All England Law Reports/1978/Volume 3 /Saif Ali v Sydney Mitchell & Co (a firm) and others, P (third party) -[1978] 3 All ER 1033

[1978] 3 All ER 1033

Saif Ali v Sydney Mitchell & Co (a firm) and others, P (third party)

HOUSE OF LORDS

LORD WILBERFORCE, LORD DIPLOCK, LORD SALMON, LORD RUSSELL OF KILLOWEN AND LORDKEITH OF KINKEL

10, 11, 12 JULY, 2 NOVEMBER 1978

Counsel - Negligence - Immunity - Preliminary advice on matters connected with pending or contemplatedlitigation - Advice given negligently - Counsel instructed to advise on claim for damages and settleproceedings - Counsel advising and settling proceedings - Proceedings unsuccessful - Counsel sued fornegligence in respect of advice given on claim, in settling proceedings and in advising during proceedings -Whether action for negligence lies against counsel in respect of preliminary advice given in connection withlitigation - Whether proceedings should be struck out.

In March 1966 a van which was being driven by M and in which the plaintiff was a passenger was involved ina collision with a car which was being driven by Mrs S, who was taking her children to school. The plaintiffwas injured in the accident. In 1967, after Mrs S had pleaded guilty to a charge of driving without due careand attention at the time of the accident, the plaintiff and M consulted a solicitor with the intention of makinga claim for damages. The solicitor obtained an opinion on the matter from a barrister and thereafterinstructed him to settle proceedings and advise. He advised that the plaintiff and M should sue Mr S, whowas the owner of the car, on the ground that Mrs S had been driving the car as his agent at the time of thecollision. The barrister settled a draft writ and statement of claim against Mr S, alleging that Mrs S had beendriving the car as his agent. On 14 November 1968 the solicitor issued the writ and statement of claim assettled by the barrister, but did not serve them at that stage. He then had a meeting with Mr S's insurers whosuggested that there had been contributory negligence by M and indicated that Mrs S's agency might bedisputed. The solicitor told the barrister about these two points but the barrister did not advise the plaintiff tobe separately represented or to sue both drivers, Mrs S and M, and the three year limitation period forbringing the plaintiffs claim expired in March 1969 without any change being made in the writ and statementof claim. They were served on Mr S on 29 August 1969. Shortly afterwards the barrister advised that theplaintiff should be separately represented and thereafter he was. Mr S put in a defence in which he admittedthat Mrs S had been acting as his agent but he withdrew the admission early in 1972. As a result theplaintiff's new advisers considered that it was impossible to continue the case against Mr S and discontinuedthe action. As the three year limitation period had expired, the plaintiff could not then issue a writ against MrsS or M. Instead he issued a writ against the solicitor who had represented him until 1969, alleging that hehad been negligent in failing to advise him to take proceedings against either Mrs S or M or both. Thesolicitor issued a third party notice against the barrister claiming that he was entitled to be indemnified inrespect of any damages payable to the plaintiff on the ground that the barrister had been negligent inadvising who should be joined as defendant to the plaintiff's claim and in settling the pleadings in accordancewith that erroneous advice. The barrister applied for the third party notice and statement of claim to be struckout on the ground that they disclosed no reasonable cause of action. The district registrar granted theapplication but his order was reversed by the judge on appeal. The Court of Appeal ([1977] 3 All ER 744)reversed the judge's order on the ground that the barrister was immune from any action for professionalnegligence. The solicitor appealed to the House of Lords.

[1978] 3 All ER 1033 at 1034

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Held (Lord Russell of Killowen and Lord Keith of Kinkel dissenting) - Although public policy required that abarrister should be immune from suit for negligence in respect of his acts or omissions in the conduct andmanagement of litigation which caused damage to his client, such immunity was an exception to the principlethat a professional person who held himself out as qualified to practise that profession was under a duty touse reasonable care and skill and was not to be given any wider application than was absolutely necessaryin the interests of the administration of justice. Accordingly, a barrister's immunity from suit extended only tothose matters of pre-trial work which were so intimately connected with the conduct of the cause in court thatthey could fairly be said to be preliminary decisions affecting the way that cause was conducted when itcame to a hearing. Inasmuch as the barrister's advice and settling of the pleadings in fact prevented theplaintiff's cause from coming to court as it should have done, it could not be said to have been intimatelyconnected with the conduct of the plaintiff's cause in court, and was therefore not within the sphere of abarrister's immunity from suit for negligence. The appeal would accordingly be allowed (see p 1039 b to f andj to p 1040 a, p 1041 f to h, p 1044 c d, p 1046 a to c and e to g, p 1048 a b, p 1050 f to h, p 1051 d to g andp 1052 e to g, post).

Dictum of McCarthy P in Rees v Sinclair [1974] 1 NZLR at 187 adopted.

Rondel v Worsley [1967] 3 All ER 993 considered.

Per Lord Wilberforce, Lord Diplock and Lord Salmon. A solicitor acting as an advocate in court enjoys thesame immunity as a barrister (see p 1039 g, p 1046 a and p 1048 h, post).

Decision of the Court of Appeal [1977] 3 All ER 744 reversed.

Notes

For the liability of barristers to their clients for negligence, see 3 Halsbury's Laws (4th Edn) para 1194, andfor cases on the subject, see 3 Digest (Repl) 376, 282-285.

Cases referred to in opinions

Anns v London Borough of Merton [1977] 2 All ER 492, [1977] 2 WLR 1024, 141 JP 526, 75 LGR 555,HL.

Arenson v Casson, Beckman, Rutley & Co [1975] 3 All ER 901, [1977] AC 405, [1975] 3 WLR 815,[1976] 1 Lloyd's Rep 179, HL, Digest (Cont Vol D) 1016, 26a.

British Railways Board v Herrington [1972] 1 All ER 749, [1972] AC 877, [1972] 2 WLR 537, HL, Digest(Cont Vol D) 741, 269a.

Cabassi v Vila (1940) 64 CLR 130, 35 QJPR 60, sub nom Cabassi v Ferrando 47 ALR 33, 14 ALJ 336, 1Digest (Repl) 41, *131.

Candler v Crane, Christmas & Co [1951] 1 All ER 426, [1951] 2 KB 164, CA, 36(1) Digest (Reissue) 22,75.

Chambers v Goldthorpe, Restell v Nye [1901] 1 KB 624, 70 LJKB 482, 84 LT 444, CA, 7 Digest

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(Reissue) 461, 480.

Finnegan v Allen [1943] 1 All ER 493, [1943] 1 KB 423, 112 LJKB 323, 168 LT 316, CA, 47 Digest (Repl)563, 26.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465, [1963] 3 WLR 101,[1963] 1 Lloyd's Rep 485, HL, 36(1) Digest (Reissue) 24, 84.

Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, [1970] 2 WLR 1140, [1970] 1Lloyd's Rep 453, HL, 36(1) Digest (Reissue) 27, 93.

Kennedy v Brown (1863) 13 CBNS 677, 1 New Rep 275, 32 LJCP 137, 7 LT 626, 9 Jur NS 119, 143 ER268, 3 Digest (Repl) 370, 215.

Marrinan v Vibart [1962] 3 All ER 380, [1963] 1 QB 528, [1962] 3 WLR 912, CA; affg [1962] 1 All ER 869,[1963] 1 QB 234, [1962] 2 WLR 869, 22 Digest (Reissue) 427, 4268.

Morgans v Launchbury [1972] 2 All ER 606, [1973] AC 127, [1972] 2 WLR 1217, [1972] 1 Lloyd's Rep483, [1972] RTR 406, HL, 36(1) Digest (Reissue) 173, 643.

Rees v Sinclair [1973] 1 NZLR 236; affd [1974] 1 NZLR 180, CA, Digest (Cont Vol D) 59, *49Aa.

Rondel v Worsley [1967] 3 All ER 993, [1969] 1 AC 191, [1967] 3 WLR 1666, HL; affg [1966] 3 All ER657, [1967] 1 QB 443, [1967] 3 WLR 950, CA; affg [1966] 1 All ER 467, [1967] 1 QB 443, [1966] 2 WLR300, Digest (Cont Vol C) 42, 284a.

[1978] 3 All ER 1033 at 1035

Sutcliffe v Thackrah [1974] 1 All ER 859, [1974] AC 727, [1974] 2 WLR 295, [1974] 1 Lloyd's Rep 318,HL, Digest (Cont Vol D) 87, 481a.

Swinfen v Lord Chelmsford (1860) 5 H & N 890, 29 LJ Ex 382, 2 LT 406, 6 Jur NS 1035, 157 ER 1436, 3Digest (Repl) 376, 284.

Tojo Maru, The, Owners of Motor Tanker Tojo Maru (her cargo and freight) v NV Bureau Wijsmuller[1971] 1 All ER 1110, [1972] AC 242, [1971] 2 WLR 970, sub nom NV Bureau Wijsmuller v Tojo Maru(Owners), The Tojo Maru [1971] 1 Lloyd's Rep 341, HL, Digest (Cont Vol D) 835, 8366a.

Watson v M'Ewan, Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1, 74 LJPC 151, 93 LT 489, HL,32 Digest (Repl) 126, 1476.

