(1969) 1 A.C. 191

1 A.C.
AND PRIVY COUNCIL 191
"■ [HOUSE OF LORDS]
RONDEL APPELLANT H.L.(E.)»

AND
WORSLEY RESPONDENT Jul™g27
28,29;
Barrister—Negligence—Advocate, as—Whether minister of justice— Nov.il '
Whether action for negligence will lie at suit of client—Basis of
immunity.
Barrister—Duty of court—Nature of—Whether minister of justice.
Negligence—Duty of care to whom?—Advocate—Barrister—Conduct
of case in court—Whether client may sue for negligence.
Barrister—Client—Duty to accept—Whether liable to client in
• ^ negligence.
Solicitor—Negligence—Advocate, as—Whether liable to client.
Public Policy—Administration of justice—Immunity from action for
conduct in court—Barrister sharing immunity—Whether immunity
extending to advisory work unconnected with proceedings in
court.
j) In May, 1959, the appellant was tried on charges of causing
bodily harm to one M. with intent to do so. He pleaded that
the acts (which he did not deny) were justified. His defence was
undertaken on a dock brief by the respondent, a barrister-at-law;
but he was convicted and sentenced to imprisonment, and his
application for leave to appeal, which included complaints
against his counsel, was refused.
P Nearly six years later, in February, 1965, he issued a writ
claiming " damages for professional negligence" against his
counsel, followed by a statement of claim drawn by himself
which was in all respects defective and which the master ordered
to be struck out. The appellant appealed from that order to a
judge in chambers, who after hearing argument on behalf of the
Official Solicitor as amicus curiae on the question whether an
action for negligence could lie against a barrister, and after
** giving the appellant full opportunity to amend his statement of
claim, dismissed the action, expressing the opinion that, for
reasons of public policy, an advocate, whether barrister or solici
tor, was immune from actions for negligence in and about the
conduct of a client's case in court.
On appeal: —
Held, dismissing the appeal, that a barrister was immune from
G an action for negligence at the suit of a client in respect of his
conduct and management of a cause in court and the preliminary
work connected therewith such as the drawing of pleadings.
That immunity was not based on the absence of contract between
barrister and client but on public policy and long usage in that
*Present: LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD
PEARCE, LORD UPJOHN and LORD PEARSON.
192 HOUSE OF LORDS [1969]
H. L.(E.) ( a ) t h e administration of justice required that a barrister should ^

1967 be able to carry out his duty to the court fearlessly and inde-
pendently; (b) actions for negligence against barristers would make
Rondel m e retrying 0 f the original actions inevitable and so prolong
Worsley litigation, contrary to the public interest; and (c) a barrister was
obliged to accept any client, however difficult, who sought his
services (post, pp. 230A—232c, 248E—249A, 2 7 1 D — 2 7 3 F , 2 7 6 B - E ,
281D—284C, 289F, 292C-E). B
Per Lord Upjohn: As a practical matter, I do no more than
suggest that the immunity of counsel in relation to litigation
should start at that letter before action where taxation of party
and party costs starts (post, pp. 285G—286A).
Fell v. Brown (1791) Peake 131; Swinfen v. Lord Chelms
ford (1860) 5 H. & N . 890; Kennedy v. Broun (1863) 13 C.B.N.S.
677; Munster v. Lamb (1883) 11 Q.B.D. 588, C.A.; Nocton v.
Ashburton (Lord) [1914] A.C. 932; 30 T.L.R. 602, H.L. and °
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C.
465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L. (E.)
considered.
Per Lord Reid, Lord Morris of Borth-y-Gest and Lord
Upjohn (Lord Pearson dubitante): Public policy does not require
that a barrister shall be immune from action for negligence in
relation to matters unconnected with cases in court, for if he ™
fails to exercise the ordinary care and skill that can reasonably be
expected of him, he should be and is in no better position than
any other professional man (post, pp. 23 1E—232c, 244A-C, 246C,
247C, 286A-G, 2 9 3 F — 2 9 4 B ) .
Perring v. Rebutter (1842) 2 Mood. & R. 429 not followed.
Per Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce and
Lord Upjohn: On the grounds of public interest, a solicitor E
while acting as an advocate has the same immunity from an
action for negligence as a barrister does (post, pp. 2 3 2 E - F , 2 4 3 F -
244A, 2 6 7 F , 2 8 4 D ) .
Scudder v. Prothero & Prothero, " T h e Times," March 16,
1966, doubted.
Decision of the Court of Appeal [1967] 1 Q.B. 443; [1966] 3
W.L.R. 950; [1966] 3 All E.R. 657, C.A. affirmed. F
A P P E A L from the Court of Appeal.

