Professional Negligence and Liability
Chapter 15
BARRISTERS
I. INTRODUCTION
1. The scope of this chapter
15.1 When compared with the volume of claims against other professionals, claims against barristers remain relatively rare. Historically, this was because until the landmark decision of the House of Lords in Hall v. Simons 1 barristers were immune from suit for acts and omissions in court and “intimately connected” with the conduct of the case in court.2 More recently, the relatively small size of the profession, the continuing applicability of the rule against collateral attack where there is a subsisting criminal conviction3 and the fact that much of what barristers do involves an exercise of judgment4 are all factors likely to have contributed to the absence of claims. Whatever the reason, many areas of the law relating to barristers’ negligence are accordingly comparatively under-developed.5 Where there is little or no case law relating directly to barristers the cases on solicitors are likely to provide the best guidance as to the applicable law. Thus where the principles relating to solicitors and barristers are the same they are in general dealt with in Chapter 9. The exceptions are negligent advocacy and the rule against abusive collateral attack, which are dealt with in this chapter.6 15.2 The material in this chapter is relevant predominantly to claims against barristers in self-employed practice. The same principles will, however, be relevant to claims against employed and non-practising barristers in so far as such barristers may offer their services to the public.7 Save where they involve issues of professional negligence, matters of professional conduct are not dealt with.2. The barrister’s role
15.3 A barrister is an individual who has been called to the Bar by an Inn of Court and not disbarred by order of an Inn of Court.8 By virtue of rule S24 of the BSB Handbook self-employed barristers may supply legal services only if appointed by the court or instructed by a professional or licensed access client or the public access or conduct of litigation provisions apply. 15.4 In Rondel v. Worsley 9 Lord Reid noted that, in addition to the duty owed to his client, a barrister owes “an overriding duty to the court, to the standards of his profession, and to the public”.10 Lord Hoffmann in Hall v. Simons 11 described lawyers conducting litigation as having a “divided loyalty”. Thus, he said12:“They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important. Sometimes the performance of these duties to the court may annoy the client.”