Appeal

In 1974 the plaintiff, Saif Ali, brought an action against the appellants, (1) Sydney Mitchell & Co(sued as a firm), (2) A W Smith & Co (sued as a firm) and (3) Christopher John Smith (a solicitor,who at all material times was a partner in or principal of the second appellants and was currently apartner in the first appellants with whom the second appellants had amalgamated on 1 January

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1970), claiming damages for professional negligence arising out of the appellants' conduct of theplaintiff's claim for damages for personal injuries sustained as a result of a road accident on 26March 1966. On 29 May 1975 the appellants served on the third party, a barrister, a third partynotice claiming that they were entitled to be indemnified by him against the plaintiff's claim againstthem on the grounds that at all material times and in all material matters the appellants hadinstructed him and he had accepted instructions as counsel for the plaintiff and that in the mattersin respect of which complaint was made in the plaintiff's claim against them they had acted on hisadvice. By an order of Mr Assistant Registrar Cowan, dated 12 November 1975, it was ordered thatthe appellants' third party notice should stand as a statement of claim on the barrister. The barristerapplied for the third party notice and statement of claim to be struck out on the ground that itdisclosed no reasonable cause of action. By an order of Mr District Registrar Barrington-Ward,dated 26 July 1976, the third party notice and statement of claim, and accordingly the third partyproceedings, were struck out. The appellants appealed. On 24 February 1977 Kerr J allowed theappeal and ordered the third party notice, statement of claim and third party proceedings to berestored. The barrister appealed and on 13 May 1977 the Court of Appeal ([1977] 3 All ER 744,[1978] QB 95) (Lord Denning MR, Lawton and Bridge LJJ) upheld his appeal and ordered the thirdparty notice and statement of claim to be struck out and the third party proceedings to bedismissed. The appellants appealed to the House of Lords. The facts are set out in the opinion ofLord Wilberforce.

Richard Yorke QC, Gavin Lightman and Stuart Isaacs for the first appellants.

John Peppitt QC, Colin Smith and I W Geering for the barrister.

The plaintiff and the second and third appellants did not appear.

Their Lordships took time for consideration

2 November 1978. The following opinions were delivered.

LORD WILBERFORCE.

My Lords, in Rondel v Worsley, this House decided that a barrister was immune from any action forprofessional negligence in respect of acts or omissions during the trial of criminal proceedings against his layclient. Now in this case it is necessary to decide whether the barrister's immunity covers pre-trial acts oromissions in connection with civil proceedings brought by his lay client.

The plaintiff, Mr Saif Ali, a passenger in a Morris van driven by his friend, Mr Akram, was injured on 26 March1966 in a collision with a motor car driven by Mrs Sugden, to

[1978] 3 All ER 1033 at 1036

whose husband the car belonged. There is no doubt that Mrs Sugden was to blame, and possibly wholly toblame. On the instructions of solicitors the barrister settled proceedings and drafted a pleading on behalf ofMr Ali and Mr Akram against Mr Sugden. This was on the basis that, as Mrs Sugden was using the car todrive their children to school, Mr Sugden was responsible for her negligence. Though, with hindsight, it mighthave been wise to sue Mrs Sugden as well as her husband, the course adopted, to sue Mr Sugden who wasthe insured party, was correct in law. Indeed it appeared at first that Mr Sugden would not denyresponsibility. However, when his insurers took charge of the matter, they suggested (i) that Mrs Sugden'sagency for Mr Sugden might be disputed and (ii) that a case of contributory negligence might be raisedagainst Mr Akram. The barrister was informed of this and instructions were sent to him to consideramendment of the pleading. By this time, 24 February 1969, such was the leisurely pace of proceeding,there was little time left before the three year period of limitation from the date of the accident (on 26 March

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1969) would expire. The barrister, however, so it is said in the third party notice, orally confirmed his advicethat no amendment was necessary, on what date is not stated, and later, on 1 April 1969, advised in writing.When he did this the three year period had elapsed, and the advice was that it was too late for the plaintiff tosue Mr Akram. It was also, of course, too late to sue Mrs Sugden. Mr Sugden in his first defence dated 16October 1969 denied Mrs Sugden's agency, but by an amendment in June 1971 admitted it. Later still(apparently in June 1972) he asked leave to re-amend so as to deny the agency. This seems to have beenagreed to unconditionally by the plaintiff's solicitors, and leave was given. Later, on the advice, it is said, ofleading counsel, proceedings against Mr Sugden were dropped, so that the plaintiff, who started with animpregnable claim for damages, found after five years that he had nobody he could sue. He thereforebrought proceedings against his solicitors for negligence, and the solicitors brought third party proceedingsagainst the barrister. Later, the plaintiff also brought direct proceedings against the barrister. This appeal isconcerned with the third party proceedings only. The Court of Appeal has struck them out on the ground thatthe barrister is immune from suit.

It is important to see what is the precise negligence alleged. According to the amended third party notice thenegligence consisted of: (i) delaying until after the expiry of the limitation period to advise whether theproceedings should be resettled in view of the non-admission by Mr Sugden that Mrs Sugden was driving ashis agent and the possible negligence of Mr Akram, (ii) failing to advise until a late stage that there might bea conflict of interest between the plaintiff and Mr Akram and (iii) failing to advise the plaintiff that he shouldtake proceedings against Mr Sugden and/or Mrs Sugden and/or Mr Akram and advising that proceedingsshould be issued against Mr Sugden only.

For the purposes of this appeal it has to be assumed that the factual basis for these allegations (as set outabove) is correct, that there was some degree of negligence on the barrister's part as regards one at least ofthe three matters, that such negligence resulted in damage and that the solicitors are entitled to indemnity orcontribution from the barrister. All of these assumptions may turn out to be incorrect if the matter goes to trial,but cannot be challenged at this stage.

The question now for this House is whether on the assumptions stated the claim by the solicitors against thebarrister is so clearly unfounded that it ought to be struck out. This involves a reconsideration of Rondel vWorsley in order to see what rule of law is to be extracted from it.

Rondel v Worsley gave rise to a restatement of the traditional principle of barristers' immunity in the lightparticularly of the decision of this House in Hedley Byrne & Co Ltd v Heller & Partners Ltd. Previously animportant if not the main reason for the immunity was supposed to lie in the fact that a barrister could not suefor his fees: this reason, if valid, would of course have thrown a blanket of immunity over all barristers'actions, in or out of court, whatever their nature. This House, however, in 1967 took the inevitable view

[1978] 3 All ER 1033 at 1037

that this reason no longer applied: liability for negligence might exist in the absence of a contract for reward.Nevertheless the immunity was held to exist on grounds, essentially, of public policy; mainly on the groundthat a barrister owes a duty to the court as well as to his client and should not be inhibited, through fear of anaction by his client, from performing it; and partly on the undesirability of relitigation as between barrister andclient of what was litigated between the client and his opponent. This necessarily involved a removal of thetotal blanket immunity and a restriction of it to such cases as might fall within the area of public policy.

Rondel v Worsley was concerned and only concerned with matters taking place in court which resulted in anoutcome unfavourable to the client. But the speeches contain considered observations as to the extent ofbarristers' immunity for matters taking place outside court and in barristers' chambers. Since the case wasnot concerned with such matters, these observations have the status of obiter dicta. However, not all obiterdicta have the same weight, or lack of weight, in later cases. Of those then made in the House two thingsmay be said. First, they were considered and deliberate observations after discussion of the same matters

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had taken place in the Court of Appeal and in light of judgments in the Court of Appeal. It may be true thatthe counsel in the case did not present detailed arguments as to the position outside the courtroom (they hadno interest in doing so) but I cannot agree that this invalidates or weakens judicial pronouncements. Judgesare more than mere selectors between rival views: they are entitled to and do think for themselves.Secondly, it would have been impossible for their Lordships to have dealt with the extent of barristers'immunity for acts in court without relating this to their immunity for other acts. As I shall shortly show theirLordships attached the immunity to the conduct of litigation. But litigation takes some time to arrive in courtfor trial, so, unless they were prepared to confine the immunity to that part of litigation which occurs in thecourt room, it was not only appropriate but necessary to deal with such acts, in relation to litigation, as occuroutside the courtroom. A statement of principle which stopped at the door of the court would have beentruncated and irrational. These factors, in my opinion, tell in favour of giving considerably more weight to theirLordships' expressions of opinion that obier dicta normally receive. We may clarify them, but we shouldhesitate before disregarding them.

This leads to another point. The general principle that barristers are entitled to some immunity wasestablished, or re-established, by unanimous decision of all their Lordships. It was argued that barristersshould enjoy no greater immunity than other professional men. But that argument was rejected. Barristers, itwas firmly held, have a special status, just as a trial has a special character. Some immunity is necessary inthe public interest, even if, in some rare cases, an individual may suffer loss. Now I would accept that theexistence of a duty of care, and correspondingly of liability in negligence for failure to exercise that duty,continues in the natural course of legal evolution to expand as new situations come before the courts. But Ido not think that this natural process which bears on the existence of a duty of care should lead us to sweepaway after so short a time an immunity from suit on special grounds of principle, which after many centuriesof existence has been restated by this House. No ground was suggested why we should reopen the decisionin Rondel v Worsley and I do not think we should do so. What is required of us is a decision on the limits ofan immunity held by this House to exist: a fringe decision rather than a new pattern. I will now consider theopinions.

Lord Reid ([1967] 3 All ER 993 at 998, [1969] 1 AC 191 at 227) considered that there was no doubt about theposition of barristers appearing in court. There he introduced ([1967] 3 All ER 993 at 1000, [1969] 1 AC 191at 231) the phrase 'their work in conducting litigation'. He made this more explicit when he said ([1967] 3 AllER 993 at 1001, [1969] 1 AC 191 at 231-232): 'The same public duty applies when drawing pleadings orconducting subsequent stages in a case as applies to counsel's conduct during the trial'

[1978] 3 All ER 1033 at 1038

and 'the same will apply at a stage when litigation is impending'. It is clear from this that his Lordship was notseeking with any precision to define the limit of immunity but that his thinking was in terms of litigation, morebroadly than of work in court.