This was a n appeal, by leave of the House of Lords, dated
December 1, 1966, from a judgment of the Court of Appeal (Lord
Denning M.R., Danckwerts and Salmon L J J . ) , dated October 20,
1966, dismissing the appeal of the appellant, Norbert Fred Rondel, G
from a judgment of Lawton J., dated December 2 1 , 1965, dis
missing the appellant's appeal from the order of Master Lawrence
dated M a y 17, 1965, whereby the master ordered that the state
ment of claim of the appellant (plaintiff in the action) be struck
out and the appellant's action be dismissed on the grounds that
the statement of claim disclosed no cause of action. . i
1 A.C. AND PRIVY COUNCIL 193
A The question raised by this appeal was whether an action lay H. L. (E.)
against a barrister for professional negligence in respect of work 1967
done as an advocate. The following further questions were can- .Rondel
vassed in argument: (a) whether, if a barrister had immunity from wor'sley
suit for negligence in connection with work done in or about the
court room, such immunity extended to advisory work unconnected
B with proceedings in court.
(b) Whether, if a barrister had any such immunity, the
immunity was based upon public policy or the special relationship
of barrister and client; and, if so, whether and to what extent
such immunity was conferred on solicitors, at least when acting
as advocates.
C On February 15, 1965, the appellant, Norbert Fred Rondel,
issued a writ claiming " damages for professional negligence"
against the respondent, Michael Dominic Lawrence Worsley,
barrister-at-law, in respect of the respondent's conduct of the
appellant's defence on criminal charges at the Central Criminal
Court in May, 1959, when the respondent was engaged on a dock
D brief during the hearing of the charges on which the appellant
was found guilty and sentenced to 18 months' imprisonment. The
appellant delivered a statement of claim drawn by himself. On
May 17, 1965, the respondent applied to Master Lawrence in
chambers for an order, inter alia, that the statement of claim be
struck out as (i) disclosing no reasonable cause of action and (ii)
E being irregular in that it did not comply with R.S.C., Ord. 18,
rr. 6 (ii) (a) and (3), 12 and 15 (3). The master, having given the
respondent leave to amend his summons to include a prayer that
the action be dismissed with costs, ordered that the statement of
claim be struck out and the action dismissed with costs. The
appellant appealed to Browne J. in chambers. The judge ordered
F that the hearing be adjourned and heard in open court since the
appeal raised a point of general public interest, namely, whether
an action for negligence could lie against a barrister at the suit
of a client for negligence in and about the conduct of the client's
case in court; and at the request of the judge the Official Solicitor
as amicus curiae instructed counsel to bring to the attention of
Q the court all those authorities and arguments which would help in
finding out the true juridical nature of the relationship between
barrister and client in and about the barrister's conduct of the
client's case in court.
On November 15, 1965, the appellant being unable to express
himself clearly, either orally or in writing, Lawton J. gave him an
opportunity of putting his statement of claim into a more
H. L. (E.) intelligible shape than it had been when it was before the master, A
i%7 He explained to the appellant what a statement of claim should have
Rondel m it a n d invited him to redraft what he had delivered; he did so,
Worsley an<* o n November 16, 1965, handed to the judge what he said he
wanted to have treated as his statement of claim. Lawton J.,
regarding that as an amendment of what had originally been
delivered, required the appellant to remove the word "fraudu- g
lently" from the amended document, having elicited from the
appellant that he was not alleging that the respondent had acted
in any way which the court would regard as fraudulent.
The judge described the amended statement of claim as " well-
nigh unintelligible " and said that it would be unjust to the respon
dent to call on him to deliver a defence to it, and that therefore C
the amended statement of claim must be struck out as not comply
ing in essential matters with the Rules of Court and being embar
rassing both to the court and to the respondent. Nevertheless it
seemed to the judge that, if it was possible to salvage something
out of the appellant's statement of claim which would support a
cause of action, the appellant should be given yet another chance D
to get his claim in order. The judge elicited that the appellant had
four complaints against the barrister's conduct of his case in court
and considered that two of those complaints, if properly pleaded,
might be capable of disclosing a case of negligence if there was
evidence to support them and if a barrister could be sued for
negligence in and about his conduct of a client's case in court. E
The appellant refused the offer of a further adjournment to
enable him to reamend the document and elected to stand on his
amended statement of claim; a note made by junior counsel at the
time recorded that the appellant at that point told the judge that it
was no part of his case that, but for the barrister's alleged
negligence, he would have been acquitted. F
1
On December 21, 1965, Lawton J. delivered a reserved judg
ment in which he concluded that there would be no point in giving
the appellant leave to amend, and dismissed the appeal. In the
course of his judgment the judge expressed the opinion that an
action against an advocate, whether barrister or solicitor, for
negligence in and about the conduct of his client's case in court G
would not lie at the suit of the client, for any advocate appearing
for a client before a court of law had a duty to the court and was
an officer of justice, and that public policy required that he should
have such immunity.
1
[1967] 1 Q.B. 443, 452-471; [1966] 2 W.L.R. 300; [1966] 1 All E.R. 467.
H L
A The appellant, still in person, applied on January 24, 1966, for - -( E >
leave to appeal from that order to the Court of Appeal 1967
(Lord Denning M.R., Danckwerts and Salmon L.JJ.) and asked Rîidei
for leave to put in another statement of claim and to get a solicitor wor'siey
to help him with it.
Leave to appeal was given in view of the important points of
B law which had arisen on the appellant's application.2
The Court of Appeal dismissed the appeal. The appellant was
unrepresented on the appeal but his solicitor (who had been
instructed before the appeal came on for hearing) tendered to the
court a written brief of 116 pages setting out the arguments and
authorities in support of the contention that barristers were not
C immune from actions for negligence. The court received the writ
ten brief, which fact was recited in the order of the Court of
Appeal dismissing the appeal.
