spent in Law school. You tolerated my mood with well-disguised resignation; you understood my predicament.

My Gratitude to the family of Mr & Mrs Scott Volz, all the support you have rendered to me in the journey to Success.

Iam indebted and owe gratitude to Pr.& Mrs Steven Mayanja Ddamulila, Pr.& Mrs Ronald Devore, Pr Mrs Brian Bandelman, Pr. & Mrs David Easterly, Pr & Mrs Waiswa Robert.

I am indebted to Dr & Mrs Duane Carter, Thank you for being my good friends and I owe a particular debt of gratitude.

My friends Dr. Brad & Anya Schmitz.

I wish to extend and record my often unspoken debt of gratitude to my mother in Christ Ms Mary Braden; your moral and financial assistance can never go unmentioned in my Journey to Success.

I am indebted to the family of Mr & Mrs Merritt Hunt, I cannot forget your loving hearts deserve a bunch of gratitude.

To my friend and mentor Mr. Tweyanze Lawrence who encouraged me to pursue the Law career having identified the abilities in me.

To my brother Menya Rogers, to my brother Kakaire Daniel, to my Brother Tusubira Simon, to my sister Kwagala Sharon.

iv

UST OF STATUTES

The Advocates Act Cap 266

The Advocates Amendment Act of 2002

The Commissioners for oaths Advocates Act of 1950

The Judicature Act

The Notary Publics Act of 1950

v

USTOFCASES

AI-Kandari v J.R. Brown & Co. (1988) QB 665

Arthur J.S Hall and Co. v Simons (2000) 3 AER 673

Bolam v Friern Hospital (1957) 1 WLR 583

Bolitho v City and Hackney Health Authority (1997) 4 AER 771

Caparo Industries pic. V Dickman (1990) 2 AC 605

Carr-Glynn v Frearsons [1997] 2 AER 614

Clarke v Bruce Lance & Co. (1988) 1 WLR 881

Darker and others v Chief Constable of West Midlands Police (2000) 3 WLR 747

Donoghue v Stevenson [1932] AC 562

Edward Wong Finance Co. Ltd. v Johnson Stokes & Master (1984) 1 AC 296

Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335

Evans v London Hospital Medical College (1981) 1 WLR 184

Gran Gelato Ltd. v Richcliff (Group) Ltd. (1992) Ch 560

Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145

Hucks v Cole reported in (1993) 4 Med. L.R. 393

Hunter v Chief Constable of the West Midlands Police (1982) AC 529

James McNaughton Papers Group Ltd. v Hicks Anderson & Co. (1991) 1 AER 134

Ridehalgh v Horsefield (1994) Ch 205

Rondel v Worsley (1969) 1 AC 191 at 227

Sa if Ali v Sydney Smith Mitchell & Co. (1980) AC 198

Stanton v Callaghan (1999) 2 WLR 745

vi

Thake v Maurice [1984] 2 All ER 513

Watson v M'Ewan (1905) AC 480

White v Jones [1995] 1 AER 691

Edgeworth Construction v Lea and Walji [1993] 66 B.L.R.56 (Canadian Supreme Court)

vii

liST OF ACRONYMS

In this report, unless otherwise clearly expressed by the researcher:­

JLOS- refers to the Justice Law and order sector.

ULS-refers to the Uganda Law society.

JSC- refers to the Judicial service Commission.

AC- refers to Appeal Cases

AER-refers to All England Reports

WLR-refers to Weekly Law Reports.

QB-refers to Queens Bench

viii

TABLE OF CONTENTS DECLARATION ......................................................................................................................... i

APPROVAL ............................................................................................................................... ii

DEDICATION .......................................................................................................................... iii

ACKNOWLEDGEMENT .......................................................................................................... iv

LIST OF STATUTES ................................................................................................................ v

LIST OF CASES ...................................................................................................................... vi

LIST OF ACRONYMS ........................................................................................................... viii

TABLE OF CONTENTS .......................................................................................................... ix

ABSTRACT ............................................................................................................................. xii

CHAPTER ONE: ........................................................................................................... 1

GENERAL INTRODUCTION ...................................................................................... 1

1.0. Introduction .................................................................................................................... 1

1.1. The meaning of a profession .................................................................................... 1

1.2. Historical Background ................................................................................................... 1

1.3. The Tort of Negligence ................................................................................................. 2

1.4. Professional Negligence in general ............................................................................. 3

1.4.1. The relationship between contract and tort ........................................................... s

1.4.2. Legal Negiligence ....................................................................................................... 9

1.4.3. Expert Witnesses ...................................................................................................... 13

1.4.4. Statement of the problem ....................................................................................... 15

1.4.5. Objective of the study .............................................................................................. 16

1.4.6. Research questions ...................................... : ........................................................... 16

1.4. 7. Conceptual Flame work ........................................................................................... 17

1.4.8. Significance of the study ......................................................................................... 17

1.4.9. Scope of the study ................................................................................................... 18

1.4.10.Chapterisation .......................................................................................................... 18

ix

CHAPTER TWO: ........................................................................................................ 19

LITRATURE REVIEW ............................................................................................... 19

2.1. Introduction .................................................................................................................. 19

2.2. The Acts of Parliament. ............................................................................................... 19

2.2.1 The Advocates Act ..................................................................................................... 19

2.3. The Regulations ........................................................................................................... 21

2.3.1 The Advocates (Professional Conduct) Regulations ............................................. 21

2.4. Text Books .................................................................................................................... 22

2.4.1 Black's Law Dictionary ............................................................................................... 22

2.4.2 Halsbury Laws ............................................................................................................ 23

2.4.3 Winfield and Jolowiz .................................................................................................. 23

2.4.4 Salmond ...................................................................................................................... 24

2.5. Published Legal Journals ............................................................................................. 24

2.5.1 Alison Murray .............................................................................................................. 24

2.5.2 T.G.Bastedo ................................................................................................................ 24

2.6.Published Legal Articles ................................................................................................ 25

2.6.1 John L. Powell Q.C.says; .......................................................................................... 25

2.6.2 Rose E.J, Alfred.C. ..................................................................................................... 25

2.7. The Common Law Doctrines ...................................................................................... 26

2.8. Case Law ....................................................................................................................... 27

2.9. Institutional Frame Work ............................................................................................ 30

2.9.1 The Law Council ......................................................................................................... 30

2.9.2 Uganda Law Society ( ULS) ...................................................................................... 32

2.9.3 Justice Law and Order Sector JLOS ........................................................................ 32

2.10. Conclusion ................................................................................................................... 33

X

CHAPTER THREE: .................................................................................................... 35

METHODOLOGY ....................................................................................................... 35

3.1. Introduction ................................................................................................................. .35

3.1.1 Systematic investigation ........................................................................................... 35

3.1.4. Analytical Investigation ............................................................................................ 36

3.1.5.Qualitative Method ..................................................................................................... 36

3.1.6. Review of the identified research Material ........................................................... 37

3.1.7. Conclusion .................................................................................................................. 37

CHAPTER FOUR: ...................................................................................................... 38

FINDINGS . ................................................................................................................ 38

4.1 Introduction ................................................................................................................... 38

4.2. Applicability of Common Law Doctrines in Uganda ................................................ 38

4.2.1. Challenges in Litigation ............................................................................................ 39

4.2.2. Remedies Available to injured Persons arising out Negligence of Legal

Practitioners .......................................................................................................................... 40

4.2.3. Difficulties in enforcement and Pursuit of remedies .......................................... .41

4.3. Conclusion ..................................................................................................................... 43

CHAPTER FIVE: ........................................................................................................ 45

RECOMMENDATIONS AND CONCLUSION .......................................................... 45

5.1 Introduction .................................................................................................................. .45

5.2. General Recommendations ......................................................................................... 45

5.3. CONCLUSION ................................................................................................................ 47

REFERENCES ......................................................................................................................... 50

ARTICLES .......................................... , ................................................................................... 52

xi

ABSTRACT

The study analyzed the Law on professional negligence in the legal profession in

Uganda and the challenges such laws face in the attempt to protect the public who are

the potential clients for Legal Practitioners from injury arising from professionally

negligence.

The research establishes the relationship between Legal professionals and their clients

pointing out that a Legal professional may be held liable for a tort of negligence if

he/she fails to exercise that due care skill and diligence expected from him/her in the

discharge of his/her duty to the client.

The study has also investigated how Government policies sought to enable the clients

of legal practitioners to obtain appropriate and optimum benefits from their resources

and how they seek to achieve the goals of satisfactory production and performance

standards, adequate performance methods, informative approaches and the effective

protection against the malpractices and actions which could adversely affect the

interests of clients in the delivery of professional of services.

The study also investigated the safety of the general public against professional

negligence and how the government has encouraged the adoption of appropriate

measures including the systems, regulations, national or international standards,

voluntary standards and the mantainance to ensure that the services provided to the

general public is appropriate and safe for the intended or the foreseeable use.

The research approaches selected were used aiming at producing a comprehensive and

detailed description of the area under investigation.

The clients have for long suffered at the hands of the professionals with little available adequate remedies and the protection of the Law and many have ended up losing their lives, incurring exorbitant costs, as a result of the professional negligence. Hence the need for this study is to find out how far the law has gone to give redress to these problems and the challenges thereof faced by the provisions of the laws on the protection which could call for reform in the in the legal profession.

xii

CHAPTER ONE:

GENERAL INTRODUCTION

1.0. Introduction.

With the rapid ratios in development, we find ourselves living in the world where

professionals have surrounded us. Common Wealth vs. Brown1It is without

contention that professions are characterized by the need of unusual learning, the

existence of confidential relations, the adherence to a standard of ethics higher than

that of the market place, and in profession like that of medicine is treated by intimate

and delicate personal ministration. Traditionally, the learned professions were theology,

Law, and medicine; but some other occupations have climbed, and still others may

climb to the professional plane.

1.1. The meaning of a profession. A profession2 is a vocation requiring advanced education and training. A professional

therefore is a person who belongs to the learned art in a characteristically methodical,

courteous and ethical manner. There are three traditional learned professions which are

Law, Medicine, and Ministry.The occupations which today are regarded as professions,

however, extend far beyond those regarded as such in 1838. They have increased as

human knowledge and skill and consequent specialisation have increased. Inevitably

the word "professional" has become less distinct in its connotation and unsatisfactory as

a classification of occupations.

1.2. Historical Background. 800 Years Ago, Early days of common law. The state had little concern regarding

individuals and their interactions. In the 1300s The monarchy began to take an interest

in individual interactions. Trespass began the law of torts. However, a party wanting to

bring an action for trespass had to follow strict forms- their trespass must fit a writ.