Lord Morris of Borth-y Gest's ([1967] 3 All ER 993 at 1011, 1012, [1969] 1 AC 191 at 247, 248) expressionswere more restrictive: '... what is said or done in the ... management of a case in court' and, later, 'relatingonly to the limited field of the conduct and management of a case in court'. But his Lordship quotes from theleading case of Swinfen v Lord Chelmsford ((1860) 5 H & N 890 at 923) (a case not limited to action in court)the sentence 'no action will lie against counsel for any act honestly done in the conduct or management ofthe cause', and he expressed agreement with the judgment of Salmon LJ in the Court of Appeal which I thinkit fair to say drew the line between litigation and paperwork. Lord Pearce's ([1967] 3 All ER 993 at 1022,[1969] 1 AC 191 at 265) expressions were wider: there is no distinction 'between the liability of a barrister inlitigation and in his other non-litigious work as a barrister'. He held ([1967] 3 All ER 993 at 1030, [1969] 1 AC191 at 276) that a counsel in giving opinions 'not only those on which an action is to be started or not started'owes a duty to the court. Lord Upjohn ([1967] 3 All ER 993 at 1033, [1969] 1 AC 191 at 281) held that theimmunity covers litigation 'at all events in matters pertaining to litigation' and that it must 'start before counselenters the doors of the court to conduct the case'. He continued ([1967] 3 All ER 993 at 1036, [1969] 1 AC191 at 285-286):

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'He will have had to give fearlessly to his client advice on the prospects of success; he will have settled the pleadings;and on discovery and in his advice on evidence and on many other matters he may have had to refuse to adopt hisclient's wishes. As a practical matter, I do not more than suggest that the immunity of counsel in relation to litigationshould start at the letter before action ... '

Finally Lord Pearson used words of exclusion. He asked ([1967] 3 All ER 993 at 1041, [1969] 1 AC 191 at293): 'Does the barrister's immunity extend to "pure paper work', that is to say, drafting and advisory workunconnected with litigation?'

My Lords, none of these expressions is precise. In the nature of things they could not be, but they show aconsensus that what the immunity covers is not only litigation in court but some things which occur at anearlier stage, broadly classified as related to conduct and management of litigation. The spectrum of theopinions is a wide one; we are now concerned to narrow it.

In considering how far a barrister's immunity extends, it is necessary to disentangle three separate strands.

The first is that of privilege. This attaches to proceedings in court and protects equally the judge, counsel,witnesses, jurors and parties. It has nothing to do with a barrister's duty to his client. It is worth noting that thecourts will not allow this privilege to be outflanked by basing a claim on statements made or agreed to bemade out of court if these were clearly and directly made in relation to the proceedings in court: see Watsonv M'Ewan and Marrinan v Vibart.

The second is that of the defences available to barristers. Much if not most of a barrister's work involvesexercise of judgment: it is in the realm of art, not of science. Indeed the solicitor normally goes to counselprecisely at the point where, as between possible courses, a choice can only be made on the basis of ajudgment, which is fallible and may turn out to be wrong. Thus in the nature of things, an action against abarrister who acts honestly and carefully is very unlikely to succeed. But this is not an argument for givinghim total immunity from proceedings.

The third is that of immunity from an action, which depends on public policy. In fixing[1978] 3 All ER 1033 at 1039

its is boundary, account must be taken of the counter policy that a wrong ought not to be without a remedy.Furthermore, if the principle is invoked that it is against public policy to allow issues previously tried (betweenthe client and his adversary) to be relitigated between client and barrister, it may be relevant to ask why thisprinciple should extend to a case in which by the barrister's (assumed) fault, the case never came to trial atall. Then two considerations show that the area of immunity must be cautiously defined.

How can this be done? 'Conduct and management' is the expression which has emerged and no doubt thisis not a sharp definition. I think that something more precise is required if immunity in respect of acts out ofcourt is to be properly related to the immunity for acts in court. A helpful expansion of the phrase wassuggested by McCarthy P in the New Zealand Court of Appeal in Rees v Sinclair ([1974] 1 NZLR 180 at187). I quote his words:

'But I cannot narrow the protection to what is done in Court: it must be wider than that and include some pre-trial work.Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only wherethe particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be apreliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection shouldnot be given any wider application than is absolutely necessary in the interests of the administration of justice, and that

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is why I would not be prepared to include anything which does not come within the test I have stated.'

I do not understand this formulation as suggesting an entirely new test, ie a double test requiring (i) intimateconnection with the conduct of the cause in court and (ii) necessity in the interests of the administration ofjustice. The latter words state the justification for the test but the test lies in the former words. If these wordsinvolve a narrowing of the test as compared with the more general words 'conduct and management' I thinkthat this is right and for that reason I suggest that the passage, if sensibly, and not pedantically, construed,provides a sound foundation for individual decisions by the courts, whether immunity exists in any givencase. I should make four observations. First, I think that the formulation takes proper account, as it should, ofthe fact that many trials, civil and criminal, take place only after interlocutory or pre-trial proceedings. Atthese proceedings decisions may often fall to be made of the same nature as decisions at the trial itself: itwould be illogical and unfair if they were protected in the one case but not in the other. Secondly, a decisionthat a barrister's liability extends so far as I have suggested necessarily involves that it does not extendbeyond that point. In principle, those who undertake to give skilled advice are under a duty to use reasonablecare and skill. The immunity as regards litigation is an exception from this and applies only in the area towhich it extends. Outside that area, the normal rule must apply. Thirdly, I would hold that the same immunityattaches to a solicitor acting as an advocate in court as attaches to a barrister. Fourthly, it is necessary torepeat that the rule of immunity is quite distinct from the question what defences may be available to abarrister when he is sued. It by no means follows that, if an error takes place outside this immunity area, aliability in negligence arises.

Finally, as to the present case, the question is whether the third party claim should be allowed to go to trial,or whether it should be held that it falls within the area of immunity so as to justify striking out at this stage. Inthe Court of Appeal Lord Denning MR and Lawton LJ held that the acts and omissions complained of camewithin the general words 'conduct and management of litigation'. Bridge LJ held that they came within thenarrower test of Rees v Sinclair.

My Lords, I think that the narrower test is the correct one, and I do not consider that the acts complained ofcome within it so as to justify striking out. An oversight, or failure to consider the consequences of not addingMrs Sugden as defendant before the limitation

[1978] 3 All ER 1033 at 1040

period expired, if such took place, may have been defensible, but in my opinion falls well outside theimmunity area. I would allow the appeal.

LORD DIPLOCK.

My Lords, the decision of this House in Hedley Byrne & Co Ltd v Heller & Partners Ltd cast doubt on thefacile explanation, which had been current for a hundred years, that a barrister's immunity from liability foreconomic loss sustained by a client in consequence of his incompetent advice or conduct was due to hisincapacity as counsel to enter into a contractual relationship with his client. In 1967 these doubts were testedin your Lordships' House in Rondel v Worsley and the explanation, which would have covered all workundertaken as a barrister, however remote from litigation it might be, was rejected as legal folklore. If theimmunity in respect of any part of his professional work was to be maintained, some other legal justificationwould be needed for it.

In Rondel v Worsley the barrister, Mr Worsley, had accepted a dock brief at the Old Bailey on behalf of MrRondel, as he was bound to do. So there was no solicitor instructing counsel and no allegations ofnegligence save in the actual conduct of the case in court. The absence of any substance or merit in the

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charges of negligence made by Mr Rondel and the fact that the 'cab-rank' principle had actually operated inhis case lent point to the argument that unless counsel remained immune from liability for his conduct of acase in court, he would be exposed to the risk of baseless and vexatious actions for negligence on the partof disappointed clients, to whom he had no option to deny his professional services.

Rondel v Worsley came before this House on a summons to strike out the statement of claim as disclosingno reasonable cause of action. The only matter for decision was whether a barrister could be liable innegligence to his lay client for the way in which he had conducted the client's defence in court at his trial on acriminal prosecution. The argument, however, ranged widely and the opinions expressed in the majority ofthe speeches were not confined to criminal cases or to the actual conduct of a case in court. They referredalso to civil cases and to work done out of court. Although expressed in somewhat different terms inindividual speeches the highest common factor to be discerned in them is in my view accurately stated in theheadnote as follows:

'... a barrister was immune from an action for negligence at the suit of a client in respect of his conduct andmanagement of a cause in court and the preliminary work connected therewith such as the drawing of pleadings.'

In the instant case the negligence alleged against the barrister has been stated by my noble and learnedfriend, Lord Wilberforce. In substance what it amounts to is that in a very common kind of running downaction he gave negligent advice as to who should be joined as defendant to his client's claim for damagesand settled the pleadings in conformity with that erroneous advice. It thus falls within the words that I haveitalicised in the headnote to Rondel v Worsley. The statement of law expressed in them was not necessary tothe actual decision in that case.

In deciding whether propositions of law expressed in speeches of members of this House on thedetermination of an appeal are binding on lower courts the question whether they form part of the ratiodecidendi of the majority or are mere obiter dicta is crucial. Propositions that fall into the former class arebinding: those in the latter are persuasive only. In this House, however, since the practice statement of1966a, all propositions of law laid down in the speeches in previous appeals are persuasive only, whetherthey constituted an essential logical step in the author!s reasons for disposing of the appeal in the way thathe proposed, and so formed part of his ratio decidendi or, though not regarded by him as necessary for thatpurpose, were included as a helpful guide to judges in the disposition of future cases and so were obiterdicta. Leaving aside all such invidious distinctions as

a Note [1966] 3 All ER 77, [1966] 1 WLR 1234[1978] 3 All ER 1033 at 1041

depend on the reputations which individual former members of the appellate committee may have gained asjurists, the persuasive value of propositions of both classes depends to a considerable extent on the coursefollowed in the arguments presented to the court in the particular case in which they were laid down.

In Rondel v Worsley it was to the interest of neither party to the case to argue that any distinction was to bedrawn between the liability of a barrister for negligence in that part of his work that is done in the court itselfand work that he does out of court. In the dialectic between counsel this played no active part.