On the fourth day of appeal, in response to requests from the
Bench and from counsel for the respondent, a draft reamendment
of the appellant's statement of claim was prepared by the solicitor
assisting the appellant, and leave was sought to deliver it. By it the
appellant alleged, inter alia, that on May 28, 1959, he had appeared
for trial at the Central Criminal Court on charges of causing
grievous bodily harm to one Manning; that in accordance with the
practice in relation to dock briefs he had chosen the respondent
as his counsel; that in conference with the respondent he had
denied that he had attacked Manning or used a knife and had told
the respondent that he had acted in self-defence; that it was the duty
of the respondent to conduct the case in court with reasonable skill
and care: alternatively, that the respondent, having been told the
nature of the defence which the appellant wished to have advanced,
it became his duty to conduct the defence with such skill and care;
but that as a result of the respondent's conduct of the case the
appellant had been wrongly convicted of the two charges and sen
tenced to 18 months' imprisonment. Details were given of the
particular complaints, namely, failing properly or at all to examine
or re-examine a defence witness; failing properly or at all to cross-
G examine two of the prosecution witnesses as to the nature of the
wound in the hand received by Manning and the nature of the
offensive weapon alleged by the prosecution to have been used
by the appellant; and failing to elicit or call witnesses to prove that
the appellant was employed as a rent collector and caretaker and
2
"The Times," January 25, 1966.
H. L. (E.) therefore authorised to go onto the premises where the incidents \

1967 took place.
Rondel
Worsley Louis Blom-Cooper for the appellant. There are three main
— submissions. 1. Whenever one party seeking advice and assistance
• from another party, who is possessed of a special skill, (a) relies
upon that other party to exercise such special skill, and (b) that g
other party knows that reliance is being placed on his skill, the law
implies a duty to take care. The duty imposed arises not ex
contractu, but out of the special relationship that exists between
the parties. 2 (a) The principle that a man who holds himself out
as exercising special skill is under a duty to take care applies to all
professional men; and (b) the liability is as much for financial loss Q
as it is for physical injury. 3. The peculiar characteristics of the
professional work of a lawyer—barrister and solicitor alike—are
relevant to the issue: what standard of duty of care does the law
impose? But these characteristics do not constitute, either singly
or cumulatively, any denial of the existence of a duty to take care.
Nor is there any known rule of public policy which justifies the j}
unique privilege among professional men of immunity from being
sued for breaches of professional duty.
It has long been established that every person who enters into
a learned profession impliedly agrees to bring to it a reasonable
degree of care and skill: see Lanphier v. Phipos.3 Thus what is
required of a barrister is " a fair, reasonable, and competent degree E
of skill." Hart V. Frame* shows that whatever mistake the court
may make it does not affect the liability of the professional agents.
There is plainly a duty on all professional men to take care. The
standard of care depends on the circumstances in each particular
case. The fact that services are rendered gratuitously is irrelevant
to the question of negligence: Donaldson v. Haldane* F
So long as there is an assumption of responsibility by the
professional man he owes a duty of care to all those relying on
his skill and judgment: Norton v. Ashburton (Lord),6 the analysis
of which by Lord Devlin in Hedley Byrne & Co. Ltd. v. Heller &
Partners Ltd.7 is adopted. A solicitor (equally, it is submitted,
a barrister) as a professional man is in a fiduciary relationship
towards those whom he is advising and for whom he is acting
3 7
(1838)8 C. & P. 475, 479. [1964] A.C. 465, 520; [1963] 3
4
(1839) 6 CI. & F. 193, H.L. W.L.R. 101; [1963] 2 All E.R. 575,
5
6
(1840) 7 CI. & F. 762, H.L. H.L.
[1914] A.C. 932, 945, 946, 955,
956, 958, 963-965, 967-969,-972 H.L.
I A.C. AND PRIVY COUNCIL . 197
a L
A professionally. Much the same expression of view as in Nocton - - <E-)
v. Ashburton* was made in Banbury v. Bank of Montreal9 in 1967
respect of advice and acts done. The solicitor is liable for every Rondel
professional act: Fletcher & Son v. Jubb, Booth & Helliwell.10 Worsiey
All these principles were restated and reaffirmed in Hedley
Byrne,11 which concerned liability for financial loss resulting from
B an alleged negligent statement by bankers. Three grounds were
advanced to rebut the claim: (1) In the absence of fraud, there is
no duty of care in the absence of a contract, a fiduciary relation
ship or where harm arises from physical damage done to the
property of the plaintiff. (2) Even if the law is not limited to
these categories, it was settled by binding authority that a banker
C giving a reference in the circumstances of that case was not within
any proximate relationship. (3) Even if bankers and third parties
could be included, nevertheless the facts of the case (including
the specific disclaimers of responsibility) make it inapplicable.
The first two grounds were negatived by this House and it was
for the third reason that the appeal was dismissed.