1400s In response to the restricfulness of the writ system, "actions on the case"

1 20 N.E.2"d 478,481 (Mass 1939) Cited in the Blacks Law Dictionary 8th Ed at 1246 2

Ibid Page 1246

1

developed. The appealed to a sense of justice, and developed into nuisance, some

others, and negligence. Early negligence could only apply to certain cases:

Apothecaries, doctors/surgeons, and other people who served the public in a

professional capacity, and for whom there was a general accepted standard of

appropriate conduct. Late 1700s Negligence developed in a way that they could be

indirect, as opposed to the directness required by the trespass torts. Scott v. Sheppard

is an example of a trespass tort requiring directness.1800s Instead of focusing on

causation, courts began to see fault as most important for actions on the case. With

this shift in focus, it became less necessary to restrict actions to the pre-set categories.

There was an attempt to develop a more general theory/principled approach the

negligence.3

1.3. The Tort of Negligence. In Coal co Vs Macmillan4 Lord Wright opined that "That Negligence in strict sense

means more than needless or careless conduct, whether in omission or commission. It

properly connotes the complex concept of duty, breach and damage thereby suffered

by the person to whom the duty owed. The successful claimant in negligence action

must establish there propositions 1. That the defendant owed the claimant duty of care,

2.That there was breach of the duty of care, falling below standard, 3. That there was

damage suffered of the kind that the Law deems worthy of compensation. Donogue

and Stevenson, the General rule is that: the Duty of care only arises where the result

of that failure in the duty leads to damage either to a person or to the property.

The Tort of negligence is the means by which the Law attaches consequences to

unacceptable behavior. In Doughty V Turner Metal Manufacturing Co.5Lord

Diplock described it as the application of common sense and common morality to the

activities of the common man.

3Kenneth.W. Simons, Widener Law Journal Vol17 4 (1934) AC 1 at 25 5 (1964) 1 QB 518

2

It is said to be the omission to do something which a reasonable man guided upon

those considerations which ordinarily regulate the conduct of human affairs would do,

or doing something which a prudent and reasonable man would not do. Thus in Blyth

Vs Birmingham Water Works6 Where the plaintiff descending from a Train when

she had an auto accident but when she saw blood and suffered nervous shock. It was

reasonably foreseeable that some people would suffer damage as result of negligent

driving of the defendant but the plaintiff's injury was not foreseeable as she was far

from the accident and therefore there was no duty of care owed to her.

1.4. Professional Negligence in general

Professional Negligence7 is also referred to as malpractice where in this context is an

instance of negligence or incompetence on the part of a professional. To succeed in this

malpractice claim, the plaintiff must also prove the proximate cause and damages. It

will usually involve the failure to render professional services with the skill, prudence,

and diligence that an ordinary and reasonable professional in that particular field would

use under similar circumstances. Professionals owe duty of care in their work which

result in their reports because they engage in a calling which requires special

knowledge and that duty is owed to persons directly affected by their work; Their

employers, or client and to any third person to whom they know their employer is going

to show their work.

Professional negligence is a breach of the duty of care between professionals and their

clients. The duty of care is a common law arrangement where the client expects a level

of professionalism and standards commonly held by those in the profession. The most

common term for medical professional negligence is medical malpractice. For this

instance, the patient expects the doctor and his subordinates to adhere to standards

that would prevent undue harm and distress to patients under his or her care.

Negligence on the part of the doctor while performing his duties as a professional is

6 (1856) 11 Exch 781 7 Ibid at page 978

3

malpractice, which breaches the duty of care that the patient has put in the doctor and

will involve legal penalties.B-rhe duty of care is limited to persons by whom and whom it

is owed and the transactions to which it applies.

There are various forms of professional negligence; lawyer may engage in legal

malpractice if he not only deploys a questionable legal strategy but also makes critical

errors that no "reasonable attorney" would make. In a case such as this, an expert

witness may be necessary to prove that the lawyer was negligent and breached his

duty of care with his client. Similarly, any instance where a client relies on a

professional to fulfill his or her duty of care can be a form of professional negligence if

the professional commits an egregious breach of conduct. By this definition, a

professional that dispenses poor investing advice while breaching the common duty of

care placed in financial advisors, then the client is entitled to damages. If a mental

health professional behaves unethically and violates common practice, than he too has

engaged in malpractice. Lastly, builders and architects maintain a duty of care with

owners and tenants to ensure that the building they erect will adhere to government

regulations and common practices for the construction of buildings9

However/0the focus of the duty is on the standard of performance and not result.

Nevertheless, it also impacts on the desired result in that it allows for the possibility that

the result may not be achieved. Failure to achieve the result may be consistent with

the exercise of reasonable care and skill. It is the latter feature of the duty which

explains its early selection as the standard of performance required of doctors and

advocates.

Thus, in Lanphier v Phipos11Tindal C.J ''Every person who enters into a learned

profession undertakes to bring to the exercise of it a reasonable degree of care and

8 Law.com http://negiligence.laws.com/professional-negiligence 9http://negligence.laws.com/professional-negligence#sthash.D51J2WYy.dpuf

10John .L. Powell QC Professional Negligence, The Changing Coastline of Liability. 11(1838) 8 C. & P. 475

4

skill. He does not undertake, if he is an attorney, that at all events you shall gain your

case, nor does a surgeon undertake that he will perform a cure; nor does he undertake

to use the highest possible degree of care. In the case of an attorney, it reflected the

need to take account of the cooperation of the client, the available evidence, the

credibility and unpredictability of witnesses, the resources deployed by the parties and

other factors beyond the attorney's control. Likewise in the case of other professionals

the selection of the duty is explicable in terms of an assessment of features specific to

their occupation.

In the English law of tort, professional negligence is a subset of the general rules on

negligence to cover the situation in which the defendant has represented him or herself

as having more than average skills and abilities. The usual rules rely on establishing

that a duty of care is owed by the defendant to the claimant, and that the defendant is

in breach of that duty. The standard test of breach is whether the defendant has

matched the abilities of a reasonable person. But, by virtue of the services they offer

and supply, professional people hold themselves .out as having more than average

abilities. This specialized set of rules determines the standards against which to

measure the legal quality of the services actually delivered by those who claim to be

among the best in their fields of expertise.

1.4.1. The relationship between contract and tort

In principle, the tortious liability runs in parallel to liability in contract. Subject to the

rules of privity of contract, one who has entered into a contract can sue or be sued on

the contract which will set out the terms of the service to be provided by the

professional person, and if there is no express term to this effect, there will be an

implied term that the service will be performed with reasonable care and skill, The

standard of care required to satisfy this contractual obligation is the same as in

negligence, but the circumstances in which each liability may arise differ in that

contracts are voluntarily created between the parties, while the duty of care is imposed

by operation of law. However, suppose that a solicitor contracts with a medical expert

5

to prepare a report for the purposes of personal injury litigation. The beneficiary of this

work will be the client but there is no direct contractual relationship between the expert

and the client. It may therefore be argued that since the parties have decided to

arrange their relationships to avoid direct contractual obligations, the client should not

be permitted to sue in tort, bypassing the privity rule and any exclusion clauses in the

contract.

In Henderson v Merrett Syndicates £t(Pthe potential effectiveness of this

argument was acknowledged in a case where there was a formalized structure of agent

and sub-agent, but the general scope of this potential limitation remains unclear.

However, it is clear that if there is concurrent liability in contract and tort, the quantum

of damages is limited to the actual loss suffered and does not increase because there

are two causes of action.

In Thake v Mauricel3a railway guard and his wife had five children living in a three­

bedroomed council house and were unwilling to have further children. Thake consulted

the surgeon who made it clear that a vasectomy was final and that Thake after the

operation would become permanently sterile. Although the vasectomy was properly

performed, the effect of this operation was naturally reversed and, not unexpectedly,

Mrs. Thake conceived and a daughter was born. It was held that, applying the objective

standard, the surgeon had contracted not merely to perform a vasectomy but had

contracted to make Mr. Thake irreversibly sterile. The judge relied on the consent forms

which stated that the vasectomy would be final. The claim was brought in contract and

in tort. Peter Pain J. found that there was no reason why public policy prevented the

recovery of expenses arising from the birth of a healthy child. He awarded damages in

respect of the expenses of the birth and the mother's loss of wages but refused

damages for the pain and distress of labour holding that these were offset by the joy

occasioned by the birth. He did, however, award damages in an agreed sum for the

"[1995]2 AC 145 13[1984]2 AllER 513

6

child's upkeep to its seventeenth birthday. The Court of Appeal held that damages

should be awarded for pain and suffering "per the majority" in tort rather than contract.

The joy of having the child could be set off against the time, trouble and care in the

upbringing of the child but not against prenatal pain and distress. For the latter,

damages should be awarded. The case is also interesting because there was an

alternative interpretation of the consent form. After sterilization, some couples want to

change their minds because their children have died or because they are seeing better

days. Instead of the surgeon giving a guarantee of irreversible sterility which depended

on the way in which human tissue healed, the warning of finality could be aimed at

telling both husband and wife that they could not change their mind later and complain

if the spouse had become permanently sterile.

Even though the general objective standard of care cannot come down, it can be raised

where the individual defendant has expressly or impliedly represented skills and abilities

in excess of the ordinary person. It is an unfortunate fact of life that some professionals

prove to be negligent because even those with the most experience can make a

mistake. The consequences to their clients can be disastrous. Thus, professionals

providing services in a wide range of situations, from surveyors and estate agents to

doctors, solicitors, accountants, financial services providers, Information Technology

professionals, patent agents, etc., will be judged by the standards of those claiming to

have that same set of skills and abilities. This is the basis of the Bolam Test for medical

negligence derived from Bolam v Friern Hospitaf4. This test is not significantly

different from the test used in any other professional negligence litigation, but it causes

greater difficulty for the courts than would a claim against, say, a lawyer or an

accountant, because of the technical issues involved.

14(1957) I WLR 583

7

In addition, Hedley Byrne & Co Ltd v Heller & Partners Lttf5created the rule of

"reasonable reliance" by the claimant on the skills of the defendant.

"Where a person is so placed that others could reasonably rely upon his

judgment or his skill or upon his ability to make careful inquiry, and a person

takes it upon himself to give information or advice to, or allows his information

or advice to be passed on to, another person who, as he knows or should know,

will place reliance upon it, then a duty of care will arise."

Cases of professional liability blur the distinction between acts and statements, an

example, a medical specialist prepares a report for personal injury litigation, which can

be characterized as a statement, but it must be based on the prior acts of carrying out

a review of the medical records and performing a physical examination of the client.