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It was the majority of the members of this House who, in seeking a new rationale that would justify retentionof a barrister's immunity from liability for negligence in doing the kind of things that Mr Worsley had beencharged with doing negligently in a criminal trial, themselves suggested a distinction between what abarrister does in the conduct and management of litigation and his non-litigious work. In respect of the formerall five members of this House were of the opinion that notwithstanding that a barrister's immunity could nolonger be based on his incapacity to enter into a contract for the provision of his professional services,nevertheless the policy of the law required that the immunity should be maintained on other grounds. Inrespect of work not directly connected with the conduct of a case in court four members (Lord Pearcedissenting) expressed opinions that he would be liable: but they were not of one mind as to where thedividing line lay between what work attracted immunity from liability for negligence and what work did not. Atthe one extreme Lord Pearson limited himself to the expression of a doubt as to whether the barrister'simmunity extended to 'pure paper work', which he explained as drafting and advisory work unconnected withlitigation. At the other extreme Lord Morris of Borth-y-Gest appears to have regarded the immunity asconfined to the actual conduct of a case in court. He suggests no extension beyond this. Between the twoextremes Lord Reid, in a passage clearly intended to be obiter, expressed the view that the immunity wouldextend to drawing pleadings or conducting subsequent stages in a case, as it applies to counsel's conductduring the trial; while Lord Upjohn, also obiter, suggested that the immunity of counsel, which he regarded asconfined to the conduct of litigation in and out of court, should start in a civil case at the moment when theletter before action was sent.

My Lords, in recognising a barrister's immunity from liability for negligence in the conduct of his professionalwork of a particular kind this House was granting to the Bar a privileged status which the common law doesnot accord to members of any other profession or skilled craft. Those who hold themselves out as qualified topractise other professions, although they are not liable for damage caused by what in the event turns out tohave been an error of judgment on some matter on which the opinions of reasonably informed andcompetent members of the profession might have differed, are nevertheless liable for damage caused bytheir advice, acts or omissions in the course of their professional work which no member of the professionwho was reasonably well-informed and competent would have given or done or omitted to do.

This exceptional immunity of the barrister and its extension to various kinds of professional work that he doesoutside the courtroom can no longer be justified as the automatic corollary of the rule that a barrister cannotcontract to render professional services. In my view, it must be justified, if at all, as a matter of policy of thelaw and by the special characteristics of the kind of work to which the immunity applies that distinguish itfrom professional work undertaken by members of other professions.

The general trend in the policy of the law as developed by your Lordships' House in recent years has been toextend to new areas of activity the notion that a man is liable for loss or damage to others resulting from hisfailure to take care.

Hedley Byrne itself marked an important milestone in this development; and the indication of their view bythe majority of this House in Rondel v Worsley that at any rate

[1978] 3 All ER 1033 at 1042

some kinds of work done by a barrister would no longer attract immunity from liability for negligence wasanother, if hesitant, step along the same road. During the years that have passed since Rondel v Worsleywas decided, the extension of liability for negligence in doing things that were not previously regarded asgiving rise to any legal duty of care has gone on apace. A few examples serve to show how broad this trendhas been. Architects have been held liable for negligence in valuing work for the purposes of certificates ofinterim payments under building contracts: Sutcliffe v Thackrah; accountants for negligence when acting asvaluers for the purpose of a contract between other parties: Arenson v Casson, Beckman, Rutley & Co;building inspectors employed by local authorities for negligence in inspecting the foundations of a building incourse of erection: Anns v London Borough of Merton; borstal officers for negligent failure to control their

Page 10

charges: Home Office v Dorset Yacht Co Ltd; and professional salvors have been held liable for negligencein carrying out salvage operations: The Tojo Maru. The extension to the duty of care to trespassers to landthat was made in British Railways Board v Herrington illustrates the existence of a similar general trendextending beyond the limited field of professional work.

In the face of this trend it would in my view be hard to justify founding the decision of the instant appeal on anuncritical acceptance of the highest common factor in the observations of the majority of the members of thisHouse who spoke on the subject in Rondel v Worsley as defining the kind of work done by a barrister outsidethe courtroom door in respect of which he is immune from liability for negligence. What is needed is toidentify those reasons based on public policy which were held to justify a barrister's immunity from liability fornegligence for what he did in court during the trial of a criminal case and, having done so, to decide whetherthey suffice to justify a like immunity when advising a client, through his solicitor, as to who should be made aparty to a proposed civil action and when settling pleadings in the action in conformity with that advice.

There were several reasons given in Rondel v Worsley for distinguishing between the work done by abarrister in the conduct of a criminal trial in court and work done by members of any other profession, so asto entitle the former to an exception from liability for negligence which no other type of professional workenjoyed.

The special characteristic of a barrister's work on which the greatest stress was laid by their Lordships wasthat he does not owe a duty only to his client; he owes a duty also to the court. This is an overriding dutywhich he must observe even though to do so in the particular case may appear to be contrary to the interestsof his client. Furthermore a barrister has to exercise his judgment as to where the balance lies betweenthese competing duties immediately and without opportunity for calm reflection as the trial inexorablyproceeds. His ability of give his best service to the court and to his client, it is said, would be diminished if hewere compelled continually to give consideration to the possible effects the way in which he exercised thatjudgment might have on his own liability to his client for negligence.

To say of a barrister that he owes a duty to the court, or to justice as an abstraction, to act in a particular wayin particular circumstances may seem to be no more than a pretentious way of saying that when a barrister istaking part in litigation he must observe the rules; and this is true of all who practise any profession. Therules which may appear to conflict with the interests of the client are simple to state, although theirapplication in borderline cases may call for a degree of sophistry not readily appreciated by the lay client,particularly one who is defendant in a criminal trial. A barrister must not wilfully mislead the court

[1978] 3 All ER 1033 at 1043

as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule thatthe prosecution must prove its case, he may passively stand by and watch the court being misled by reasonof its failure to ascertain facts that are within the barrister's knowledge. Again although he must not abuse theprivilege which the law accords to him as counsel in rendering him immune from liability for aspersions whichhe makes against anyone in the course of litigation, however unfounded, irrelevant or malicious they may be,questions of considerable nicety may arise as to what constitutes sufficient foundation or relevance to justifythe particular aspersion which his client wants him to make.

The fact that application of the rules that a barrister must observe may in particular cases call for theexercise of finely balanced judgments on matters about which different members of the profession might takedifferent views, does not in my view provide sufficient reason for granting absolute immunity from liability atcommon law. No matter what profession it may be, the common law does not impose on those who practiseit any liability for damage resulting from what in the result turns out to have been errors of judgment, unlessthe error was such as no reasonably well informed and competent member of that profession could havemade. So too the common law makes allowance for the difficulties in the circumstances in which professionaljudgments have to be made and acted on. The salvor and the surgeon, like the barrister, may be called on to

Page 11

make immediate decisions which, if in the result they turn out to have been wrong, may have disastrousconsequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvageor surgical operation; not does it seem that the absence of absolute immunity from negligence has disabledmembers of professions other than the law from giving their best services to those to whom they arerendered.

My Lords, the argument founded on the barrister's competing duties to court and client, on which this Houseso strongly relied in Rondel v Worsley, loses much of its cogency when the scene of the exercise of thebarrister's judgment as to where the balance lies between these duties is shifted from the hurly-burly of thetrial to the relative tranquillity of the barrister's chambers. The kind of judgment which a barrister has toexercise in advising a client as to who should be made defendant to a proposed action and how the claimagainst him should be pleaded, if made with opportunity for reflection, does not seem to me to differ in anyrelevant respect from the kind of judgment which has to be made in other fields of human activity, in whichprognosis by professional advisers plays, a part. If subsequently a barrister is sued by his own client fornegligence on what he advised or did in the particular case, he has the protection that the judge beforewhom the action for negligence against him will be tried is well qualified, without any need of expertevidence, to make allowance for the circumstances in which the impugned decision fell to be made and todifferentiate between an error that was so blatant as to amount to negligence and an exercise of judgmentwhich, though in the event it turned out to have been mistaken, was not outside the range of possiblecourses of action that in the circumstances reasonably competent members of the profession might havechosen to taken.

In Rondel v Worsley some reliance was also placed on the 'cab-rank' principle as distinguishing the Bar fromall other professions. A barrister is not allowed by the rules of his profession to pick and choose betweenclients on whose behalf he will accept instructions. If he is disengaged and a proper fee is tendered to him,he is bound to accept instructions to act on behalf of any client desirous of his services in a field of law inwhich he holds himself out as practising.

The 'cab-rank' principle was a reality in Rondel v Worsley. Mr Worsley was instructed directly by the layclient; he was the recipient of a dock brief. But with the virtual disappearance of the dock brief the effect ofthe cab-rank principle is limited to preventing a barrister from refusing from a solicitor instructions in a field oflaw within which he

[1978] 3 All ER 1033 at 1044

practises simply because he does not like the solicitor or the solicitor's client or the nature of a lawful claim orground of defence of which that client wishes to avail himself. I doubt whether in reality, in the field of civillitigation at any rate, this results often in counsel having to accept work which he would not otherwise bewilling to undertake. But even if there are rare cases where it does, this does not seem to me to affect thecharacter of the decisions that the barrister has to make in carrying out instructions that he receives throughthe client's solicitor. True it is that he may be obliged to accept instructions on behalf of an obstinate andcantankerous client who is more than likely than more rational beings to bring proceedings for negligenceagainst his counsel if disappointed in the result of his litigation; but the existence of this risk does not, in myview, justify depriving all clients of any possibility of a remedy for negligence of counsel, however elementaryand obvious the mistake he had made may be. There are other and more specific means of disposingsummarily of vexatious actions.

In the light of the developments of the law of negligence which have taken place since 1967, I could notreadily find today in the reasons that I have so far discussed convincing ground for holding that a barristerought to be completely immune from liability for negligence for what he does in court in conducting criminalor civil proceedings, let alone for anything that he does outside court in advising about litigation, whethercontemplated or pending, or in settling documents for use in litigation.