D The respondents in reason (8) of their printed case contend that
what was said in Hedley Byrne " on the liability of professional
men was obiter dicta. This is not so: see the observations of Lord
Devlin,12 " it is impossible to find the correct answer on the facts to
the appellants' claim until the relevant criteria for ascertaining
whether or not there is a duty to take care have been clearly
£ established"; see also per Gresson J. in Smith v. Auckland
Hospital Board}3
Alleged immunity based on the absence of contractual

relationship
The rule that a barrister has no right to sue for his fees and
F that he is immune from suits for negligence are logically separable.
The inability to sue for fees was never linked to the alleged
immunity. It was never linked originally with any ability or
inability to enter into contractual relationships. It was purely a
matter of status. What was originally a rule of etiquette has
hardened into a rule of law.
G ' The rule relating to fees appears in Lord Nottingham's note
on Coke on Littleton (Co.Inst. (1628), vol. 1, p. 293), " a coun
sellor cannot bring any action for he is not compellable to be a
8
[1914] A.C. 932. " [1964] A.C. 465.
9 12
[1918] A.C. 626, 654, 682, 683, Ibid. 532.
13
689, 690, H.L. [1965] N.Z.L.R. 191, 219 (New
10
[1920] 1 K.B. 275, C.A. Zealand).
H. L. (E.) counsellor; his fee is honorarium, not a debt." See also Viner's A
1967 Abridgment (1741-56), vol. 6, p. 478, and Blackstone's Com-
Rondel mentaries, 17th ed. (1830), vol. 3, p. 28.
V.
Worsley
— The cases
One of the earliest cases is Thornhill v. Evans,14, where Lord
Hardwicke L.C. said: "Can it be thought that this court will B
suffer a gentleman of the bar to maintain an action for fees . . .? "
In Turner v. Philipps 15 it was held that no action lay to recover a
fee given to a barrister to argue a cause which he did not attend,
the decision being that fees were a present by the client. Morris
v. Hunt" contains the first suggestion that barristers should
arrange to be prepaid, and this principle was reinforced by Lindley C
L.J. in In re Le Brasseur and Oakley.17 In Voucher V. Norman 18
it was held that a certificated conveyancer, who was neither a
barrister nor a solicitor could sue for fees, " the general rule is, that
any man who bestows his labour for another, has a right of action
to recover a compensation for that labour. There are two excep- ~
tions to that rule, viz. physicians and barristers. The law
supposes them to act with a view to an honorary reward."
As to the position of physicians, Chorley V. Bolcotlfl decided
that a physician could sue for his fees if he made an express
contract with his patient. See also Veitch v. Russell,2" where
there is a reference to Egan v. The Guardians of the Kensington E
Union, which shows that a barrister acting as a returning officer
could sue for his fees for performing that office.
By section 31 of the Medical Practitioners Act, 1858, physicians
registered under the Act were given for the first time the right to
sue for their fees. This provision was substantially re-enacted by F
section 6 of the Medical Act, 1886; see now section 27 of the
Medical Act, 1956. These Acts, however, have provided that
any college of physicians can pass a by-law prohibiting their fellows
and members from suing, and that if such regulation is passed a
defendant can plead it in answer to an action. Today a Fellow
(but not a Member) of the Royal College of Physicians cannot sue G
for his fees (By-law 155 of the Royal College of Physicians (1960),
p. 48) but is liable for negligent treatment apart from contract:
14 18
15
(1742) 2 Atk. 330, 332. 19
(1825) 3 B. & C. 744, 745 .
16
(1792) Peake 166. (1791) 4 Durn. & E. (Term)
* (1819)1 Chit. 544. 317.
17 20
[1896] 2 Ch. 487, 493, 494. (1842) 3 Q.B. 928, 935.
A Pippin v. Sheppard 21 and Everett v. Griffiths,22 per Scrutton L.J., H - L - <E-)

see also Smith v. Auckland Hospital Board.23 1967
The rule that counsel cannot sue for their fees was restated in Rondel
lit re May.24, As to Scottish practice, see Mackay's Manual of worsley
Practice in the Court of Session (1893), p. 27, para. 11, where it is —■
stated that an action would be sustainable against an agent who
B received fees for counsel from the lay client and retained them for
his own use. See also Shand's Practice of the Court of Session
(1848), vol. 1, pp. 80, 81. Cullen V. Buchanan25 shows that in
Scotland there is no categorical rule that counsel cannot sue
for fees in any circumstances.
In the Irish case of Hobart v. Butler26 there is an indication
C that counsel's fees would be recoverable under an express contract.
To return to the English cases, it is important to consider the
ambit of the decision in Swinfen v. Lord Chelmsford.2'' It was
solely concerned with the scope of counsel's duty in an action and
is no authority for the proposition that counsel cannot be sued for
negligence. It is not disputed that counsel undertakes a duty by
D virtue of his office and not by virtue of any contract with his
client, but he can enter into an express contract, and if he does
he owes a duty to his client apart therefrom. In the sequel to that
case, Kennedy v. Broun,29 Erie C.J. negatived the claim for the
recovery of fees by counsel from the client but it is difficult to
discover the basis of the decision. The nub of the judgment is the
E suspicion of champerty. There is nothing here which would
preclude an action for negligence against counsel. The case was
solely concerned with an action for the recovery of fees.