Actions nominally based on Hedley Byrne by definition include negligent acts or

omissions, even though the ratio decidendi of Hedley Byrne was cast in terms of

liability for statements. In Caparo Industries pic. V Dickma!T6the criteria for a duty

of care in giving advice were stated in more restricted terms:

"What can be deduced from the Hedley Byrne case, therefore, is that the

necessary relationship between the maker of a statement or giver of advice (the

adviser) and the recipient who acts in reliance on it (the advisee) may typically

be held to exist where (1) the advice is required for a purpose, whether

particularly specified or generally described, which is made known, either

actually or inferentially, to the adviser at the time when the advice is given, (2)

the adviser knows, either actually or inferentially, that his advice will be

communicated to the advisee, either specifically or as a member of an

ascertainable class, in order that it should be used by the advisee for that

purpose, (3) it is known, either actually or inferentially, that the advice so

"(1964) AC 465 "(1990) 2 AC 605

8

communicated is likely to be acted on by the advisee for that purpose without

independent inquiry and ( 4) it is so acted on by the advisee to his detriment."

Following Caparo, the Court of Appeal in James McNaughton Papers Group Ltd. v

Hicks Anderson & CoP adopted a more restricted approach, focusing in the adviser's

actual and constructive knowledge of the purpose for which the statement was made.

Thus, the duty was to be limited to transactions or types of transactions where the

adviser knew or ought to have known that the advisee would rely on the statement in

connection with that transaction without obtaining independent advice. It also had to be

shown that the advisee did in fact reasonably rely on the statement without using his

own judgment or obtaining independent advice.

In Henderson v Merrett Syndicates Ltd. the Lords reasserted the underlying

principle that liability under Hedley Byrne was a voluntary assumption of responsibility

for performing the given task by a person rendering professional or quasi-professional

services irrespective of whether there was a contractual relationship between the

pages.

1.4.2. Legal Negligence.

As to solicitors, Ross v. Caunter$-8, holds that lawyers can owe a duty of care both to

their clients and to third parties who suffer loss or damage. In that case, the solicitors

failed to prevent a beneficiary from attesting the will. They admitted negligence but

denied that they were liable to the claimant, contending (i) that a solicitor was liable

only to his client and then only in contract and not in tort and could not, therefore, be

liable in tort to a third party, (ii) that for reasons of policy, a solicitor ought not to be

liable in negligence to anyone except his client, and (iii) that in any event, the Plaintiff

had no cause of action in negligence because the damage suffered was purely financial.

17(1991) I AER 134 "[1979]3 AER 580

9

Applying the principles in Hedley Byrne & Co Ltd v Heller & Partners Ltd and

Donoghue v Stevensorr9, a solicitor who is instructed by a client to carry out a

transaction that will confer a benefit on a third party owes a duty of care towards the

third party in carrying out that transaction, in that the third party is a person within his

direct contemplation as someone who is likely to be so closely and directly affected by

his acts or omissions that he can reasonably foresee that the third party is likely to be

injured by those acts or omissions. This was confirmed in White v Jone?0 which

applied Caparo Industries pic v Dickmar?-1 holding that there is a close and direct

relationship characterized by the law as proximity or neighborhood; and the situation is

one where it is fair, just and reasonable that the law should impose the duty of the

given scope upon the one party for the benefit of the other. But in Carr-Glynn v

Frearson?2 the solicitor admitted uncertainty as to whether the will as drawn would

be effective. The testatrix undertook to seek out the information needed to clarify the

issue. She died more than three years later without verifying the will. White v Jones

was distinguished because the testatrix had assumed the duty of care, but the court

was critical of the failure of the solicitors to send a letter of reminder. The case law also

indicates the necessity for firms of solicitors to keep detailed attendance notes.

Gran Gelato Ltd. v Richc/iff (Group) LtdP involved a solicitor's replies to

preliminary enquiries in a conveyance transaction. It was therefore foreseeable that

others would rely on the answers given but the court held that there was no duty of

care. A solicitor owes a professional duty of care to the client24 and no-one else. He or

she is subject to professional rules and standards, and owes duties to the court as one

of its officers. Thus, in general, when acting for the seller of land a solicitor does not

"[1932] AC 562 "[1995]1 AER 691 21 [1990]1 AER 568 "[1997] 2 AER 614 "(1992) Ch 560 ""client" defined in section 1 of the Advocates Act includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, an advocate and any person who is or may be liable to pay to an advocate any costs.

10

owe a duty to the buyer. Similarly, AI-Kandari v J.R. Brown & Ctf5 held that a

solicitor acting for a party in adversarial litigation does not owe a duty of care to that

party's opponent This was a family case involving contested custody, where the

husband had previously abducted the two children of the parties. Solicitors undertook to

keep the husband's passport (which included the children's names) under their control.

Bingham U. said at 675:

"In the ordinary course of adversarial litigation a solicitor does not owe a duty of

care to his client's adversary. The theory underlying such litigation is that justice

is best done if each party, separately and independently advised, attempts within

the limits of the law and propriety and good practice to achieve the best result

for himself that he reasonably can without regard to the interests of the other

party. The duty of the solicitor, within the same limits, is to assist his client in

that endeavor, although the wise solicitor may often advise that the best result

will involve an element of compromise or give and take or horse trading.

Ordinarily, however, in contested civil litigation a solicitor's proper concern is to

do what is best for his client without regard to the interests of his opponent."

Further, and perhaps most strikingly, it has been held that a solicitor advising a client

about a proposed dealing with his property in his lifetime owes no duty of care to a

prospective beneficiary under the client's then will who may be prejudicially affected. In

Clarke v Bruce Lance & Co.26, it was recognized that solicitors may sometimes give

advice which directly prejudices the interests of others who have a relationship with the

client But, so long as this advice is consistent with the duty owed to the client, there

will be no liability to that third party. Exceptionally, solicitors have been held to have

assumed a responsibility towards the claimant, i.e. in situations analogous to a holding

a fund on behalf of both sides of a dispute pending its resolution.

"(1988) QB 665 "(1988) 1 WLR 881

11

In Hedley Byrne & Co Ltd v Heller & Partners ltd the rule was established that

irrespective of contract, if someone who possesses a special skill undertakes to apply

that skill for the assistance of another person who relies upon that skill, a duty of care

will arise. The fact that the barrister did not enter into a contract with his solicitor or

client ceased to be a ground of justification for the immunity. Nevertheless, in a

unanimous decision, Lord Reid said in Ronde/ v Worsley7that the ancient immunity

should be continued on considerations of ''public policy [which are] not immutable. 28 In

Saif Ali v Sydney Smith Mitchell & Crr9 the scope of the immunity was considered.

Lord Wilberforce said at 213 that " ... barristers . .. have a special status, just as a trial

has a special character: some immunity is necessary in the public interest, even if, in

some rare cases, an individual may suffer loss." In England, the court and legal services

Act of 199030introduced the power to make wasted costs orders against legal

practitioners, Ridehalgh v Horsefieltr1 ruled that orders could be made against

barristers personally.

As to criminal trials, prosecuting counsel owes no duty of care to a defendant:

Elguzouli-Daf v Commissioner of Police of the Metropolis'12,If a defendant is

convicted after a full and fair trial, the remedy is to appeal. An attempt to challenge the

convictions by suing the defence advocate would be an abuse of process: Hunter v

Chief Constable of the West Midlands Po!icti'3,If any challenge is to be made

following an unsuccessful appeal, the only legitimate avenue would be the Criminal

Cases Review Commission even though the body is under-resourced. But the question

"(1969) 1 AC 191 at 227 "Roxburgh 1968 "(1980) AC 198 30 Laws of England 31(1994) Ch 205 32(1995) QB 335 33(1982) AC 529

12

remained as to whether a civil action might be maintained if the appeal was

successful34•

In Arthur J.S Hall and Co. v Simon$'5, the Lords re-evaluated the public policy

issues. The critical factor was the duty of a barrister to the court under ss27(2A) and

28(2A) Courts and Legal Services Act 1990 (inserteq by s42 Access to Justice Act 1999).

The question was whether the immunity is needed to ensure that barristers will respect

their duty to the court. In 1967, the answer was that assertions of negligence would

tend to erode this duty and accorded a special status to barristers. Nowadays a

comparison with other professionals demonstrated that barristers' immunity against

being sued in negligence was anomalous. Allowing civil action was unlikely to produce a

flood of claims and, even if some claims did emerge, a claimant alleging that poor

advocacy resulted in an unfavorable outcome would face the very great difficulty of

showing that a better standard of advocacy would have resulted in a more favorable

outcome. Unmeritorious and vexatious claims against barristers are simply struck out.

Thus, it was no longer in the public interest that the immunity in favour of barristers

should remain in either civil or criminal cases. This did not imply that Ronde/ v

Worsley was wrongly decided. But in today's world, that decision no longer correctly

reflected public policy. The basis of the immunity of barristers has gone. And exactly

the same reasoning is applied to solicitor advocates.

1.4.3. Expert Witnesses.

In cases of Expert Witnesses Since Watson v M'Ewa!?6, English law has allowed a

public policy immunity to any witness, including those who give evidence that is "false

and injurious" or merely negligent. In Evans v London Hospital Medical Col/egt?7,

Drake J. said that, in criminal proceedings, the immunity covereci "the statement

... made for the purpose of a possible action or prosecution and at a time when a

34 Cane 1996 35(2000) 3 AER 673 36(1905) AC 480 37(1981) 1 WLR 184

13

possible action or prosecution is being considered " He also thought the immunity

extended to, ': .. acts of witnesses in collecting or considering material on which he may

be called to give evidence. 'Tn Stanton v Callaghatr8 Chadwick U. Said,

"It seems to me that the following propositions are supported by authority

binding on this court: (1) an expert witness who gives evidence at trial is

immune from suit in respect of anything which he says in court and that

immunity will extend to the contents of the report which he adopts as, or

incorporates in, his evidence; (2) where an expert witness gives evidence at a

trial the immunity which he would enjoy in respect of that evidence is not to be

circumnavigated by a suit based on the report itself and (3) the immunity does

not extend to protect an expert who has been retained to advise as to the merits

of a party's claim in litigation from a suit by the party by whom he has been

retained in respect of that advice, notwithstanding that it was in contemplation

at the time when the advice was given that the expert would be a witness at the

trial if that litigation were to proceed."

In Arthur JS Hall v Simons, Lord Hoffmann justified the policy in that without the

immunity, witnesses " ... would be more reluctant to assist the court". In Darker and

others v Chief Constable of West Midlands Policti'9, the claimant alleged that

police officers had conspired with an informant to forge and manipulate records of

evidence. Lord Clyde confirmed the immunity for the preparation of a report to be used

in court. He said:

"In drawing the line in any particular case it may be necessary to study precisely

what was being done and how closely it was linked with the proceedings in

court .... The reason for admitting to the benefit of the immunity things said or

done without the wall of the court is to prevent any collateral attack on the

witness and circumvent the immunity he or she may enjoy within the court."