Page 12

There are, however, two additional grounds referred to in some of the speeches in Rondel v Worsley whichcan be used to supplement those reasons so far as they protect a barrister from liability in respect of the wayin which he has conducted proceedings in court, including in this expression interlocutory proceedings beforethe master or in chambers. Save to a very limited extent, however, neither of them would apply to work doneout of court.

The first is that the barrister's immunity from liability for what he says and does in court is part of the generalimmunity from civil liability which attaches to all persons in respect of their participation in proceedings beforea court of justice, judges, court officials, witnesses, parties, counsel and solicitors alike. The immunity isbased on public policy, designed, as was said by Lord Morris of Borth-y-Gest ([1967] 3 All ER 993 at 1013,[1969] 1 AC 191 at 251), to ensure that trials are conducted without avoidable stress and tensions of alarmand fear in those who have a part to play in them. As was pointed out by Starke J in Cabassi v Vila ((1940)64 CLR 130 at 141), a case in the High Court of Australia: 'The law protects witnesses and others, not fortheir benefit, but for a higher interest, namely, the advancement of public justice.' The courts have beenvigilant to prevent this immunity from indirect as well as direct attack, for instance by suing witnesses fordamages for giving perjured evidence or for conspiracy to give false evidence: see Marrinan v Vibart.

In Watson v M'Ewan this House held that in the case of witnesses the protection extended not only to theevidence that they give in court but to statements made by the witness to the client and to the solicitor inpreparing the witness's proof for the trial, since, unless these statements were protected, the protection towhich the witness would be entitled at the trial could be circumvented.

The second reason is also based on the need to maintain the integrity of public justice. An action fornegligence against a barrister for the way in which he has conducted a case in court is founded on thesupposition that his lack of skill or care has resulted in the court having reached a decision that was notmerely adverse to his client as to liability or quantum of damages but was wrong in being adverse and inconsequence was unjust, for otherwise no damage could be shown to have resulted from the barrister's actor omission of which complaint is made. The client cannot be heard to complain that the barrister's lack ofskill or care prevented him from obtaining a wrong decision in his favour from a

[1978] 3 All ER 1033 at 1045

court of justice. So he must prove that if the action had been conducted competently by his counsel he wouldhave succeeded instead of failed.

Under the English system of administration of justice, the appropriate method of correcting a wrong decisionof a court of justice reached after a contested hearing is by appeal against the judgment to a superior court.This is not based solely on technical doctrines of res judicata but on principles of public policy, which alsodiscourage collateral attack on the correctness of a subsisting judgment of a court of trial on a contestedissue by retrial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction. Yet a retrialof any issue decided against a barrister's client in favour of an adverse party in the action in respect of whichallegations of negligent conduct by the barrister are made would be an indirect consequence of entertainingsuch an action.

The retrial of the issue in the previous action, if it depended on oral evidence, would have to be undertakende novo. This would involve calling anew after a lapse of time witnesses who had been called at the previoustrial and eliciting their evidence before a different judge by questions in examination and cross-examinationthat were not the same as those that had been put to them at the previous trial. The circumstances in whichthe barrister had made decisions as to the way in which he would conduct the previous trial, and the materialon which those decisions were based, could not be reproduced in the retrial; and the initial question in theaction for negligence, namely whether it has been established that the decision adverse to the client reachedby the court in the previous trial was wrong, would become hopelessly entangled with the second question:whether it has been established that, notwithstanding the differences in the circumstances in which the

Page 13

previous trial was conducted, it was the negligent act or omission of the barrister in the conduct of his client'scase that caused the wrong decision by the court and not any other of those differences.

My Lords, it seems to me that to require a court of co-ordinate jurisdiction to try the question whether anothercourt reached a wrong decision and, if so, to enquire into the causes of its doing so is calculated to bring theadministration of justice into disrepute. Parliament indeed itself stepped in to prevent a similar abuse of thesystem of justice by convicted criminals in bringing civil actions for libel against those who described them ashaving been guilty of the crimes of which they had been convicted: see the Civil Evidence Act 1968, s 13. Aconsequence of the decision of this House in Rondel v Worsley was to prevent its happening in actions fornegligence against barristers.

A similar objection, it may be mentioned, would not apply in cases where an action has been dismissed orjudgment entered without a contested hearing, and there is no possibility of restoring the action andproceeding to a trial. If the dismissal or the entry or judgment was a consequence of the negligence of thelegal advisers of a party to the action, a claim in negligence against the legal advisers at fault does notinvolve any allegation that the order of the court which dismissed the action or entered judgment was wrong.

I find it an unsatisfactory feature of the instant appeal, which has called for a re-examination of the speechesin Rondel v Worsley in the light of the subsequent development of the law of negligence by later decisions ofthis House, that your Lordships have not had the benefit of any argument from counsel in support of a moreradical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligenceeven for what he says or does in court ought no longer to be upheld. Counsel cannot be blamed for this. Theparties whom they represent are solicitors and a barrister respectively. It is not to their interest as membersof either branch of the legal profession to argue that this immunity no longer exists. Nevertheless, despitethis handicap, I have reached the clear conclusion that these two additional grounds of public interest which Ihave just discussed, when taken with those reasons on which greater stress had been placed in most of thespeeches in Rondel v Worsley, suffice to justify your Lordships in accepting as a premise for the purpose ofdeciding the instant appeal that the decision of this House in Rondel v Worsley upholding such immunity isstill good law.

[1978] 3 All ER 1033 at 1046

The two additional grounds of public policy for granting a barrister immunity for what he does in court applywith equal force to what a solicitor does when acting as advocate in those courts in which solicitors haverights of audience; but subject to what is said below neither of them applies to what a barrister does outsidecourt in advising about litigation or settling documents for use in litigation. Without the support of thoseadditional grounds of public interest, as I have already indicated, I can find no sufficient reason for extendingthe immunity to anything that a barrister does out of court, save for a limited exception analogous to theextension of a witness's protection in respect of evidence which he gives in court to statements made by himto the client and his solicitor for the purpose of preparing the witness's proof for trial. The extent of thisexception was in my view well expressed by the President of the Court of Appeal of New Zealand (where theprofession is a fused one) in Rees v Sinclair:

'Each piece of before-trial work should ... be tested against the one rule; that the protection exists only where theparticular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be apreliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection shouldnot be given any wider application than is absolutely necessary in the interests of the administration of justice ... '

So for instance in the English system of a divided profession where the practice is for the barrister to adviseon evidence at some stage before the trial his protection from liability for negligence in the conduct of thecase at trial is not to be circumvented by charging him with negligence in having previously advised thecourse of conduct at the hearing that was subsequently carried out.

Page 14

It would not be wise to attempt a catalogue of before-trial work which would fall within this limited extensionof the immunity of an advocate from liability for the way in which he conducts a case in court.

The work which the barrister in the instant case is charged with having done negligently, viz in advising as towho was to be a party to an action and settling pleadings in accordance with that advice, was all done out ofcourt. In my view, it manifestly falls outside the limited extension of the immunity which I have just referred to.

It follows that in my view the third party proceedings ought not to have been struck out on the grounds statedin the judgments in the Court of Appeal. Whatever other grounds there might have been for doing so havenot been relied on by the barrister. So, the consequence must be that the order of the Court of Appeal shouldbe reversed, and the appeal allowed.

It should not be thought, however, that I am assenting to the proposition that the facts stated in the claim inthe third party proceedings disclose a reasonable cause of action by the solicitors against the barrister. Thatis a matter that will fall to be decided at the trial, if there is one.

I would accordingly allow this appeal.

LORD SALMON.

My Lords, this appeal raises a point of law of great public importance, namely what is the extent of abarrister's immunity (if any) against a claim for damages for negligence in the performance of hisprofessional duties out of court. It is a pity that such an important point falls to be decided in a case such asthe present since its facts are somewhat tenuous and unsatisfactory.

On 26 March 1966 Mr Saif Ali was travelling as a passenger in a van being driven by his friend Mr Akram.The van collided with a motor car which belonged to Mr Sugden and was being driven by his wife; she wastaking their children to school. As a result of the accident (i) Mrs Sugden was prosecuted in October 1966 fordriving without due care and attention, and she pleaded guilty to that offence, and (ii) Mr Ali and Mr Akramsuffered serious injuries and were away from work for many months. Mr Ali had an unanswerable

[1978] 3 All ER 1033 at 1047

claim for substantial damages, certainly against Mrs Sugden, probably against Mr Sugden and possiblyagainst Mr Akram.

Soon after the accident, Mr Ali and Mr Akram consulted a firm of solicitors. In October 1968 those solicitorslaid the facts which I have recited before a barrister and instructed him to settle proceedings and to advise.The barrister promptly settled a writ and a statement of claim making Mr Ali and Mr Akram joint plaintiffs andMr Sugden the sole defendant. The solicitors issued the writ on 14 November 1968, but did not serve the writor the statement of claim until 29 August 1969. In the meantime, but well before 26 March 1969(when theperiod of limitation expired) the solicitors informed the barrister, amongst other things, that the solicitor actingfor Mr Sugden's insurers apparently in the course of negotiation had stated that Mr Akram should be joinedas a defendant and that the allegation in the statement of claim that Mrs Sugden had been driving as herhusband's agent might be put in issue. The solicitors asked the barrister for his advice. The barrister thenadvised that there was no foundation for any challenge of the allegation that Mrs Sugden was driving as herhusband's agent and that accordingly no amendment to the statement of claim would be worth while. Inaccordance with that advice, the statement of claim was not amended by adding either Mrs Sugden or MrAkram as a defendant.

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The barrister's advice not to join Mrs Sugden and Mr Akram as defendants and his failure to do so is thenegligence which is alleged against him in circumstances to which I shall presently refer.

