Rondel v Worsley

An advocate is immune from an action by a client for professional negligence in the conduct and management of litigation. The immunity rests on public policy. It protects the advocate’s independence, preserves the overriding duty to the court and avoids collateral retrials of concluded proceedings.

The protection extends beyond statements made in court to work intimately connected with litigation, including the preparation of pleadings. It does not rest merely on a barrister’s inability to contract for or recover fees. The position of advisory and drafting work unconnected with litigation was not conclusively determined.

The appellant was convicted of causing grievous bodily harm after being represented by the respondent barrister under a dock brief. Nearly six years later, he claimed damages alleging that the respondent had negligently failed to ask questions, adduce evidence and call witnesses which the appellant desired.

The Master struck out the statement of claim and dismissed the action. Lawton J held that no action lay against a barrister for negligence in presenting a client’s case in court. The Court of Appeal dismissed the appeal. The House considered whether an advocate could be sued for negligence in conducting litigation and whether the established immunity remained justified by public policy.

1. Disposition. The House unanimously dismissed the appeal. The appellant could not maintain an action against the respondent for alleged negligence in conducting the criminal trial.
2. Immunity in litigation. Per Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Upjohn and Lord Pearson, public policy requires an advocate to be immune from a client’s action for professional negligence in the conduct and management of litigation. An advocate must exercise independent judgment about the issues, questions and evidence which should be pursued. Exposure to suit would encourage prolixity, inhibit difficult forensic decisions and impair the efficient administration of justice.
3. Duties of an advocate. Per Lord Reid, Lord Morris and Lord Upjohn, an advocate owes a duty to the client to exercise reasonable care and skill, but also owes overriding duties to the court, professional standards and the public. Counsel must not mislead the court, make unsupported allegations, suppress material which should be disclosed, or pursue irrelevant evidence merely at the client’s insistence. Immunity protects the proper discharge of these potentially conflicting duties rather than negligent advocates as a privileged class.
4. Finality and collateral proceedings. Per Lord Reid and Lord Morris, a negligence claim arising from advocacy would often require a civil court to retry concluded criminal or civil proceedings, possibly under a different standard of proof and without all affected parties. The need for finality, together with the risk of recurring litigation, strongly supported immunity.
5. Source and scope. Per Lord Reid, Lord Morris, Lord Pearce and Lord Upjohn, the immunity rests directly on public policy. It does not depend merely upon the barrister’s inability to sue for fees or absence of a contract. It covers courtroom advocacy and work sufficiently connected with litigation, including settling pleadings and preparatory decisions affecting the conduct of the case.
6. Non-litigious work. Lord Reid, Lord Morris, Lord Upjohn and Lord Pearson considered that the authorities did not justify an unrestricted immunity for advisory or drafting work unconnected with litigation. Lord Pearce would have preserved the wider existing immunity. This question was unnecessary to the decision and was left without a definitive ruling.
7. Solicitor advocates. Lord Reid, Lord Morris, Lord Pearce and Lord Upjohn considered that the same public-policy protection should apply when a solicitor performs the functions of an advocate. Lord Pearson regarded the question as raising contractual difficulties more appropriately resolved in a case where it arose for decision.

1. House of Lords: Dismissed the appeal and affirmed that the proposed negligence action could not be maintained against the barrister for his conduct of the criminal trial.
2. Court of Appeal: Lord Denning MR, Danckwerts LJ and Salmon LJ dismissed the appeal on 20 October 1966. They held that no action lay against a barrister for negligence in conducting a case.
3. High Court: Lawton J upheld the dismissal on 21 December 1965. He held that a barrister could not be sued by a client for negligence or lack of skill in presenting the client’s case in court.
4. Master: The statement of claim was struck out and the action dismissed on 17 May 1965.