"(1999) 2 WLR 745 "(2000) 3 WLR 747

14

This confirms the general principle that a witness does not owe a duty of care to

anyone in respect of the evidence given to the court. The only duty is to tell the truth.

In Part 35.3 Civil Procedure Rules, the expert's duty is to help the court and this duty

"overrides" any obligation there might be to the client or the person who instructs

and/or pays him or her.

However, the position in respect of expert witnesses was altered by the decision of the

Supreme Court in 2011 in Jones v Kaney, which overruled Stanton v Callaghan. As

before, an expert will be liable to his client for advice which is tendered to and relied

upon by the client under normal principles. However, as a result of the decision, an

expert who provides a report which is adduced in evidence before a court no longer

enjoys immunity from suit for claims for negligence or breach of contract (although

immunity in defamation remains).

1.4.4. Statement of the problem The study showed how the developing needs of society which has demanded an

increase in professionals and the likely negligence from the said professionals that may

affect clients. Uganda's Laws regulating particular professions which have been

investigated lack better effective provisions that would ensure compliance and also

relies mostly on penal sanctions to enforce compliance and these very low. The level of

exercising skill and calling by the professionals is still wanting as most of them have

taken advantage of the ignorance of their clients, the poverty ratios and the

technicalities in the seeking redress. The Advocates Act40 provides for the establishment

of the Law council, the Law council sits in Kampala and thus people in rural areas are

vulnerable to suffer from injuries caused by the negligence of their Lawyers because of

the lack of adequate means to reach justice and most of these persons are not

informed, The Allied

4°Cap 267 as Amended.

15

1.4.5. Objective of the study

Recognizing that consumers of services often face the imbalances in the education

terms, economic, bargaining power ,social status and bearing in mind that consumers

should have the right of access to non-injurious services, the following shall be the

objective of the study.

1. To determine the Laws on the protection of consumers from negligent

professionals which could pose the risk to their health, economic and

mental predicament.

2. To curb the abusive practices by all the enterprise at the national

levels which adversely affect the consumers?

3. To encourage education and sensitization of consumers of services on

the available redress in cases where they are adversely affected by the

actions of professionals.

4. To encourage high levels of ethical conduct for those engaged in the

delivery of services on a professional basis.

5. To encourage the development of. independent consumer groups and

the development of the well-conditioned atmosphere which provide the

consumers the greatest choice?

1.4.6. Research questions 1. What is the status of the Law on Professional negligence in the Legal

profession?

2. What are the challenges on the reduction of professional negligence in the

Legal profession?

3. Is there institutional flame work in place to reduce on professional

negligence in the legal profession?

4. What should be done to protect the consumers/clients from professional

negligence?

16

1.4.7. Conceptual Flame work The implementation, and monitoring of policies on professional negligence is very

important and considerable care should be taken to ensure that measures on

professional negligence are implemented, Better and unambiguous laws enacted for the

benefit of all classes of the population, particularly the people in the rural areas who

have suffered the predicament due to inadequate access to facilities and information.

All stake holders should obey the relevant laws and regulations of the countries in

which they practice their special callings. They should also conform to the appropriate

provisions of international standards for exercising their occupations to which the

relevant authorities of the country in question have conformed and ratified.

Education and sensitization of the general public who are the potential clients for the

respective professionals is very vital as most of the population in Uganda is not aware

of the existing laws, the respective authorities and the remedies available in case injury

arose from the negligence of the professional.

1.4.8. Significance of the study 1. The report will make the policy makers in particular the government

aware of the gaps in the law on professional negligence.

2. The study will also generate useful information on the rights and remedies

available to the consumers of services who are the potential clients of the

professionals in the particular fields and how important it is for them to be

a aware of the dangers in case the person they have hired to carry out

professional work for them did not exercise the skill of which a reasonable

other professional in that field would have acted.

3. The report will also promote the consumers' access to adequate

information to enable them make proper and well informed choices as

well as the promotion of their social and economic interest and also advise

the person they wish to hire appropriately.

17

1.4.9. Scope of the study The scope of the study in which the study was to identify the laws which are enacted to

protect clients, and ensure that the consumers are well protected and to establish that

the persons offering professional services owes a duty of care to the clients.

1.4.10.Chapterisation.

Chapter one discussed the general Introduction of the research topic, Statement of the

Problem, Objectives of the Study, and the Scope of the Study.

Chapter Two discussed the Literature review of research

Chapter Three discussed the methodology used by the researcher while analyzing the

Law of professional Negligence in the Legal profession in Uganda.

Chapter Four discussed the findings on Professional Negligence in the Legal profession.

The chapter looks at the challenges in litigation, the applicability of the common Law

Doctrines in Uganda, The Remedies Available to injured persons arising out of the

Lawyers Negligence, and the difficulties in the enforcement of the Law and in pursuit of

remedies.

In Chapter Five, the researcher discussed his own recommendations and drew a

conclusion to the issues raised. The researcher also makes some relevant

recommendations not based on bias.

18

CHAPTER TWO:

UTRATURE REVIEW

2.1. Introduction.

There is abundance of authorities available on this field, the researcher consulted

Textbooks, Articles, Journals, and also looked at the institutional flame work on how the

issue of Professional negligence in the Legal profession is being addressed.

2.2. The Acts of Parliament.

2.2.1 The Advocates Act41

This is an Act of Parliament to consolidate the law relating to advocates and to make

general provisions for purposes connected with the legal profession. The Act establishes

the Law Council42 The Act also provides for instances where an Advocate may be

refused a practicing certificate among which; is if the said 43Advocate is being

proceeded against for professional misconduct or for an offence under this Act.

Professional misconduct in this regard includes ·professional negligence. It is the

conduct which is unbefitting of a Lawyer to the detriment of their clients. In such cases,

the Advocate's practicing certificate will be cancelled with tin the meaning of the

Act.~here must however be a primafacie case established against the Advocate.

The Act extends it provisions to the Legal Assistants, and Clerks working with the

Advocates; thus professional negligence arising out of the acts done by the Clerk or a

legal assistant will be imputed on the Advocate since he owes duty of care to the Client.

Once the prima facie case is established,4s-rhe advocate will be admonished, the

advocate be suspended from practice for a specified period not exceeding two years,

the name of the advocate be struck off the roll, the advocate pay a fine not exceeding

ten thousand shillings, the advocate be ordered to pay compensation not exceeding

twenty thousand shillings to any person who has suffered loss as a result of his or her

41 Cap 267 Laws of Uganda

42 Section 2 of Advocates Act 43

Section 12(g) Advocates Act 44

Section 12 of the Advocates Act 45 Section 4 (a-e) of the Advocates Act

19

misconduct. Advocates46 are also prohibited from employing persons whose moral stand

in society has been adjudged to be improper and capable of causing harm or

contributing to potential loss to the likely clients of the Advocate. These provisions are

intended to protect the public from any loss, harm that may arise out of the negligence

of the Legal practitioner. Among others, the Law Council is responsible to exercise,

through the medium of the Disciplinary Committee; Disciplinary control over advocates

and their clerks47to exercise general supervision and control over the provision of legal

aid and advice to indigent persons48

The Act further provides for the circumstances under which a practicing certificate may

be refused49 Among others; If an advocate is a person adjudged to be of unsound mind

under the Mental Treatment Act50;is being proceeded against for professional

misconduct or for an offence under this Act; but-(i) the chief registrar shall only refuse

to issue or renew a practicing certificate, or in the case where a practicing certificate

has been issued or renewed (and notwithstanding section 20) the certificate may be

suspended by the Disciplinary Committee, if the Disciplinary Committee is of the view

that there is a prima facie case against the advocate and the alleged misconduct or

offence is one involving gross moral turpitude51

Advocates practicing certificate may be cancelled on reasonable grounds and his name

will be struck off the roll of advocates52 An advocate commits an offence if he/she

practiced without a valid practicing license53 and in such cases the client is most likely

to suffer loss. The question would suffice as to whether an advocate owes duty of care

to his client by ensuring that He or she is proper before Court? The answer would be in

the affirmative thought in many cases, the courts have accepted and up held the

46 Section 3S (1-3) of the Advocates Act 47 Section 3 (d) ibid 48 Section 3 (e) ibid 49 Section 12 50 Section 12 (b) 51

Section 12 g(i) 52 Section 14 53 Section 1S

20

principle under Article 126(2)e)54 That justice shall be administered without due regard

to technicalities and thus negligence of Counsel has been held not to be visited on the

client. The complaints to the Disciplinary Committee can be made by an Advocate

In Edward Wong Finance Co. Ltd. v Johnson Stokes & Master5Solicitors had

completed a mortgage transaction in "Hong Kong style" rather than in the English style.

The fact that this style was almost universally adopted in Hong Kong did not make it

reasonable or responsible because it did not guard against the risk of fraud. Thus, the

solicitors were liable for negligence because they should have taken precautions against

an obvious risk. A solicitor owes a professional duty of care to the client and no-one

else. He or she is subject to professional rules and standards, and owes duties to the

court as one of its officers.

The Act does not cast Liability on defending counsel in Criminal matters. Case Law has

spoken on this. In E/guzouli-Daf v Commissioner of Police of the Metropoli~6 If

a defendant is convicted after a full and fair trial, the remedy is to appeal. An attempt

to challenge the convictions by suing the defense advocate would be an abuse of

process.

2.3. The Regulations.

2.3.1 The Advocates (Professional Conduct) Regulations The researcher also consulted the Advocates (Professional Conduct) Regulations57 made

under the Advocates Act to analyses the provisions therein and how they are useful to

this paper. Under these rules, the Advocate who receives instructions must not act

unreasonable to delay the carrying out of the instructions received from his/her client

and must conduct business of clients with due diligence, including, in particular, the

answering correspondence dealing with the affairs of his or her clients. 5B-rhe wording is

coached in mandatory terms by the use of "Shall" and thus the rule is mandatory.

54 The 1995 Constitution of Uganda As amended 55(1984) 1 AC 296 "(1995) QB 335 57 Statutory Instrument 267-2 58 Section 2 of the Advocates Professional Conduct Regulations

21

Similarly, where the Advocate wishes to withdraw from a case, he must give notice to

the client, the opposite party, and the Court59.The rules also provide for the Advocates

Duty to appear in Court at all times and where he or she under normal circumstances is

unable to appear, the advocate must instruct his/her partner or professional assistant to

appear and hold brieF0•

Further under these rules, the Liability of the Advocate is cast on him/her personally61

and not any other person. An Advocate is personally responsible for the clients work

and must supervise any other Advocate and other professional staff employed in there

that may be put in position in carrying out the instructions. All acts that are prejudicial

to the client are prohibited including disclosing of clients information to third parties62•

An advocate owes duty of care to his client and the relationship between advocate and

client is fiduciary relationship and the advocate must act appropriately.63and must also

advise the client diligently64 and the said advise must be in the best interest of the

client. The rules cast the duty on the advocate·, not his clerk and not his Legal

assistants.