The Privy Council in Reg. v. Doutre29 questioned the basis on
which Kennedy v. Broun 29a was decided in so far as the latter was
not based on usage and the peculiar constitution of the English Bar.
* The board did not consider that it could be based on public policy.
Robertson v. Macdonogh30 is in conflict with Reg. v. Doutre31
in that it accepts the whole basis of the decision in Kennedy v.
Broun.32 It also contains dicta relating to immunity following
Pigot C.B. in Mulligan v. M'Donagh.33 In re Le Brasseur and
£, Oakley3i is the first English case to contain an indication that
21 28
(1822) 11 Price 400. (1863) 13 C.B.N.S. 677.
22 29
[1920] 3 K.B. 163, 193, C.A. (1884) 9 App.Cas. 745, 751.
23 29a
24
[1965] N.Z.L.R. 191, 202. 30
13 C.B.N.S. 677.
23
(1858) 4 Jur.N.S. 1169. 31
(1880) 6 L.R.Ir. 433, 436, 437.
26
(1862) 24 Dunlop 1132. si
9 App.Cas. 745.
(1859) 9 I.C.L.R. 157, 160, 163, 33
13 C.B.N.S. 677.
165. (1860)2L.T. 136, 137.
27 M
(1860) 5 H. & N. 890. [1896] 2 Ch. 487, 494, C.A.
H.L. (E.) since counsel cannot sue for his fees he cannot be sued for A
1967 negligence: see per Lindley L.J.
Rondel The doctrine of the inability to sue for fees is a special rule
Worsley based on the notion of an honorarium. The basis of that rule
is the indignity of someone in such an exalted professional status
suing for his fees. It is a rule shared with physicians. In early days
it was not linked with the barrister's professional skill or judgment B
or with his duty to take care in performing his work but it was
linked entirely with his status. Nearly all the textbooks base
immunity on the basis of incapacity to sue for fees: see Halsbury's
Laws of England, 3rd ed., vol. 3 (1953), p. 46, para. 66; Salmond on
Torts, 14th ed. (1965), p. 283; Winfield on Tort, 7th ed. (1963),
pp. 184, 185; Walker, Delict (1967), vol. 2, pp, 1042, 1043, 1046, C
1047. None of these textbooks bases the rule on public policy
as do the judgments below in the present case.
The nature of the profession

There are two separate branches of the profession each with its
own personnel, regulations, professional body and career structure. D
The two branches are in competition. Solicitors appear in a very
high percentage of cases in all courts. The only courts in which they
have no right of audience are the High Court and quarter sessions.
98 per cent, of all criminal cases are conducted by solicitors and 75
per cent, of civil cases could be done by solicitors.
Barristers do a great amount of work that is not court work— "
drafting of various kinds, the writing of opinions. Therefore
fusion is irrelevant to the question whether there is liability for
negligence. What is important is the function of the profession in
providing a legal service to the community. It is irrelevant to the
client whether or not the profession is divided.
Alleged immunity from actions for negligence

The rule does not appear in any of the early writings at all.
It does not emerge until the end of the 18th century. The first
suggestion of the immunity in " modern " times is to be found in
Brook v. Montague.3' The most helpful of the earlier cases that G
assists the appellant is Bradish V. Gee,36 where Lord Hardwicke
L.C. said: " where a decree is made by consent of counsel, there
lies not an appeal or rehearing, though the party did not really give
his consent; but his remedy is against his counsel. . . ." Burness v.
35 36
(1605) Cro.Jac. 90. (1754) 1 Amb. 229.
H L
A Morris " indicates that if there was immunity it was for the judges - - (E->
so to state. 1967
The first breath of immunity came in 1791 in Fell v. Brown,38 Rondel
where a barrister was unsuccessfully sued for negligently settling wor'sley
and signing a bill filed by the plaintiff in Chancery. Lord Kenyon
observed that, " he believed this action wasi the first, and hoped it
B would be the last, of the kind." It is to be noted that Bradish v.
GeeM was not cited. In Perring v. Rebutter*" an action for
negligence against a special pleader failed but the report is unsatis
factory in that there was no judgment, the case being settled on
Lord Abinger C.B. giving his opinion that the action was not
maintainable against a barrister and that there was no distinction
C between the case of a barrister and a certificated special pleader.
In Purves v. Landell*1 the rule of immunity was categorically
stated, without reasons assigned by Lord Campbell. It was, how
ever, pure dicta since the case concerned an attorney or solicitor.
This appears not to be the law of Scotland whatever might have
D been the English rule. At least Batchelor v. Pattison*2 does not
assist the respondent. It is a decision solely concerned with the
limits of counsel to bind his client. The observations on immunity,
therefore, are purely obiter. Lord President Inglis in denying that
the advocate enters into any contract has overlooked the true
nature of mandate. Under Scots law once the doctrine of mandate
E comes into operation there is an entitlement to sue for fees. As
to mandate: see the institutional writers who have great authority
in Scotland—Stair's Institutes (1686), Book 1, title 12, para. 5;
Erskine's Institute of The Law of Scotland (1828), Book 3, title 3,
para. 32.
