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HOUSE OF LORDSRONDEL v WORSLEY [1969] 1 AC 191 22 November 1967Full textEditor’s comments in red.Policy LORD REID :… Like so many questions which raise the public interest, a decision oneway will cause hardships to individuals while a decision the other waywill involve disadvantage to the public interest. On the one hand, if theexisting rule of immunity continues there will be cases, rare though theymay be, where a client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So the issue appears to me to bewhether the abolition of the rule would probably be attended by suchdisadvantage to the public interest as to make its retention clearlyunjustifiable …Duty to the Court SALMON LJ :[In the Court of Appeal] The Bar has traditionally carried out these duties, and the confidencewhich the Bench is able to repose in the Bar fearlessly to do so is vital tothe efficient and speedy administration of justice. Otherwise the highstandard of our courts would be jeopardised. This is the real reason why public policy demands that there should be no risk of counsel beingdeflected from their duty by the fear of being harassed in the courts byevery litigant or, criminal who has lost his case or been convicted. LORD MORRIS OF BORTH-Y-GEST : … The quality of an advocate’s work would suffer if, when deciding as amatter of discretion how best to conduct a case, he was made to feel thatdivergence from any expressed wish of the client might become the basisfor a future suggestion that the success of the cause had thereby beenfrustrated. It would be a retrograde development if an advocate wereunder pressure unwarrantably to subordinate his duty to the court to hisduty to the client. While, of course, any refusal to depart at the behest of the client from accepted standards of propriety and honest advocacywould not be held to be negligence, yet if non-success in an action might be blamed upon the advocate he would often be induced, as a matter of caution, to embark on a line of questions or to call a witness or witnesses,though his own personal unfettered judgment would have led him toconsider such a course to be unwise … it would be undesirable in theinterests of the fair and efficient administration of justice to tolerate asystem under which, as a sort of by-product after the trial of an action andafter any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation.In my view, the public advantages[of the immunity]outweigh thedisadvantages. They do so overwhelmingly in respect of criminal casesand considerably so in respect of civil cases …Cab Rank rule LORD PEARCE :… It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent andreasonable and likely to succeed in their action or their defence than thosewho are unpleasant, unreasonable, disreputable, and have an apparentlyhopeless case. Yet it would be tragic if our legal system came to provideno reputable defenders, representatives or advisers for the latter. And thatwould be the inevitable result of allowing barristers to pick and choosetheir clients … Is one, then, to compel counsel to advise or to defend or conduct an action for such a person who, as anybody can see, is whollyunreasonable, has a very poor case, will assuredly blame some one other than himself for his defeat and who will, if it be open to him, sue hiscounsel in order to ventilate his grievance by a second hearing, either issuing a writ immediately after his defeat or brooding over his wrongsuntil they grow greater with the passing years and then issuing the writnearly six years later (as in the present case)? … Full textLORD REID :My Lords, in 1959 the appellant was charged at the Central CriminalCourt with causing grievous bodily harm to one Manning. He was notgiven legal aid but after the case had proceeded for some time he wasinformed that he could have a ‘dock brief’. He chose the respondent to behis counsel and, in accordance with his duty as a barrister, the respondentagreed to act for him. During an adjournment he gave to the respondenthis account of the affair. The respondent then cross-examined the Crownwitness and called the appellant and another witness. The appellant wasconvicted and it is plain that he had no real defence. But he was muchaggrieved by evidence that he had used a knife; he wanted to establishthat he had inflicted Manning’s injuries with his hands alone, or by biting, and apparently the respondent did not ask all the questions or leadall the evidence that he had suggested.In February, 1965, the appellant raised the present action. His srcinalstatement of claim, apparently prepared by himself, was barelyintelligible. In April the respondent sought an order that the statement of claim be struck out as disclosing no cause of action and also as beingirregular. In May the master ordered that the statement of claim be struck out and the action dismissed. The appellant appealed and Browne J askedthe Official Solicitor to instruct counsel to act as amici curiae.In November, 1965, Lawton, J, heard argument for five days on thequestion whether the statement of claim disclosed any cause of actionand, in a learned and elaborate judgment delivered on 21 December heheld that it did not, because a barrister cannot be sued by his client for negligence or lack of skill in presenting his client’s case in court. I shallnot deal with attempts to improve the statement of claim be amendment;and I shall not deal with the facts beyond syaing that possibly a casecould be made out to the effect that the respondent made some error of judgment - I am not in a position to express an opinion about that - butthere is nothing in the facts before us to indicate any professionalnegligence or lack of skill on his part, and nothing to indicate that theappellant would have been any better off if the respondent had acteddifferently. Leave to appeal was given and the Court of Appeal (LordDenning MR and Danckwerts and Salmon LJJ) on 20 October 1966,dismissed the appeal. Salmon LJ said ([1966] 3 All ER at p 674, letter b[1967] 1 QB at p 516), I think justly, that the appellant’s claim wasclearly as devoid of mertit as it was of any prospect of success. But inview of the importance of the question of law involved this House gaveleave to the appellant to appeal.The argument before your lordship has been directed to the generalquestion of barrister’s liability and has ranged widely. For the appellant itwas said that all other professional men, including solicitors, are liable to be sued for damages if loss is caused to their clients by their lack of professional skill or by their failure to exercise due care; so why shouldnot barristers be under the same liability? For the respondent it has beenshown that for at least two hundred years no judge or text writer hasquestioned the fact that barristers cannot be so sued, and a variety of reasons have been adduced why the present position should continue.I do not propose to examine the numerous authorities. It is, I think, clear that the existing rule was based on considerations of public policy; but public policy is not immutable and doubts appear to have arisen in manyquarters whether that rule is justifiable in present day conditions in thiscountry. So it appears to me to be proper to re-examine the whole matter.In doing so I shall confine my attention to conditions in England andScotland, between which there appears to me to be no relevant difference.I do not know enough about conditions in any other country to expressany opinion as to what public policy may there require.There is no doubt about the position and duties of a barrister or advocateappearing in court on behalf of a client. It has long been recognised thatno counsel is entitled to refuse to act in a sphere in which he practices,and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may, be, and it is essential that that dutymust continue: justice cannot be done and certainly cannot be seen to be