2.4. Text Books

2.4.1 Black's Law Dictionary The Black's Law Dictionary defines what a profession is; that is a vocation requiring

advanced education and training. A professional therefore is a person who belongs to

the learned art in a characteristically methodical, courteous and ethical manner.65 This

type of is also referred to as malpractice where in this context is an instance of

negligence or incompetence on the part of a professional.66 I do agree with the

treatment given to professional Negligence; it is the omission on the part of the

professional to exercise the skill and calling. Any professional owes duty to his/her client

59 Section 3 (2)a of the Advocate Professional Conduct Regulations. 60 Section 5 (1) and (2) of the Advocates Professional Conduct Regulations 61 Section 6 of the Advocates Professional Conduct Regulations 62 Section 7 of the Advocates Professional Conduct Regulations 63 Section 10 of the Advocates professional Regulations "section 12 of the Advocates Professional Conduct Regulations. 65 Black Law Dictionary at Page 66Biacks Law Dictionary at Page 978

22

to ensure that their clients are not imperiled. The source also was referred to for

meanings of certain words used in this research.

2.4.2 Halsbury Laws67

The researcher was also aided by the Halsbury Laws in this research on the issue to do

with statements of professional men. Where it is written that claims against a person

who makes a misrepresentation may lie in tort for deceit or for negligent misstatement.

A misrepresentation which induces the making of a contract may become a term of that

contract and give rise to a claim for breach of contract. Alternatively a

misrepresentation may be subject of collateral contract. The Liability imposed by statute

for certain non-fraudulent misrepresentation has been characterized as liability Sui

generis, sounding neither in contract nor in tort, but which affords an equivalent

measure of damages to that recoverable in tort for deceit.

2.4.3 Winfield and Jolowiz68

Also aided this research where the researcher related the opinion from the Learned

Authors to the tort of professional Negligence. Among others, the Authors opined, that;

a) Words may cause a person to act in reliance upon them and suffer loss

or damage as result. This is also referred to as Negligent Misstatement.

b) The defendant may knowingly or recklessly make a false statement to

the claimant with intent that it shall be acted upon by the claimant, who

does act upon it and thereby suffers damage. This is also deceit.

c) False statement may be made with "Malice" to some person other than

the claimant, as result of which the claimant suffers damage.

67 45 (2) Para 309 . 68Winfield,Jolowicz, on Tort, 18'h Edition, 2010 by W.V. H. Rogers, Sweet and Maxwell.

23

2.4.4.Salmond69

This source was useful to my research where the learned author enunciates that;

Doctors, Surgeons and Dentists owe to their patients a duty of care in tort as well as

contract. Much as the Learned Author first mentions professions outside the scope of

this research, The Author does expound on the topic where he enunciates, that

professional Man is expected to show a fair, reasonable and competent degree of skill.

2.5. Published Legal Journals

2.5.1 Alison Murray70

Where the writer states, that a successful claim against a barrister requires the usual

elements in negligence to be proven; That the Lawyer owed a duty of care, That the

Lawyer breached that duty of care through mistake or negligence, the causation and

the damages. He further opines that the most common mistake Lawyers make is

missing Limitation dates and thus that would amount to professional Negligence. But

the writer recognizes the difficulty in suing a Lawyer which he describes as a very

complicated venture than merely establishing the Legal error. The claimant thus must

not only prove the error but also that had it been not the error in question, the claimant

could have not lost the case.

2.5.2 T.G. Bastedo71

Says that the legal profession is ubiquitous, pervades most aspects of the social policy,

and through its very role is perhaps peculiarly vulnerable to public attack. Unlike the

medical profession, its greatest competitor for tangible recompense and prestige, the

actions of lawyers affect others in an economic sense. For all of these reasons the

adequacy of government of the profession is being questioned. The government of any

profession must have as its primary aim the protection of the public, and one

substantial aspect of this is the disciplining of incompetence. A second is ensuring that

the public will be recompensed for any unfortunate experiences in dealing with

"Salmond on the Law of Torts 16'" Edition, London, Sweet and Maxwell1973, page 232 70 Alison Murray, Vancouver BC, ISSUE 11S December 2007 71A Note on Lawyers' Malpractice: Legal Boundaries and Judicial Regulations." Osgoode Hall LawJourna/7.3 (1970) :311-321.http://digitalcommons.osgoode. yorku.ca/ohlj/vol7/iss3/4.

24

members of the profession. To a large extent, the standards of incompetence are set by

the courts, and it is these standards which will determine ultimately who will be

recompensed, and who may be subject to discipline.

2.6.Published Legal Articles

2.6.1 John L. Powell Q.C.72says; A "Professional" is an acquisitive concept, acquisitive of aspirations and expectations -

but also of liabilities. Claims for professional negligence are now common. Indeed they

will become more so. This will be a product of increasing demand for their services,

specialisation, higher standards and intolerance of bad performance by highly educated

societies. He further says, that; A professional person is under a duty to exercise

reasonable care and skill. The required standard of care and skill is that of the ordinary

skilled person of the same discipline. The Learned writer advances a criticism where in

his own opinion; he avers that the duty of care and skill has clothed the law relating to

professional negligence with an apparent coherence and exclusivity of analysis. Indeed,

it has nurtured a tort culture which has obtruded on the contractual analysis which may

otherwise have prevailed. Even the classification of relevant case law under the title

professional negligence immediately encourages association with the tort of negligence.

"Professional liability" is a more neutral and accurate title. The tort culture is not the

product of language alone. More significant factors are the centrality accorded to the

duty of care and skill and its attribution to both contract and tort.

2.6.2 Rose E.J, Alfred. C/3

In this Article, the Author opines that; the tort of negligence illustrate the purpose of

the law of torts in relation to Advocates; to adjust Advocates' losses and to afford

compensation for injuries sustained by a client as a result of the professional

misconduct. The Authors further Lament; That Neither the Advocates ordinance nor

East African case law defines what constitutes" professional misconduct." Any kind of

72 Professional Negligence, The Changing Coast Line of Liability. 7373 The Tort of negligence on Advocates in Tanzania, Po. Box 184 Muzumbe Tanzania,www.raha.com

25

enlighten on the matter is to be found in English cases. Even in England the phrase has

not rendered itself to an easy definition, as can be inferred from the following cases.

The researcher concurs partially with the authors in this Article.

2.7. The Common Law Doctrines Common Law doctrines are authoritative sources in Legal Research. The Common Law

Doctrine of Duty of care establishes thatA professional person is under a duty to

exercise reasonable care and skill. The required standard of care and skill is that of the

ordinary skilled person of the same discipline. This duty is in many cases referred to as

the Bolam principle after McNair J.'s eloquent expression of it in a direction to the jury

in a medical negligence case of that name74 The duty arises not only as an implied (if

not express) term of the contract between the professional man and his client. It may

also arise in tort. So a professional may owe a duty of care to his client running

concurrently with the like duty in contract. He may also owe a duty of care in tort to a

third party. Breach of the tortious duty gives rise to liability in the tort of negligence.

The duty is usually invoked in support of the proposition that a professional does not

impliedly agree to produce a particular result. He will be taken as having done so only

if he has expressly so agreed. Otherwise the client's bargain is rather the product of

the care which an equivalent professional could reasonably have been expected to

exercise in the same circumstances. The exercise of such care may be consistent with

failure to achieve the desired result. The paradigm is a doctor's failure to cure his

patient.

The latter point impacts on the measure of Joss consequent upon failure to exercise

care. The application of the restorative principle in contract entails that the claimant is

entitled to the benefit of his bargain, whereas its application in tort entails that he is

restored to the position which he would have occupied but for the tort. In professional

negligence cases the respective consequences of applying the contractual and tortious

measures coincide. This does not mean that tlie tortious measure is adopted in

74 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582

26

preference to the contractual measure. The position of having care exercised

represents both the contractual bargain and the position which the claimant would have

occupied but for the defendant's negligence.

The professional is required and owes duty of care to his/her Client to75:-

a) To be skilful and careful;

b) To advise his/her client on all matters regarding to his/her retainer so far as may

reasonably and necessary;

c) To protect the interest of the client;

d) To carry out all his instructions by proper means;

e) To consult his client on all questions of doubt which do not fall within the express

or implied discretion left to him;

f) To keep his client to such an extent as may be reasonably and necessary

according to the same criteria.

2.8. Case Law The Laws enacted by Parliament in Uganda are limited in relief and generary provisions

to do with professional Negligence; resort has to be made to decided authoritative

cases which have established precedent in this area. Most of the available cases are all

England cases but Uganda being a common Law country the authorities are persuasive

and could be used for both scholarly and litigation purposes. The issue is can the

injured the plaintiff get a remedy, is yes under which Law?, is the Law Adequate in such

cases, What impact has created. There abundance of authorities in this topic all of

which could be invoked. Henderson v Merrett Syndicates Ltd""rhe court

expounded on the relationship between Contract and the Tort in Professional

Negligence Claims and the quantum of damages that will be awarded by Court, Bolam

v Friern Hospitaf'7Establishes the basis for the claims and under which the standard

of care could be raised. The Bolam case is a precedent on medical negligence but the

75 The Verdict Claims against Barristers and Advocates, Article by Allison Murray, Vancouver BC, Issued 15, May

2007. 76[1995]2 AC 145 77 (1957) I WLR 583

27

principles established there in are applicable in the general on professional negligence.

Hedley Byrne & Co Ltd v Heller & Partners Lttf'8created the rule of "reasonable

reliance" by the claimant on the skills of the defendant. Court was of the view that;

"Where a person is so placed that others could reasonably rely upon his judgment or

his skill or upon his ability to make careful inquiry, and a person takes it upon himself to

give information or advice to, or allows his information or advice to be passed on to,

another person who, as he knows or should know, will place reliance upon it, then a

duty of care will arise."

Case Law has further extended and established precedent on the principle of negligent

statements made by the professional, in Caparo Industries pic. V

Dickmai?9established Liability on the part of the professional for negligent

misstatements. James McNaughton Papers Group Ltd. v Hicks Anderson &

ccfOWhere the adopted a more restricted approach, focusing in the adviser's actual and

constructive knowledge of the purpose for which the statement was made. Thus, the

duty was to be limited to transactions or types of transactions where the adviser knew

or ought to have known that the advisee would rely on the statement in connection

with that transaction without obtaining independent advice. In Henderson v Merrett

Syndicates Ltd Court established that it also has to be shown that the advisee did in

fact reasonably rely on the statement without using his own judgment or obtaining

independent advice.