_ In modern times advocates have been able to sue for fees
P
actually in the agent's hands. Shand's Practice of the Court of
Session (1848), vol. 1, p. 80, is of the opinion that there is nothing
in Scots law to prevent an advocate suing for his fees; see also an
article entitled " counsels' fees " in 1964 S.L.T. 137 (news) which
is adopted.
G As to English authorities which indicate that physicians can be
sued for negligence: see Doctor Groenvelt's case,43 where Holt C.J.
recognised that an action on the case would lie for injury caused by
4l
" (1849) 11 Dunlopl2S8. (1845) 12 CI. & F. 91, 103,
38
(1791) Peake 131. H.L.
39 42
1 Amb. 229. (1876) 3 R.(Ct. of Sess.) 914.
40 43
(1842) 2 Mood. & R. 429. (1697) Raym.Ld. 213.
H.L. (E.) curiosity, experiment and neglect; Anderdon v. Burrows" and A

1967 Ruddock v. Lowe.45
Rondel Until 1860 when Swinfen v. Lord Chelmsford 46 and the Irish
case
Wor'sley °^ Mulligan v. McDonagh " were decided, there had been no
suggestion whatsoever of immunity for counsel. At that moment of
time when the question did arise it was rationalised on the basis
of the inability to sue for fees: see per Pollock C.B. in Swinfen v. B
Lord Chelmsford,,48 who relied on the proposition that a party
who gives advice gratuitously is not liable if he acts bona fide: see
Shiells v. Blackburne.™ This proposition was negatived in Hedley
Byrne,50 per Lord Morris of Borth-y-Gest, Lord Hodson and
Lord Pearce.
Until the present case it was widely assumed that immunity C
existed solely on the basis of the inability of counsel to sue for
fees. Further, it is a fondly held view that a solicitor is only
liable for negligence arising out of contract: see per Lord
Denning,51 who cites Groom v. Crocker52 But a solicitor is also
liable in tort: Nocton v. Ashburton,53 which was not cited in
Groom v. Crocker54 The limitation to contract was also enun- D
ciated in Clark v. Kirby-Smith55; Bagot V. Stevens Scanlan &
Co.56 and Cook v. Swinfen.57 But in the Scottish case of
Robertson v. Bannigan 58 it was recognised that an action against a
negligent solicitor is not only in contract but also in delict. That
the remedy is not confined to contract is stated in Howell v.
Young59 and Brown v. Boorman.60 E
In conclusion on this part of the appeal: (1) No specific excep
tion has ever been stated to the proposition laid down by Tindal
CJ. in Lanphier v. Phipos61 that " every person who enters into
a learned profession undertakes to bring to the exercise of it a
reasonable degree of care and skill " until the present case. (2) The
alleged rule of immunity emerges only in 1860 in Swinfen v. Lord F
Chelmsford,62 although this case was concerned only with the
apparent authority of counsel. Since the common law recognised
44 55
(1830) 4 C. & P. 210. [1964] Ch. 506; [1964] 3
45
46
(1865) 4 F. & F. 519, 522. W.L.R.
56
239; [1964] 2 All E.R. 835.
47
5 H. & N. 890. [1966] 1 Q.B. 197; [1964] 3 „
2 L . T . 136. W.L.R. 1162; [1964] 3 All E.R. <*
48
5 H. & N. 890, 924. 577.
49
(1789) 1 H.B1. 158, 159. " [1967] 1 W.L.R. 457, 461;
50
[1964] A.C. 465, 495, 510, 538. [1967] 1 All E.R. 299, C.A.
51
[1967] 1 Q.B. 443, 504F. « 1964 S.L.T. 318, 319.
52 59
[1939] 1 K.B. 194, 222; [1938] (1826) 5 B. & C. 259.
60
2 All E.R. 394, C.A. (1884) 11 CI. & F. 1, 11, 12,
53
[1914] A.C. 932. 44. H.L.
54 61
[1939] 1 K.B. 194. 8 C. & P. 475, 479.
62
5 H & N. 890.
A general liability for negligence, the only rational basis for exempt- H - L - <E-)
ing barristers was thought to be the inability to contract. But this 1967
was and is erroneous. (3) A professional man's duty to take care Rondel
is a duty irrespective of contract: see Pippin v. Sheppard63 and wonsley
Everett v. Griffiths,™ which relate to doctors, and Nocton v. —
Ashburton 65 which concerns solicitors. (4) Until the present case
B there was never any conscious articulation of any ground for
immunity apart from inability to contract and inability to sue for
fees. (5) The sole ground that is now given for immunity is public
policy. (6) The sole question, therefore, in 1967 is not whether
a barrister is immune from liability for negligence but whether
public policy demands that he should be immune from suit.
C
Public Policy
(1) The judgments of the Court of Appeal rest squarely on
public policy which is a ground never hitherto advanced in the
courts or in textbooks. It is a new head of public policy. (2) It
is conceded that whilst it may be possible for the courts to create
Q new heads of public policy (contrast the observations of the Earl of
Halsbury L.C. in Janson v. Driefontein Consolidated Mines
Ltd.66 with those of Lord Atkin and Lord Wright in Fender v.