In November 1969 the barrister advised Mr Ali that he should be separately represented, and Mr Aliinstructed new solicitors and a new barrister to act for him.

Mr Sugden's original defence, served on 16 October 1969, denied that his wife had been driving as his agentat the time of the accident. On 24 June 1971 an amended defence was served, withdrawing the denial andadmitting that Mrs Sugden had been driving as her husband's agent.

On 21 January 1972 a consent order was made giving leave to Mr Sugden to re-amend his defence bywithdrawing the admission made in the amended defence and reverting to the stance he had taken in theoriginal defence. The re-amended defence was duly served on 24 January 1972. It seems strange to me thatMr Ali's then solicitors should have consented to the order allowing the amended defence admitting MrsSugden's agency to be re-amended by denying her agency. With her agency admitted, and Mrs Sugdenhaving pleaded guilty to driving without due care and attention, Mr Ali must have succeeded in his actionagainst Mr Sugden. It was particularly important for him that he should do so as it was then years too late forMrs Sugden or Mr Akram to be joined as defendants.

On 22 April 1974 Mr Ali's then solicitors served notice of the discontinuance of Mr Ali's action against MrSugden. We have been told from the Bar that the notice of discontinuance was served on the advice ofleading counsel. It is possible that this advice was founded on the decision of your Lordships' House inMorgans v Launchbury. In that case Mr Morgans had left his wife at home for the evening and at 10.40 pm,when the accident occurred, he was in her car on what has been described as a 'pub crawl' which had thenbeen going on for about four hours. This House decided that, in these circumstances, it was impossible thathe was using the car on behalf of his wife or for any purpose of hers; and that accordingly his wife was notresponsible for the negligent driving of her car. The crucial difference between the relevant facts in that caseand those in Mr Ali's case is surely obvious.

The present appeal concerns a simple running down action in which Mr Ali, if properly advised, must haverecovered judgment, or settled his claim, for substantial damages against Mr Sugden, Mrs Sugden and MrAkram or one or more of them. As it is, after inordinate delays, while he had left himself in the hands of hislawyers and followed their advice for about eight years, he now finds himself barred in law from taking hiscase to court against any of the defendants whose negligence caused him damage, and accordingly he isdeprived of any of the damages to which he was clearly entitled.

[1978] 3 All ER 1033 at 1048

It would, in my opinion, be a shocking reflection on the common law if, in the melancholy circumstances Ihave recited, Mr Ali has no remedy against any of his advisers who are responsible for his present situation.It may be that the solicitors, having accurately instructed counsel about the facts, cannot be held to benegligent for having acted in accordance with counsel's advice. I cannot, however, find any reason orprinciple or sound authority to justify counsel's immunity from being sued for damages by clients who havesuffered loss as a result of counsel's negligent advice. I have no doubt that, for the reasons I shall presentlyexplain, the common law does give Mr Ali a remedy against his advisers, whether solicitors or counsel,whose advice negligently caused his loss.

In September 1974 Mr Ali brought an action against his original solicitors for damages for negligentlyadvising him that neither Mrs Sugden nor Mr Akram ought to be added as a defendant, and for negligentlyfailing to make either of them a defendant. No claim for damages for negligence was made against thesolicitor who consented to the order giving leave to Mr Sugden to re-amend his defence and who laterdiscontinued the action against Mr Sugden; nor was any claim made against leading counsel who advised

Page 16

that the action should be discontinued.

The original solicitors entered a defence denying negligence to the claim against them and issued third partyproceedings claiming an indemnity against the barrister who advised them in 1968, mainly on the ground thathe had negligently advised that neither Mrs Sugden nor Mr Akram should be joined as a defendant. Mr Alithen joined the barrister as a defendant and claimed damages for negligence against him. The barristerapplied to have the third party claim against him struck out on the grounds that as a barrister he was immunefrom the claim in negligence made against him in the third party proceedings. The district registrar struck outthe third party claim but Kerr J restored it. The Court of Appeal allowed the appeal from Kerr J's order andordered that the third party proceedings should be struck out on the ground that the barrister was immunefrom any such claim. The present appellants now appeal from that decision to your Lordships' House.

I hope that nothing in this speech will leave an impression that I hold a view, one way or another, as towhether the barrister who advised in 1968 was negligent. I have certainly formed no view on this issue; it isan issue which, if this appeal is allowed and the action is fought, will have to be decided by the judge whohears the evidence. It has, in my opinion, been rightly conceded at the Bar that, as the facts alleged in thethird party claim are capable of constituting negligence, the only issue before this House is whether or notthe barrister is immune from the claim made against him.

A great deal of reliance has been placed by both sides on Rondel v Worsley. It is, I think, important toremember that this authority decided only one point, albeit a point of great importance, namely that abarrister, like a judge, juryman and witness, is immune from being sued in respect of anything he says ordoes or omits to say or do in the course of performing his role in court. This was the first occasion when thispoint had come before your Lordships' House for decision but there was much long established and powerfulauthority to support the decision at which this House arrived: see for example Swinfen v Lord Chelmsfordand Kennedy v Brown. Each of their Lordships fully explained why public policy required the immunity whichthey proclaimed in respect of anything said or done in court. With respect, I entirely agree with all that wassaid on that point in this House; and it is unnecessary for me to repeat anything I said when Rondel vWorsley ([1966] 3 All ER 657 at 674-676, [1967] 1 QB 443 at 516-520) was heard in the Court of Appeal. Iwould only add that, in my view, a solicitor acting as an advocate in court enjoys exactly the same immunityas a barrister.

The decision in Rondel v Worsley is, however, almost as irrelevant to the present appeal as the questionwhich this appeal raises was irrelevant in Rondel v Worsley. In that case, Mr

[1978] 3 All ER 1033 at 1049

Rondel brought an action for damages for negligence against a barrister, Mr Worsley, who had defendedhim, on a dock brief, for causing bodily harm with intent to do so. Mr Worsley applied to have the claim struckout. When this application came before the judge in chambers, the plaintiff admitted inflicting the shockinginjuries in respect of which he had been convicted. His case was that he had inflicted them in self-defence.His only real complaint against his counsel was that he had not cross-examined the Crown witnesses toshow that the plaintiff had inflicted those injuries with his teeth and bare hands rather than with a knife. Theplaintiff also admitted to the judge in chambers that he was not alleging that had counsel cross-examined thewitnesses as he had wished, he would have had any chance of being acquitted. It followed from thatadmission that the plaintiff had suffered no damage from the line of cross-examination which counsel hadpursued. Since the claim by Mr Rondel against his counsel was based on negligence and not on contract,and proof of damage is an essential ingredient of the tort of negligence, Mr Rondel's claim was clearlyunmaintainable. The judge might well have dismissed it briefly as disclosing no cause of action and as anabuse of the process of the court. He, however, took the view that the case involved an important point oflaw; and he delivered a long and learned judgment in open court ([1966] 1 All ER 467, [1967] 1 QB 443 at452) reviewing all the authorities back to the Year Books and explaining why public policy demanded thatcounsel and also solicitors should enjoy complete immunity from an action alleging negligence in respect of

Page 17

their conduct of a case in court, a conclusion with which I agree. I would point out that the judge, in my view,quite rightly confined himself to immunity in respect of what was said or done by advocates in court; he didnot express any views as to whether such immunity could extend to paperwork done by counsel out of court,and for the very good reason that this issue was irrelevant to the case he was deciding.

When Rondel v Worsley ([1966] 3 All ER 657, [1967] 1 QB 443 at 471) reached the Court of Appeal, thatcourt unanimously decided that a barrister was in law immune against any claim in negligence relating towhat he had said or done in court. The majority, however, considered that the court should express its viewon the issue which seemed to the judge in chambers and to the minority in the Court of Appeal to beirrelevant. The majority expressed the view very clearly that a barrister enjoyed a blanket immunity in respectof any work which he did out of court: see Lord Denning MR ([1966] 3 All ER 657 at 667-668, [1967] 1 QB443 at 506) and Danckwerts LJ ([1966] 3 All ER 657 at 671-672, [1967] 1 QB 443 at 512-513). I entirelydisagreed and still disagree on that point. I need not repeat any of the reasons which I gave for dissenting,which are fully set out in the reports ([1966] 3 All ER 657 at 677-680, [1967] 1 QB 443 at 521-526).

I recognise that it is most unpleasant for a barrister to have to fight an allegation that he has been negligent,but such an experience is no more unpleasant for a barrister than it is for a physician or a surgeon, anarchitect or an accountant. I cannot understand how there can be any justification for the law affording ablanket immunity to a barrister in respect of all work done out of court when it affords none to the members ofany other profession; nor do I believe that the Bar would wish to claim such an immunity.

When Rondel v Worsley came to this House, this House faced a dilemma. The Law Lords did not agree withthe majority of the Court of Appeal which had decided, obiter, that a barrister enjoyed a blanket immunityagainst any claim in negligence in respect of all paperwork. It was indubitably plain to this House that theobiter dictum of the majority of the Court of Appeal, although not binding, would carry great weight. Indeed itwas extremely doubtful that any judge of first instance or any division of the Court of Appeal would departfrom that obiter dictum unless this House disagreed with it. Accordingly, this House had no real choice but todeal with it. And this they did. By a majority of four to one the Law Lords rejected the proposition that the Barenjoyed the blanket immunity

[1978] 3 All ER 1033 at 1050

proclaimed by the majority of the Court of Appeal in respect of all paper work done by a barrister. They allconsidered that some paperwork should be covered by immunity, but they differed from each other as towhere the line ought to be drawn.

In the present case, the question for decision is: on what side of the line does the advice fall which was givenby the barrister against whom the third party proceedings have been brought?