Case Law establishes precedents on the liability for medical practitioners thus; In the

Bolam case81The Court must only compensate for the injuries caused by negligent

treatment, not for any underlying condition and that, the defendant had to have acted

in accordance with the practice accepted as proper by a "responsible body of medical

men. The Courts in later days following the Bolam opined that a standard of practice

recognized as proper by a competent reasonable body of opinion." To determine

whether a body of opinion is responsible, reasonable or respectable, the judge will need

76(1964) AC 465 "(1990) 2 AC 605 "(1991) 1 AER 134 61 Supra

28

to be satisfied that, in forming their views, the experts have directed their minds to the

question of comparative risks and benefits and have reached a defensible conclusion on

the matter thus; in Hucks v Coltf/2 Where a doctor failed to treat a patient who was

suffering from septic places on her skin with penicillin even though he knew there was

a risk of puerperal fever. Court Opined that ""When the evidence shows that a lacuna in

professional practice exists by which risks of grave danger are knowingly taken, then,

however small the risk, the court must anxiously examine that lacuna-particularly if the

risk can be easily and inexpensively avoided. If the court finds, on an analysis of the

reasons given for not taking those precautions that, in the light of current professional

knowledge, there is no proper basis for the lacuna, and that it is definitely not

reasonable that those risks should have been taken, its function is to state that fact and

where necessary to state that it constitutes negligence. In such a case the practice will

no doubt thereafter be altered to the benefit of patients.

Case Law has also established liability for legal practitioners. Ross v. Caunter$13 holds

that lawyers can owe a duty of care both to their clients and to third parties who suffer

loss or damage, a solicitor who is instructed by a client to carry out a transaction that

will confer a benefit on a third party owes a duty of care towards the third party in

carrying out that transaction, in that the third party is a person within his direct

contemplation as someone who is likely to be so closely and directly affected by his acts

or omissions that he can reasonably foresee that the third party is likely to be injured

by those acts or omissions, Gran Gelato Ltd. v Rich cliff (Group) Ltcl'4 The case law

also indicates the necessity for firms of solicitors to keep detailed attendance notes

.Ridehalgh v Horsefielcl'5 Court opined that orders could be made against barristers

personally and not the entire Law firm where the said practitioner is a partner.

"(1993) 4 Med. L.R. 393 "[1979] 3 AER 580 "(1992) Ch 560 "(1994) Ch 205

29

In Kirima Estates (U)ltd. v. Korde86. In this case the defendant, an advocate,

advised the appellant company to accept a mortgage which he valued at Shs. 120,000

in return for which the 13appellant company gave shs. 60,000. The mortgage, however,

failed to pay and on selling the mortgage the appeflant could only recover shs. 45,000.

They consequently filed an action against the defendant advocate urging that he as an

Advocate had been negligent in his duty in advising them as to the value of the

property. It was further argued; inter alia that the charge of negligence was vindicated

by his failure to engage a qualified surveyor or estate agent to assess the property and

to make local inquiries as to the value of similar properties in the area. The court held

that the property was not adequate security for Shs.60,000 at the time the loan was

given. Consequently in assessing the value of property at120,000, the defendant had

failed to exercise that due care skills, and diligence expected of him in the discharge of

his duty to the plaintiff company as his client. He had failed to make inquiries as to the

value of the property and also failed to engage the services of a surveyor or estate

agent thereby failing to have a proper valuation of the property made before advising

the client. Therefore, upon the evidence, the defendant was not only negligent in the

discharge of his duty but also committed a breach of that duty.

Similarly case Law has provided authorities as regards to the Liability of Architects,

Accountants, Surveyors, Engineers and Auditors in tort while carrying out their skills in

the respective professions. In Edgeworth Construction v Lea and Walji87 engineers

were held liable to contractors who relied on misstatements in tender documents.

2.9. Institutional Frame Work.

2.9.1 The Law Council This is established by the Advocates Act. The Act provides for the functions of the Law

counci188 The Functions89 of the Law Council are:-

"(1962) EA22 87 [1993] 66 B.L.R.56 (Canadian Supreme Court 88

Section 3 ibid 89 Section 3 (a-e)ofThe Advocates Act Cap 267

30

(a) To exercise general supervision and control over professional legal education in

Uganda;

(b) Without prejudice to the generality of paragraph (a), to approve courses of study

and to provide for the conduct of qualifying examinations for any of the purposes of this

Act;

(c) To advise and make recommendations to the Government on matters relating to the

profession of advocates;

(d) To exercise, through the medium of the Disciplinary Committee, disciplinary control

over advocates and their clerks;

(e) To exercise general supervision and control over the provision of legal aid and

advice to indigent persons; and

(f) To exercise any power or perform any duty authorized or required by this or any

other written law.

The Law Council currently is housed at Georgian House on George Street in Kampala.

The Disciplinary Committee which is established by the Advocates Act90 also is housed

at the same building on Level 8.AII Complaints against Advocates91 are directed to the

disciplinary Committee and could be made by the Law Council or any Person92The

Disciplinary Committee upon reaching it final decisions and finding an Advocate Guilty

of professional misconduct will order;-

a). That the advocate be admonished;

b). that the advocate be suspended from practice for a specified period not exceeding

two years;

c). That the name of the advocate be struck off the roll;

d). that the advocate pays a fine not exceeding ten thousand shillings;

e). that the advocate pay compensation not exceeding twenty thousand shillings to any

person who has suffered loss as a result of his or her misconduct. or combination of all

of the orders.

90 Section 18 of the Advocates Act Cap 267 91 Section 20 of the Advocates Act Cap 267 92 Section 20,3,(a-e) of the Advocates Act Cap 267

31

The committee may also make orders as to costs or witness expenses93May order for

attachment of the immovable and moveable property of the advocate by sale and

distress,94 Compensation and restoration of the property lost95 by the injured claimant

against the Advocate for professional misconduct. The Law Council is open to everyone

and the general Public is being sensitized to not withdraw or refrain from reporting

cases of professional Negligence on the Part of the Advocates they hire.

2.9.2 Uganda Law Society ( ULS) This is a society of Lawyers; It plays a vital role in the maintenance of professional

ethics in the legal profession. The society works along with other sectors in the area of

Law. It is therefore important to recognise the role of Uganda Law society on

professional negligence in the legal profession.

2.9.3 Justice Law and Order Sector JLOS96

This is sector wide approach wide approach which brings together 17 institutions whose

primary mandate is the administration of justice and maintenance of Law and order as

well as the promotion, protection and respect for Human Rights.

Its objectives are to promote a strong, harmonized and consistent flame work, policy

and regulatory framework conducive to JLOS operations national development, To

enhance access to JLOS services particularly for vulnerable persons, and To Promote

the observance of Human rights, and accountability. One of the salient priorities of

JLOS is to empower citizens.

The Justice and order sector is versioned to ensure that people in Uganda live in a Safe

and Just Society and to Improve the safety of the person, security of property,

observance of human rights and access to justice for accelerating growth, employment

and prosperity.

93 Section 20(5) of the Advocates Act Cap 267 94 Section 20(6) of the Advocates Act Cap 267 95 Section 20(8) of the Advocates Act Cap267 96

www.jlos.go.ug

32

Participation/ empowerment and ownership through mechanisms that enable all JLOS

institutions to access and control structures and processes that transform their outputs

into desirable sector outcomes

Growth and equity in service provision to rem.ove the gender/ age1 social and

geographical disparities in the distribution of benefits from JLOS SIP III investments;

Deepening and strengthening de-concentration in line with the overarching policy of

moving political and governance structures nearer to the people; Transparency in the

partnership; Accountability to stakeholders; and Excellence in implementation processes

and outputs.

Through the implementation processes/ the Justice Law and Order sector has ensured

that the Laws which are enacted by Parliament are implemented equitably. A law which

cannot be implemented is no Law. All professions in Uganda are regulated by an Act of

Parliament/ these respective Laws establish relevant bodies to regulate the professions

thereof1 but great difficulty would be encountered if the enforceability and

implementation mechanism is frustrated. The JLOS has thus bridged this gap.

Also with the sensitization awareness campaigns enables the poor and the un educated

to know and reach Justice. An ignorant farmer1 who grows his maize1 raises enough

funds and wishes to put up a responsible home would suffer serious predicament in

losses if the Engineer he contracted did not perform to the standard of the prudent

learned engineers thus resulting into losses.

2.10. Conclusion.

Even though the general objective standard of care cannot come down 1 it can be raised

where the individual defendant has expressly or impliedly represented skills and abilities

in excess of the ordinary person. It is an unfortunate fact of life that some professionals

prove to be negligent because even those with the most experience can make a

mistake. The consequences to their clients can be disastrous. Thus1 professionals

providing services in a wide range of situations/ from surveyors and estate agents to

33

doctors, solicitors, accountants, financial services providers, Information Technology

professionals, patent agents, etc., will be judged by the standards of those claiming to

have that same set of skills and abilities. There are technical issues involved however in

cases like for suite brought against A Lawyer. Allowing civil actions is likely to produce a

flood of claims and, even if some claims did emerge, a claimant alleging that poor

advocacy resulted in an unfavorable outcome would face the very great difficulty of

showing that a better standard of advocacy would have resulted in a more favorable

outcome. But looking at the of fore going Laws, Regulations, Textbooks, Journals,

Articles, and Institutional Bodies, Case Law and doctrines of equity, Professionals owe a

duty of care to their clients.In Lanphier v Phipo$'7 Tindal C.J Held that "Every person

who enters into a learned profession undertakes to bring to the exercise of it a

reasonable degree of care and skill. He does not undertake/ if he is an attorne~ that at

all events you shall gain your case/ nor does a surgeon undertake that he will perform a

cure; nor does he undertake to use the highest possible degree of care/~

97(1838) 8 C. & P. 475.)

34

CHAPTER THREE:

METHODOLOGY

3.1. Introduction The researcher adopted what is referred to as doctrinal research having identified it to

be one of that kind. A doctrinal research is said to be pure Legal research aimed at the

investigation of legal principles, rules, concepts or doctrines with the view to

contributing to legal knowledge. T he researcher will thus research in the Law or

otherwise researching with in the Legal Flame work of the Law with the hope of

generating, validating, expanding and adding knowledge to the law. Under doctrinal

legal research the research concentrates on in depth investigation and or examination

of the pillars of Law, by so doing, the researcher will thus be interested in the primary

sources of information or materials, Legislations ( statutes, statutory instruments) and

the leading Judicial decisions which are referred to as the precedents. A properly

equipped Law library will be of greater importance to the researcher. The researcher

organized th is study around legal provisions, principles, concepts or doctrines and

judicial statements relating and reflecting thereon, with the aim of studying the said

case Law and statutory law to find the law, consistency and certainty of the law, looking

into the purpose and policy of the law that exists, and aims to study the legal

institutions on professional negligence in the legal profession.