St. John-Mildmay67) nevertheless the courts will be very circum
spect in so doing. The courts may invoke a new head of public
policy where the mores of society have manifestly changed. Nagle
v. Feilden6S is a good example. (3) It is the province of the courts
to expound the law and not to speculate on what is best for the
law. (4) Public policy should be invoked only in clear cases in
which harm to the public is incontestable. (5) Whether the harm
to the public is substantially incontestable must be determined on
F tangible grounds and not on mere generalities. (6) The onus is
always on those who assert that the court is not to enforce a
liability which is ex facie good. (7) Where advantages and dis
advantages do not disclose which way the balance of convenience
would lie, public policy is not to be invoked, but the ordinary
rule of law applies. (8) Public opinion is a factor in determining
public policy and where the public policy is said to rest on public
interest it is relevant to see how the public views its own interest.
63
11 Price 400. " [1938] A:C. 1, 11, 12, 37, 40,
64
[1920] 3 K.B. 163. H.L.
65 68
[1914] A.C. 932. [1966] 2 Q.B. 633, 650;- [1966]
66
[1902] A.C. 484, 491, 492, H.L. 2 W.L.R. 1027; [1966] 1 All E.R.
689. C.A.
H. L. (E.) Public policy as relevant to a barrister's immunity generally A

1967
(1) The judgments of the Court of Appeal are concerned almost
Rondel entirely with the detriment that liability would cause both to the
Worsley profession and to the clients. The judgments wholly overlook the
obvious benefit to a barrister's clients in being able to sue for
negligence. The effect of public policy is to deprive citizens of
their rights against negligent barristers; rights which they have B
against every other professional man whom they might employ.
(2) Opinion as expressed in public journals is almost unanimously
opposed to the conferment of the immunity: see " The Times,"
October 22, 1966; " Sunday Times," October 23, 1966; Financial
Times, October 24, 1966; New Law Journal, October 27, 1966;
c
Solicitors' Journal, October 28, 1966; The Economist, October 29,
1966; Law Society's Gazette, November, 1966; New Statesman,
November 11, 1966; Journal of the Law of Scotland, November,
1966. Partial dissent is expressed in the Spectator, October 28,
1966. (3) All the existing heads of public policy contain a specific
moral judgment against the particular practice in question, for
example, contracts of marriage brokerage; creation of perpetuities; D
contracts in restraint of trade; gaming or wagering contracts;
assisting the sovereign's enemies; interfering with or hampering
the administration of justice; sex discrimination or racial
discrimination. (4) There is nothing socially or morally undesirable
in the client obtaining redress against a negligent barrister. If there
were, public policy would clearly have to apply to create immunity
for solicitors—and it does not.
There is no distinction to be drawn between advocacy and
non-advocacy. For example, suppose counsel writes an opinion
stating that there is no case to answer and the pleadings are
drafted on that basis, counsel having overlooked a relevant statute. F
Another counsel represents the client in court. Is only the counsel
appearing in court to be immune? It is impossible to draw a
dividing line between chambers work and litigation. Thus, a
variation of trust settlement may lead to litigation.
When a client comes to a lawyer he comes to him for all the
services he can provide. If a conflict ever arose between counsel's
duty to the court and that to his client it could never be held that
counsel was negligent.
The interests of the administration of justice are not confined
to the court but to the whole realm of the law. The limit of
immunity has already been reached by the grant of immunity in
H L (E
A respect of actions for defamation given to judges, barristers, and - - )
witnesses. 1967
In Australia, the state of Victoria has made provision for Ronde j
barristers to be liable for negligence: see the Legal Profession Wor"siey
Act, 1958, s. 10. [Reference was made to Montriou v.
Jefferys•'; Stokes V. Trumper7°; Scudder v. Prothero and
B Prothero 71; Lopes V. Adams and Vanier.72]
There is a fundamental confusion between immunity for things
done in performance of duty and immunity for things done in
breach of duty. Defamatory remarks are in a different category
from negligent statements for a defamatory statement is not
necessarily uttered negligently. Pogrund v. Yutar " shows that the
C immunity given to counsel in this country against the making of
defamatory statements is wider than that in Roman-Dutch juris
dictions where it is considered that the immunity should be re
stricted to one of qualified privilege.
The extent of the immunity in respect of various persons con
cerned in court proceedings has been laid down in the following
D decisions: (i) judges: Scott v. Stansfield u ; (ii) witnesses: Revis V.
Smith 75; (iii) parties: Seaman v. Netherclift76; (iv) witnesses' proof
out of court: Watson v. M'Ewan77; (v) witnesses' false evidence:
Hargreaves v. Bretherton7S; (vi) witnesses' conspiracy to give false
evidence: Marrinan V. Vibart.7"
Munster v. Lamb 80 shows that the rule giving an advocate
E complete immunity in respect of statements made in the course of
judicial proceedings is one for the protection of free speech so that
the truth may be established. It does not follow at all that the
same immunity should be granted in respect of negligent conduct.
If it be a blanket immunity then those decisions that hold that a
solicitor is liable for negligent advocacy are inapplicable. The
F doctrine of public policy has been carefully circumscribed to protect
counsel, together with all other persons engaged in court pro
ceedings, from actions for defamation and the like in order to
further the better administration of justice. There is no high public
interest in protecting counsel from actions for negligence brought
against them by their clients.