It must be remembered that although all the four differing majority opinions in Rondel v Worsley carry greatweight and command profound respect, each of them is obiter. It should also be remembered that, during theperiod of almost 11 years since Rondel v Worsley was decided, there has been a strong tendency for yourLordships' House to extend the ambit of the duty of care in negligence cases and to cut down the immunityenjoyed by professional men from being sued in actions for negligence. I shall refer only to the latter class ofcase.

It used to be thought that an architect employed by a building owner to supervise the erection of a buildingand to certify the sums due to the contractor, enjoyed an immunity against being sued for negligencehowever negligent he may have been in issuing his certificates; this immunity strangely enough was basedon the fact that he owed a duty to the building owner and to the contractor to act impartially: see Chambers vGoldthorpe . That authority was however overruled and the immunity of architects was abolished by theunanimous decision of your Lordships' House in Sutcliffe v Thackrah.

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Similarly, it was formerly held that if an accountant was called in to assess the value of shares knowing thatthe price which A might pay B, or B might accept for them, was to be the price at which the accountantvalued them then however negligently he may have conducted his valuation, he was immune from beingsued either by A or B in respect of his negligence: see Finnegan v Allen. That supposed immunity accordedto accountants was swept away by the unanimous decision of your Lordships' House in Arenson v Casson,Beckman, Rutley & Co.

There are several excellent reasons to which I have already referred and each of which is cogently set out bythis House in Rondel v Worsley explaining why public policy demands that a barrister, in common with ajudge, juryman, or witness, shall be immune against being sued in respect of anything he does or says incourt. I entirely agree with that immunity for the reasons I gave when Rondel v Worsley was before the Courtof Appeal, and I shall not repeat any of them. I cannot, however, understand how any aspect of public policycould possible confer immunity on a barrister in a case such as the present should he negligently fail to jointhe correct persons or to advise that they should be joined as defendants, or for that matter should benegligently advise that the action must be discontinued. It seems plain to me that there could be nopossibility of a conflict between his duty to advise his client with reasonable care and skill and his duty to thepublic and to the courts. I do not see how public policy can come into this picture. This is certainly not a casewhere it could possibly be regarded as oppressive to join Mrs Sugden as a defendant. After all, she hadpleaded guilty to driving without due care and attention at the material time. Nor do I understand how anyaspect of public policy could have required counsel to advise that the action against Mr Sugden should bediscontinued. Once it is clear that the circumstances are such that no question of public policy is involved,the prospects of immunity for a barrister against being sued for negligently advising his client vanish into thinair, together with the ghosts of all the excuses for such immunity which were thought to exist in the past.

[1978] 3 All ER 1033 at 1051

The theory that because the barrister had no contractual relationship with his client he could not be liable fornegligent advice causing financial loss vanished with Hedley Byrne & Co Ltd v Heller & Partners Ltd whichoverruled Candler v Crane, Christmas & Co.

The other theories supporting a barrister's supposed blanket immunity from liability for negligence in respectof any paperwork cannot survive in the realistic atmosphere of the late 20th century. These were based onthe fact that (i) a barrister cannot sue his client for his fees and (ii) he is obliged to accept briefs relating to afield of law in which he normally practises, providing he is offered a proper fee.

Although a barrister cannot sue for his fees, he can demand that his fees be paid before he appears in court.If the barrister does not demand his fees in advance and the lay client does not pay them after the barrister'sservices have been rendered, the solicitor can sue the lay client for the barrister's fees. It is true that if thesolicitor recovers the fees from the lay client and does not pay them over to the barrister, the barrister cannotsue the solicitor; but he can report him to the Law Society, and this as every lawyer knows would be likely tocost the solicitor far more than the fees he retains. There is no reason to suppose that the Bar incurs morebad debts than any other profession.

The rule that a barrister must accept a brief in the circumstances which I have described was made toensure that every accused person or litigant could be represented in court by counsel. I do not, however,know of any firm rule which obliges counsel to accept instructions to advise or to draft pleadings.

Unless what seems to me to be an untenable proposition is accepted, namely that public policy alwaysrequires that a barrister should be immune from liability for his neglect or incompetence in respect of allpaperwork, he is rightly in no better position than any other professional man who is sued for negligence.The normal rule applied by the law is that, if anyone holding himself out as possessing reasonablecompetence in his avocation undertakes to advise or to settle a document, he owes a duty to advise or settlethe document with reasonable competence and care. This duty is owed to anyone he should foresee may

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suffer loss if the duty is breached.

If in breach of that duty he fails to exercise reasonable competence or care and as a result the person towhom the duty was owed suffers damage, he is liable to compensate that person for the damage he hassuffered. The law requires the damage to be borne by the person whose breach of duty has caused it, ratherthan by the innocent person who has suffered it.

I am far from saying that if the advice or document turns out to be wrong, it necessarily follows that he whogave or drew it is liable for the loss caused by its imperfection. The barrister is under no duty to be right; he isonly under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balancedproblems. Diametrically opposite views may and not infrequently are taken by barristers and indeed byjudges, each of whom has exercised reasonable, and sometimes far more than reasonable, care andcompetence. The fact that one of them turns out to be wrong certainly does not mean that he has beennegligent. In my opinion, however, it can only be in the rarest of cases that the law confers any immunity ona barrister against a claim for negligence in respect of any work he has done out of court; and this case iscertainly not amongst them.

I ought to add that when Rondel v Worsley came to the Court of Appeal, I felt bound for the reasons I havegiven to deal with points which I considered to be wholly irrelevant to anything we had to decide. I may haveput the case too high if I used words which might give the impression that counsel's immunity alwaysextended to the drafting of pleadings and to advising on evidence. I should have said that the immunity mightsometimes extend to drafting pleadings and advising on evidence. If in an advice on evidence counsel statesthat he will not call Y as a witness whom he believes his client wishes to call solely to prejudice his opponent,counsel is immune on grounds of public policy from being sued

[1978] 3 All ER 1033 at 1052

in negligence by his client for advising that Y must not be called or for refusing to call him. In such a case theadvice would be so closely connected with the conduct of the case in court that it should be covered by thesame immunity. It would be absurd if counsel who is immune from an action in negligence for refusing incourt to call a witness could be sued in negligence for advising out of court that the witness should not becalled. If he could be sued for giving such advice it would make a travesty of the general immunity from suitfor anything said or done in court and it is well settled that any device to circumvent this immunity cannotsucceed: see eg Marrinan v Vibart.

I think that the passage from the judgment of McCarthy P in Rees v Sinclair ([1974] 1 NZLR 180 at 187),cited in the Court of Appeal, relates to facts similar to those I have just postulated. I think that McCarthy Pwould be astonished to hear his judgment cited in support of the decision made by the Court of Appeal in thecircumstances of the present case. The facts in Rees v Sinclair do not emerge from the report of that case inthe New Zealand Court of Appeal. The report, however, at first instance throws light on those facts. Itappears that the plaintiff living apart from his wife under a deed of separation had paid her maintenancesince 1962 and had entered into an agreement in 1964 to pay her future maintenance; he also abandonedhis divorce petition. The defendant who was a solicitor and barrister acted for the plaintiff in proceedings inwhich the plaintiff claimed a variation of the agreed maintenance and his wife asked for an order forpermanent maintenance. The plaintiff wished to support his case by alleging wrongful conduct by his wifeprior to 1962. The defendant apparently considered that there was no justification for making theseallegations and no evidence to support them. He accordingly advised that they should not be made and herefused to put them forward on the plainiff's behalf. The defendant acting in his capacity as counsel, orindeed as solicitor, clearly owed a duty to the court on grounds of public policy not to put those allegationsforward, taking the view that he did about them. The plaintiff sued him for negligence and the court heldrightly that the defendant was immune from such proceedings. There is all the difference in the worldbetween Rees v Sinclair and the present case. I respectfully agree with McCarthy P when he says ([1974] 1NZLR 180 at 187):

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'... the protection exists only where the particular [paper] work is so intimately connected with the conduct of the causein Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when itcomes to a hearing.'

The 'intimate connection' to which McCarthy P referred undoubtedly existed in Rees v Sinclair and in thecase I have just postulated. In my opinion there is no such connection between the advice given in thepresent case and conduct of a case in court. The advice given made it impossible for the plaintiff'sunanswerable case to be heard in court. It was not even remotely connected with counsel's duty to the courtor with public policy.

My Lords, for the reasons I have stated I would allow the appeal.

LORD RUSSELL OF KILLOWEN.

My Lords, in arriving at a conclusion in this appeal I have striven, I hope successfully, to avoid beinginfluenced by the fact that I find it difficult to see where the barrister erred in selecting as defendant theowner of the car, whose wife was driving it (negligently) for the purpose of taking their children to school.However unsatisfactory it may be, we are obliged to assume for the purposes of this appeal that the barristerwas negligent in the respects summarised by my noble and learned friend, Lord Wilberforce. Should, on thatassumption, the third party notice be struck out as disclosing no cause of action against the barristerrecognised by the law?

[1978] 3 All ER 1033 at 1053

The history relating to claims for negligence by professional people, and barristers in particular, has beenvery fully canvassed in your Lordships' speeches, as has also the tendency of recent years for decisions ofthe courts to stress responsibility in all fields of those guilty of errors of commission or omission towardsothers to whom harm has been caused by such errors.

For myself, my Lords, I accept without qualification the decision of this House in Rondel v Worsley. Thenegligence there alleged was the method of conduct of a criminal defence in court. I cannot find that there isany sound distinction between that and the conduct of civil proceedings in court.

It is to be observed that nowhere, so far as I am aware, has it been suggested that a barrister in respect ofhis conduct of a case in court should have a special immunity from suit for negligence because what he doesin court is (so to speak) in the heat of battle, when he must make a decision in the obscurity of dust andsmoke. Nor do I consider that such immunity is rightly connected with a quite different (as it seems to me)immunity of judges, witnesses and jurors.