3.1.1 Systematic investigation A systematic effort was required to ascertain or find the law on the professional

negligence in the legal profession thus; the researcher was required not only to locate

and look into the relevant acts of parliament but also to locate the secondly legislative

instruments in the form of rules, regulations, orders, directions, notifications, by laws,

and judicial pronouncements. Under systematic legal research the system is set of

interrelated parts. one part links the other and all of the parts work together to make a

whole system which the topic under investigation.

35

3.1.4. Analytical Investigation Finding Law on particular subject involves intensive analysis of legal instruments and

judicial pronouncements. The researcher took considerable time looking at the Law, the

Acts of parliament, statutory instruments, and judicial decisions. The researcher thus

used the facts or information which is already available and made the analysis to make

a critical evaluation of the material. The researcher tried as much as possible to first

collect the relevant data, information, statutes and applicable cases in the area of

professional negligence centering at the Legal profession and proceeded to examine the

mass of information available with the view to bringing out the salient issues and apply

them to the topic under investigation. The researcher was able to bridge the gaps and

the ambiguities in the law though the systematic analysis, since research reveals the

gaps ambiguities in the law and where relevant the recommendations made thereof

serve as feed back to the legislature who could thereafter amend the law.

3.1.5. Qualitative Method This research was based on empirical data or the information which already exists. It

relied on observation of the phenomenon as perceived in experience. This was based

on the exploratory approach aiming at producing a comprehensive and detailed

description of the area under investigation. A successful qualitative research depends

on the researchers skills such as being sensitive, open minded, responsive to

contradictory evidence and being a good listener.

The major tools that were used in this kind of research were;

I. Legislations of Parliament and the regulations thereof

II. Institution

III. Judicial precedents

IV. Reference to other Published Authoritative Material

This therefore implied the subjective involvement of the researcher.

36

3.1.6. Review of the identified research Material

The researcher reviewed the material gathered that is to say the relevant legislations,

regulations made, the text books, articles, journals, and also consulted the institutions

involved on professional negligence in the legal profession.

3.1.7. Conclusion

The research design varies by various fields and topics under investigation. In many

cases some researchers combine all and pick out one form of analysis to better answer

questions which cannot be studied in Laboratory. The researcher thus combined the

systematic approach, the analytical approach, and the qualitative approaches in coming

up with this report. Doctrinal research mandates the legal researcher to locate the

required statutory provisions and judicial reflections thereon that could have bearing on

the legal doctrine, the concept or the rule under inquiry. The provisions of the

legislations, regulations and judicial decisions constitute the basic data for doctrinal

legal research. However, the researcher in this report also considered secondary source

materials such as the published articles, legal periodicals, text reference books, for

further insight in the subject under inquiry.

37

0

CHAPTER FOUR:

FINDINGS.

4.1 Introduction The Law has established that a professional is required to meet the standard of the

ordinary skilled man exercising and professing to have the special skill in question. An

error of judgment will not amount to negligence unless it is one that would not have

been made by a reasonably competent professional with the standard and type of skill

of the defendant, acting with ordinary care98• The Laws enacted by Parliament in

Uganda attempt to incorporate this principle and with the abundance of decided

authorities both in Uganda and outside Uganda and the growing international demand

for services from Uganda, and the need to protect the public who are the potential

clients of the persons professing to the growing number of professions from injury

weather physical, economical or mental arising out of the negligence of the said

professionals the laws has had a positive impact on professional negligence through the

various mechanisms established.

4.2. Applicability of Common Law Doctrines in Uganda.

The researcher found out that; Professional negligence is a breach of the duty of care

between professionals and their clients. The duty of care is a common law arrangement

where the client expects a level of professionalism and standards commonly held by

those in the profession. The most common term for professional negligence, is that

known as professional malpractice in medical malpractice.

The Common Law duty of care is a broad legal definition that protects individuals from

others that engage in activities that could potentially harm others if proper precautions

are not taken. This ranges from operating a moving vehicle to performing surgery. This

also covers situations where individuals may suffer economic or emotional damage due

to poor advice or conduct. a manufacturer has a duty of care to the consumer as the

consumer will assume that product he or she is buying is safe and adheres to standards

98Halsbury's Laws of England Vol 78 Para 23

38

set by the government and common practices. The standard for this was set in the case

of Donoghue v Stevenson where a ginger beer manufacturer allowed a snail into

Stevenson's bottle. British courts ruled that Steve·nson was owed a duty of care by

Donoghue to ensure the safety of his manufacturing process to his customers.

One of the prime functions of negligence law is compensation for occurrences to

persons who are victims of someone else's faulty conduct. The Law provides for the

avenues through which the negligent professional will be held liable. The Advocates Act

and the regulations made there under provides for orders of compensation99 the

advocate will be made to pay compensation to the injured part due to his negligent

acts, even though the compensation here is not adequate. Thus the Law has improved

on the service delivery.

Another objective of negligence law is to serve as a deterrent by reducing the frequency

of occurrences that will be claimed to be mistakes yet they are arising out of the

Professional malpractice of the professional and thus everyone who carries out his

profession will do so with the most required skills bearing in mind of the cost and

embarrassment hejshe is likely to face if he omitted to do so.

Negligence law encourages people to behave carefully in order to avoid liability. You

must take reasonable care to avoid acts or omissions which you can reasonably foresee

would be likely to injure your neighbor.

4.2.1. Challenges in Litigation The Researcher found out that by Making the Law operates in a stricter sense by

allowing civil action is likely to produce a flood of claims and, even if some claims did

emerge, a claimant alleging for example that poor advocacy resulted in an unfavorable

outcome would face the very great difficulty of showing that a better standard of

advocacy would have resulted in a more favorable outcome. Unmeritorious and

vexatious claims against professionals are simply struck out. This might be the fact why

99 Section 20,4(e)

39

most legislations are not so strict and even do not give a proper definition of

professional misconduct, neither do they directly address professional negligence.

In protecting the profession of Law, in 1846,the Chief Justice of Ontario once said 100''The profession of law would be the most hazardous of all professions if those who

practice in any of the branches were to be held strictly accountable for the accuracy of

their opinions". No one is willing to work under that tension and fear of clients filling

flood of claims and complaints against them.

4.2.2. Remedies Available to injured Persons arising out Negligence of Legal Practitioners. The researcher found out that, there are remedies available to the injured parties in

cases of professional Negligence in the Legal profession.

Under the 101Advocates Act102an advocate could be ordered to pay compensation, to

the injured Party for professional negligence or otherwise misconduct, Payment of the

costs103 incurred by the claimant in tendering of evidence and transportation of

witnesses. The Disciplinary Committee may issue a warrant for the levy of the amount

of any sum ordered to be paid by virtue of this section on the immovable and movable

property of the advocate by distress and sale under warrant and the warrant shall be

enforced as if it were a warrant issued by the High Court. 104 The Disciplinary Committee

may order any advocate against whom a case of professional misconduct has been

made out to restore any property in his or her possession or under his or her control to

the person appearing to the committee to be entitled to the property. 105These orders

are executable as if they were orders or Decrees of the High court.

At common Law even a third Parties can sue for damages applying the principle in

Hedley Byrne & Co Ltd v Heller & Partners Ltd and Donoghue v Stevensod06,

100 Alexander v. Small and Gavan (1846) 2 U.C.R. 298, 300, Cited in A note on the Lawyers Mulpractice:The Legal Boundaries and Judicial regulation by TD.Bastedo available on line at http://digitalcommons.osgoode.yorku.ca/ohlj 101 Advocates Act cap 267 Laws of Uganda 102 Section 20,4( e) of the Advocates Act 103 Section 20(5) of the Advocates Act 104

Section 20(6) of the Advocates Act 105 Section 20 (7) of the Advocates Act 106

( 1932) AC 562

40

a solicitor who is instructed by a client to carry out a transaction that will confer a

benefit on a third party owes a duty of care towards the third party in carrying out that

transaction, in that the third party is a person within his direct contemplation as

someone who is likely to be so closely and directly affected by his acts or omissions that

he can reasonably foresee that the third party is likely to be injured by those acts or

omissions but the proximity principle is paramount, Thus, in general, when acting for

the seller of land a solicitor does not owe a duty to the buyer

The claimant could proceed against the professional directly for recovery Ridehalgh v

Horsefieltf07ruled that orders could be made against barristers personally and not the

entire Law firm where the said Advocate is practicing in partnership together with

others.

4.2.3. Difficulties in enforcement and Pursuit of remedies

The researcher found out that in cases for negligence on the part of Lawyer, the courts

are reluctant to award damages to third parties Further, and perhaps most strikingly, it

has been held that a solicitor advising a client about a proposed dealing with his

property in his lifetime owes no duty of care to a prospective beneficiary under the

client's then will who may be prejudicially affected. In Clarke v Bruce Lance &

Co.108,it was recognized that solicitors may sometimes give advice which directly

prejudices the interests of others who have a relationship with the client But, so long

as this advice is consistent with the duty owed to the client, there will be no liability to

that third party. Exceptionally, solicitors have been held to have assumed a

responsibility towards the claimant, i.e. in situations analogous to a holding a fund on

behalf of both sides of a dispute pending its resolution.

In cases of Legal Negligence the Doctrine does not operate in criminal matters

prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v

10'(1994) Ch 205 108(1988) 1 WLR 881

41

Commissioner of Police of the Metropolis'-09. ·If a defendant is convicted after a

full and fair trial, the remedy is to appeal. An attempt to challenge the convictions by

suing the defence advocate would be an abuse of process

It is extremely difficult to define that exact limits by which the skill and diligence which

A Lawyer for instance undertakes to furnish in the conduct of the case is bounded or to

trace the precisely the biding line between the reasonable skill and diligence which

appears to satisfy his undertaking. It is a question of degree, and there is a borderline

with in which it is difficult to say whether a breach of duty has not been committed.

The plaintiff has to demonstrate that the solicitor has strayed from the permissible

posture of errors of judgment and trespassed upon the road of negligence thus making

it complicated for the injured client to get redress.

The research found out that, the relevant government bodies tasked with the regulation

and enforcement of ethical standards among professionals in their respective fields, lack

adequate funding and thus their operations are hampered due to the high cost involved

for example in publishing literature in the bid to sensitize the public about their rights.

It was also discovered that a large number of the population of Uganda have no

knowledge about the respective bodies which are mandated to regulate and maintain

ethical standards among the professionals. Even among the educated population, some

people have no knowledge what so ever about these bodies and have suffered silently

with no one to address their grievances. Most of the cases are reported to the Police

and the same cases are buried there at Police Stations, because the claimants did not

know where to report.

Also some people fear to report professional negligence cases, the only ones which

have come up are those involving fatal occurrences but most of the cases occurring are

contained there. Some people fear Lawyers . A lawyer should be respected if he earns

"'(1995) QB 335

42

the respect in question but not to be feared. They fear Lawyers winning cases against

them and costs being enforced against them by the Lawyers once they lose in claim.

The researcher found out that people have no access to the Law and even where some

accessed, the Law is complicated to interpret and understand. The most affected are

those in villages and remote areas. The Law needs not to be enacted to meet only

certain class of persons; it should be able to apply to all persons irrespective of their

status.

The researcher found out that there are Laws enacted by Parliament and whose

provisions could be interpreted to provide for professional Negligence in the Legal

Profession but there are Lacunas in these Laws, and too much resort has to be made

on Common Law doctrines of Negligence which poses a great hardship in litigation.

4.3. Conclusion Tindal C.J "Every person who enters into a learned profession undertakes to bring to

the exercise of it a reasonable degree of care and skill. He does not undertake, if he is

an attorne~ that at all events you shall gain your case, nor does a surgeon undertake

that he will perform a cure/ nor does he undertake to use the highest possible degree

of care (Lanphier v Phiposl10

In the case of an attorney, it reflected the need to take account of the cooperation of

the client, the available evidence, the credibility and unpredictability of witnesses, the

resources deployed by the parties and other factors beyond the attorney's control.

Likewise in the case of other professionals the selection of the duty is explicable in

terms of an assessment of features specific to their occupation.

An advocate is expected to show the average amount of competence normally

possessed by other advocates who also defend clients. If such competence falls short of

the standard

110(1838) 8 C. & P. 475.)

43

0

required, the advocate as a professional adviser may be held guilty of some misconduct

and be liable for a tort of negligence.

The duty extends to third Parties like for the case of solicitors applying the principle in

Hedley Byrne & Co Ltd v Heller & Partners Ltd and Donoghue v Stevensoff-11,

a solicitor who is instructed by a client to carry out a transaction that will confer a

benefit on a third party owes a duty of care towards the third party in carrying out that

transaction, in that the third party is a person within his direct contemplation as

someone who is likely to be so closely and directly affected by his acts or omissions that

he can reasonably foresee that the third party is likely to be injured by those acts or

omissions

111 [1932] AC 562

44

CHAPTER FIVE:

RECOMMENDATIONS AND CONClUSION

5.1 Introduction

The researcher has found out that there exist the Laws and regulations to deal with the

professional Negligence in the Legal profession in Uganda. Abundance of English cases,

The writs in Law Journals, Law Articles, Text books, doctrines of common Law point to

the idea that the Lawyer owes duty of care to the Client from whom he/she has

received instructions. The researcher having looked at the said Laws, further looked at

the relevant institutions which play a role in the maintenance of professional ethics in

the legal profession and analyzed the same where loopholes in the Law were identified,

challenges hindering the implementation of the Law, and came up with the following

recommendations which could aid in the maintenance of the standards of the Legal

Profession.

5.2. General Recommendations The Government should provide adequate support to sectorial authorities under the

relevant bodies entrusted with the promotion and regulation of ethical standards in the

professions practiced in Uganda. The Budget of Uganda in each financial year should

allocate more funds to these bodies. The Bodies in Particular include, The Law Council

for Uganda, If funding is improved the relevant departments and bodies should be able

to improve and enhance on performance and to maintain partnership and support to

enable to enable a faster registration of the reforms sought. In the Report112-rhe causes

for the Case Backlog was attributed to the Law funding of the Law Council Department.

This increased funding will cater for the increased sittings.

There should be a doubled effort in combatting corruption by bringing to book all

corrupt officials in these bodies who have greatly contributed to the low Ethical

standards which have contributed to the Low levels in exercising professional skills. It

112 Performance Report on case Backlog Reduction in the Law Council Department Presented at the Review Conference for the JLOS Case Backlog Quick Wins Reduction Program, At Imperial Royale Hotel Kampala on March 7'h 2011 By Margret Apiny Acting General Secretary Law Council.

45

would be injurious to the public if the bodies keep maintaining names of practitioners

on the rolls in their respective departments wher~ such practitioners deserved to be

struck off to prevent further spread of their incompetence.

There is also need to increase in the sensitization flame work to enable the unreached

and the illiterate persons know their rights to redress once they establish that the injury

suffered at a given point and off course depending on particular circumstances to the

relevant field and the profession they contracted arose from the Negligence of the

professional contracted Most of these are the people in villages where the access to

facilities and information is quite difficult. All stake holders; civil society organizations,

the Private sector, the Government should play an active role in this.

The relevant Laws governing and whose provisions provide for the regulation of

different the Legal profession professions in Uganda need to be translated in Local

Languages and made available to the whole country to make it possible for the illiterate

to know. It is true that ignorance of the Law is no defense but the interpretation in this

sense should not be done to the detriment of the poor and illiterate persons who are

most likely to suffer because of the Lack of knowledge as to their rights while dealing

with professionals.

The relevant statutory body; The Law Council established under the Advocates Act113

need to extend their operation by opening up upcountry offices other than being

confined in Kampala and making it difficult for people from distant places to access

justice and remedies available to them because of the cost of transportation, housing

and feeding while pursuing a claim against a professional. The offices need to be

established and complaint desks thereof established and with enough staff to handle

the complaints.

The researcher recommends the Amendment of the Advocates Act14and the

Regulations made there under to empower the Secretariat to determine the matters

113 Cap 267 Laws of Uganda 114 Cap 267 Laws of Uganda

46

which should be prosecuted just like it was before the amendments of the Advocates

Act. The amendment should also possibly address the issue of quorum such that part

heard matters should be able to continue as long as there is a member of the previous

quorum still serving on the Committee.

The researcher recommends Capacity building through training for both the members

and the prosecutors to enable them adapt to faster ways of handling matters. We

believe the training would also equip the members with the values, principles and goals

which would go a long way in creating and facilitating a faster system of handling

complaints.

Study tour in other relevant jurisdictions to be undertaken to equip the members and

the Prosecution with the best practices for improved performance.

Taking drastic disciplinary action against advocates with several complaints. Such

measures include: both definite and indefinite suspension from legal practice and

compensation of any loss caused.

5.3. CONCLUSION

With the rapid growing economy, and with the growing Technology, there will be more

professions coming up. Human skill is improving every hour unlike in the past when the

only fields regarded as professions were Law and Medicine and perhaps Ministry. The

current trend goes beyond that assertion and thus the need to protect the public from

the likely negligence. The Law must play a vital role, in the protection of the public who

are the potential clients of the professionals practicing their respective professions. In

the country where most people now consider money gain other than the quality service

the degree of protection need to be above what is sofa accorded. Professionals

providing services in a wide range of situations, from surveyors and estate agents to

doctors, solicitors, accountants, financial services providers, Information Technology

professionals, patent agents, etc., will be judged by the standards of those claiming to

have that same set of skills and abilities.

47

Professionals are said to be people who exercise a calling and these calling must be

exercised with greater skills and care to avoid any injuries that may arise from mere

failure to act as a prudent profession in the relevant field the particular time and with

the particular facts would have acted. It is without doubt and as the abundance of

authorities have established that the Judgment is that of the ordinary Man but that

regard is given to

In the115Where a person is so placed that others could reasonably rely upon his

judgment or his skill or upon his ability to make careful inquiry, and a person takes it

upon himself to give information or advice to, or allows his information or advice to be

passed on to, another person who, as he knows or should know, will place reliance

upon it, then a duty of care will arise. ''There are several features that characterize the

place of the legal practitioner in society. These relate to the various duties that attach

to advocacy: duty to his client, to the court, and to society. Sir Edward Marshall Hall in

his biography is quoted as saying116: ''Now it is difficult for a man, however wise or

eloquent to speak for himself, when fortune, reputation, happiness, life itself, are in

jeopardy and rest on the decision of, sworn before God to find an impartial verdict from

the evidence brought before them. Hence has arisen the honorable and necessary

profession of the advocate; it is indeed a high and responsible calling for into his

keeping are entrusted the dearest interests of other men. His responsibility is wider in

its scope than a physician's and more direct and individual than that of a statesman; he

must be something of an actor not indeed playing a well-learned part before a painted

scenery, but fighting real battles on other men's behalf in which at any moment,

surprises may render all rehearsal and preparation futile'~

Lord Macmillan, formerly of the House of Lords, Classified the duties of the Advocate as

115Hedley Byme & Co Ltd v Heller & Partners Ltd (1964) AC 465 u'Marjoribanks, E. Famous Trials of Marshall, London; Penguin at p. 9.

48

Five-five- fold: In the discharge of his office the advocate has a duty to his client, a

duty to his opponent, a duty to the court, a duty to himself and a duty to the state.

Judge

Mwalusanya117 argues that Lord Macmillan could and some say he should, have

included other duties in the already formidable list. In the circumstances, therefore, the

advocate's position is far from enviable: "a good advocate must be histrionic crafty,

courageous, eloquent, quick-minded charming and a great hearted. He is not a mere

mouthpiece of his client. His office is a higher to consider him in that light is to degrade

him. He gives to his client the benefit of his learning, his talents, and his judgement.

Advocates are Officers of the court and their main duty is to assist the court in the

administration of justice. Their duty is to see that justice is administered fairly and

Fearlessly in this country. Whenever they are instructed to represent a person say on a

criminal charge, their duty is first to the court and then to the accused person. Where

they believe that the client is innocent they must at their disposal see that he is not

convicted for an offence which he has not committed.

But it is also the duty of Advocates to advise their clients on what the laws of this

country are, so that if under the law their clients have committed offences, although he

may not think of so himself, Advocates are required to advise them to plead guilty.

Under the Law, an advocate is expected to show the average amount of competence

normally possessed by other advocates who also defend clients. If such competence

falls short of the standard required, the advocate as a professional adviser may be held

guilty of some misconduct and be liable for a tort of negligence.

117KassimManywele v R Criminal Application No. 39 of 1990 H.C.T Dodoma at p. 20 of typedJudgement.

49

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'WebJCLI[1J

Hill, J. (1986). "Litigation and Negligence: A Comparative Study". 6 Oxford J.L.S. 183.

Inns of Court School of Law.(2004). Advanced Civil Litigation (Professional Negligence)

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Poweii.J; Stewart, Roger & Jackson, Rupert M. (2002).Jackson and Powell on

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Clerk and Lindsell on Torts, Fourth Supplement to the Nineteenth Edition, The Common

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Marjoribanks, E. Famous Trials of Marshall, London; Penguin at p. 9.

so

Halsbury Laws of Enrland 7(1) 41hEdn Para 905,912-914 on Auditors Duties & Auditors

Reports.

Halsbury Laws 5th Edition Para 23

Digest 36(1) Reissue 49-50, 149-158

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ARTICLES

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321. http:/ /digitalcommons.osgoode.yorku.ca/ ohljjvol7 /iss3/ 4

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