What then is the justification for immunity from claims for negligence that has so far been established? It liesin my opinion in the public duty that rests on the Bar in particular to participate in and contribute to theorderly, proper and expeditious trial of causes in our courts. In the exercise of such a duty it appears to methat it is highly undesirable and against public policy that a barrister in deciding in court on a particular courseof action, or attitude, should be in a position of having to wonder whether a different course of action, orattitude, would not be more likely to avoid a claim that he was negligent. I take a simple illustration. It isdesirable in a civil case to prove a fact. Five people say that they can testify to it. Counsel decides to call two,saving the time of the court. Those two turn out to be not good witnesses, or are not in the end accepted to

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be such by the judge. Is the barrister to be subjected to a claim in negligence by his disappointed client forhis attempt to facilitate the administration of justice? I consistently stress the word claim. He may or may nothave been negligent in not calling the other three witnesses. It is his vulnerability to a claim that may interferewith his duty.

The example which I have given is of something done (or rather not done) in the course of the trial of a civilaction inside the court. I cannot accept that there is a universally acceptable distinction between what is done(or omitted) in the court in the presence of the judge and what is done (or omitted) outside court or beforetrial. Preliminary hearings before a master may be regarded as on the same basis as the trial But what ofactions (or omissions) of counsel in the course of steps taken on which the trial (if any) is to be based? I donot accept the suggestion that the calm atmosphere of chambers in the Temple (or even Lincoln's Inn) marksa distinction: I have already remarked that the heat, dust and smoke of the battle has never been urged as aspecial ground of immunity from suit for negligence. In my opinion if a decision by counsel is arrived at, albeitnegligently, before trial which might well have been arrived at at trial, or before a master, it should not beopen to a claim for negligence, in particular, as here, a decision as to the proper party to be joined asdefendant.

I can find no justifiable line to be drawn at the door of the court, so that a claim in negligence will lie against abarrister for what he does or omits negligently short of the threshold though not if his negligent omission orcommission is over the threshold. His immunity from claims of negligence should (granted that it is to exist atall) extend to areas which affect or may affect the course of conduct of litigation, in which areas are to befound the public duty and obligation of the barrister to participate in the administration of justice. And thisshould be so even if the result of the alleged negligence is that litigation does not in fact come about. Adecision which shapes, or may shape, the course of a trial should be within the umbrella (or blanket) offreedom from claims whether it is arrived at before trial or during it. This must include advice on settlement,advice on evidence, advice on parties, to list only examples. A barrister is offered an opportunity in thecourse

[1978] 3 All ER 1033 at 1054

of a trial to add a party; he misunderstands the case and allegedly negligently declines the opportunity; as Iunderstand Rondel v Worsley he is immune from the claim. Is there any reason for not holding him alsoimmune from a claim for not originally adding that party? I think not.

My Lords, there may be much to be said for denying immunity from claims for negligence by a barrister in theconduct of civil litigation in court. But while that immunity stands, as I think is involved in the decision of thisHouse in Rondel v Worsley, I see no escape from the extension to pre-trial alleged negligence so stronglysupported (obiter) in that case.

I find myself in agreement with the views expressed in his speech (which I have had the advantage of seeingin draft) of my noble and learned friend, Lord Keith of Kinkel, and, finding myself in concurrence with them, Iwould dismiss this appeal.

LORD KEITH OF KINKEL.

My Lords, the facts of this case and the circumstances under which it comes before your Lordships' Househave been narrated in the speech of my noble and learned friend, Lord Wilberforce, whose account Igratefully adopt.

According to the headnote in the report of Rondel v Worsley this House held in that case that a barrister was

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immune from an action for negligence at the suit of a client in respect of his conduct and management of acase in court and the preliminary work connected therewith such as the drawing of pleadings. A majority ofthe House expressed the view that the immunity does not extend to matters unconnected with cases in court.

Rondel v Worsley was on its facts concerned only with alleged negligence in connection with a barrister'swork in court in the course of a criminal trial, so all that was said in their Lordships' speeches about otheraspects of a barrister's work may strictly be described as obiter dicta. But their Lordships were clearlyconcerned to review, in the light of the authorities, the law as to the scope of a barrister's immunity from suitsfor negligence in connection with all aspects of his work, and what they said about those activities which arecarried on elsewhere than in the actual courtroom in the course of a trial was carefully considered.Accordingly the views so expressed should not, in my opinion, lightly be departed from.

In the present appeal it was not argued that no aspect of a barrister's work attracted immunity, but it wascontended that the immunity was strictly limited to work done actually in court in the conduct of a cause.

It is apparent that in the opinion of at least four of their Lorships in Rondel v Worsley the scope of theimmunity is not so limited. The position of Lord Morris of Borth-y-Gest in this respect is not entirely clear. Therelevant passages from the speeches have been quoted by my noble and learned friend, Lord Wilberforce,and I need not repeat them.

The principle on which the decision in Rondel v Worsley proceeded was that of public interest. The principalaspect was the consideration that the proper administration of justice had better prospects of being achievedif barristers, in their conduct of litigation, were not inhibited in any decision they might make by fear of beingsued for negligence by a disappointed client. Such fear, so it was considered, might detract from the degreeof attention given by the barrister to his duty to the court and to the administration of justice generally insituations where that duty conflicted with the personal interests of his client. In my view that consideration isvalid and has a sound basis. Further, I have no doubt that its application extends further than the actualconduct of a case in court. A barrister's duty to the court and the due administration of justice has to be keptfirmly in view when he directs his mind to whether an action should be brought and against what parties, towhether an action should be settled or abandoned and to advising on evidence and on the discovery ofdocuments. It is true that decisions on such matters normally are taken in

[1978] 3 All ER 1033 at 1055

situations offering more opportunity for reflection than is present in the face of the court in the course of atrial. But that might well mean that the decision is less instinctively correct in the light of the barrister's duty tothe court and more likely to be influenced by thoughts of the action which the client, in the absence of animmunity, might take.

I am therefore of opinion that the grounds of this aspect of public interest extend beyond the actual conductof a case in court and are applicable to all stages of a barrister's work in connection with litigation, whetherpending or only in contemplation.

The second aspect of public interest considered relevant in Rondel v Worsley was the undesirability ofrelitigating between barrister and client issues which had ex hypothesi been decided adversely to the client inprevious litigation. Here again I regard as convincing the reasons which led their Lordships to rely on thisground for affirming the existence of immunity. It was argued that this ground could not apply where as aresult of a barrister's negligence the client's claim had never been litigated at all. The answer to the argumentis, in my view, that the purpose of the indemnity is to exclude in the public interest the bringing of actions of acertain category. The matter must rest on principle, and it is not critical that the relevant factors of publicinterest may apply less strongly on the facts to certain cases in the category covered by the principle thanthey do to others.

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In Rondel v Worsley there also entered to some extent into the grounds of decision stated by certain of theirLordships the rule that a barrister may not decline to act for a particular client in a field in which he normallypractises, if he is disengaged and is tendered a reasonable fee. I do not myself regard this aspect as havingmuch importance from the point of view of public interest, as I do not consider that if barristers were liable tobe sued for negligence this would, having regard to the standards of the profession, be likely to result in anyperson being deprived of competent representation in any litigation.

In Rees v Sinclair the New Zealand Court of Appeal accepted that a limit should be placed on a barrister'simmunity from actions for negligence in respect of work done in connection with litigation. The nature of thelimitation was thus expressed by McCarthy P ([1974] 1 NZLR 180 at 187):

'But I cannot narrow the protection to what is done in Count: it must be wider than that and include some pre-trial work.Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only wherethe particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be apreliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection shouldnot be given any wider application than is absolutely necessary in the interests of the administration of justice, and thatis why I would not be prepared to include anything that does not come within the test I have stated.'

In my opinion the restriction thus expressed is not consistent with the principal ground of the decision inRondel v Worsley, namely that immunity should apply to all situations where there is the possibility of conflictbetween the barrister's duty to the court and to the proper administration of justice and the personal interestsof his client. That possibility was considered by the majority at least in Rondel v Worsley to exist in relation toall aspects of a barrister's work in connection with litigation, and I respectfully agree with them. I am unableto perceive any distinction valid for the purposes of the relevant principle between work in connection withlitigation which affects the way the case is conducted when it comes to a hearing and that which does not.Further, I consider that it would be undesirable, and of marginal utility to disappointed litigants, to open thedoor to enquiry in individual cases whether or not the distinction is established. To do so would go somelength towards defeating the purpose of the immunity, which is to enable barristers to apply their minds tolitigation work undistracted by considerations of whether or not they might be sued for negligence. If theconsiderations of public interest held valid in Rondel v Worsley are to be accepted as being so, as in myopinion they should be, then they should

[1978] 3 All ER 1033 at 1056

in my view be applied so as to achieve their purpose as effectively as possible. Further, I think there is meritin the maintenance of a rule which is relatively simple and easy to apply. That immunity extends to all of abarrister's work in connection with litigation is such a rule. The suggested restriction of the immunity wouldpresumably exclude from its scope all cases relating to contemplated litigation which did not actually reachthe stage of a hearing in court, and all litigation settled, compromised or abandoned. In other cases thesuggested restriction would, in my opinion, prove difficult to apply in practice and would almost inevitablyrequire enquiry into the facts. It would seldom, if ever, be possible to decide the issue of immunity on anapplication for striking out. So the objective of relieving the barrister of any apprehension of contentiouslitigation regarding the conduct of his cases would not be achieved.

In the present case the negligence alleged against the third party took place in connection with his conduct oflitigation. I am of opinion that the immunity therefore applies to it.

My Lords, for these reasons I would dismiss the appeal.

Appeal allowed.

Solicitors: Allan Jay & Co agents for Sydney Mitchell & Co, Solihull (for the first appellants); Hewitt,

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Woollacott & Chown (for the barrister).

Mary Rose Plummer Barrister.

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