G
69
(1825) 2 C. &P. 113. " (1876) 1 C.P.D. 540; affirmed,
70
(1855) 2 K. & J. 232. (1876) 2 C.P.D. 53.
71 77
72
"The Times" March 16, 1966. 78
[1905] A.C. 480, H.L.
(1965) 9 W.I.R. 183 (British [1959] 1 Q.B. 45; [1958] 3
Guiana). W.L.R. 463; [1958] 3 All E.R. 122.
73
1967 (2) S.A.564 (South Africa). ' 9 [1963] 1 Q.B. 528; [1962] 3
74
(1868) L.R. 3 Ex. 220. W.L.R. 912; [1962] 3 All E.R. 380,
75
(1856) 18 C.B. 126. C.A.
80
(1883) 11 Q.B.D. 588, C.A.
206 HOUSE OF LORDS [1%9]
H. L. (E.) Grounds upon which public policy is said to rest A

1967
These are three: (1) The nature of a barrister's professional
Rondel duties. (2) That retrials would be intolerable. (3) It would open the
Worsiey door to every disgruntled client.
(1) It has been said that a barrister's duty is of a tripartite
nature. In the appellant's submission it is bipartite; there is a duty
to the client and a duty to the court. Doubtless counsel has duties B
to perform apart from those to his client but so has every pro
fessional man; he is subject to the discipline of his professional body
which has rules to protect the public.
The duties which the professional man owes to his client and
those he owes to the public rarely conflict, and if the duty to the
court has to prevail to the client's detriment, who will say that the C
barrister has been negligent to his client? The real fear is that
barristers will be subject to law suits which come nowhere near
negligence. This is a real difficulty, but one that is shared by other
professions, for example, doctors, accountants, surveyors, and in
their case they are subject to lay (although judicial) scrutiny,
whereas in the case of the lawyer at least the tribunal is acquainted CI
with the technicalities of the duty under scrutiny.
It is also true that barristers would become liable to be harassed
by vexatious litigants, but so are other professional men. Further,
it is said that a barrister cannot choose his clients, but it is a feature
of a profession that the practitioner thereof holds himself out to the
whole world. Solicitors do in fact act as a screen to the Bar. The B
most unreasonable litigants to appear before the courts are litigants
in person.
It is conceded that while dock briefs exist, a burdensome
obligation is placed on counsel for an almost derisory honorarium,
but this system will disappear when full legal aid in criminal cases
becomes statutory. F
The Rules of the Supreme Court provide for the striking out of
a mischievous and vexatious claim at any stage of the proceedings.
Moreover, section 51 of the Supreme Court of Judicature (Con
solidation) Act, 1925, empowers restrictions to be placed on
proceedings instituted by persons who are made vexatious litigants.
There is no greater danger of a professional man acting negli
gently in dealing with a difficult client than in dealing with the
normal client. It is the difficulty of the case and not the difficulty
of the client that causes the risk. In Victoria, the Bar cannot
pick and choose their clients; nevertheless they are liable to be
sued for negligence.
1 A.C AND PRIVY COUNCIL 207
A Solicitors'duty to take care H. L.(E)

1967
The solicitor's duty to take care covers the whole range of
litigation. Solicitors seem to have survived the burden of this Rondel
liability and they are at much greater risk so far as negligence is worsley
concerned than are barristers. The appellant has been unable to
discover any evidence from legal textbooks and journals published
B in the last hundred years that solicitors have complained of the
burden of liability for negligence.
As to the English authorities: see Hatch V. Lewis81; Hawkins
v. Harwood82; Swannell v. Ellis83; Fergusson v. Lewis84; Reece
v. Rigby85; Mercer v. King86; Scudder v. Prothero and
Prothero.*7 For the Scottish authorities: see Ritchie v.
C Macrosty88; Urquhart v. Grigor8*; Smith V. Grant and Leslie w;
Murray v. Reilly.*1
(2) The real fear here is in criminal cases. It is said that where
a criminal court convicts a man and sentences him to a term of
imprisonment there is the real possibility that a prisoner with
time on his hands will then attempt to sue his counsel. But legal
® aid will be a screen to prevent the bringing of frivolous and
vexatious claims.
There are two alleged objections (a) if he should succeed in the
civil action, the prisoner will expose a glaring inconsistency in the
legal machinery. Guilt—innocence; and (b) there should be an
end to litigation.
There is nothing inherently wrong in bringing an action where
additional evidence has come to light. The inconsistencies which
are said to exist have always existed: see, for example, Hinds'
case: Reg. v. Hinds."2 They spring from the rule in Hollington
v. Hewthorn & Co. Ltd."3 that a criminal conviction cannot be
F used in evidence in a civil case, which encourages the convicted
person to chance his arm. It is submitted (i) that the rule in
Hollington V. Hewthorn 93 is not good law but was a decision
per incuriam in that Hill v. Clifford94 was not there cited to the
Court of Appeal, (ii) Even if the rule is good law it is for the
legislature to reverse if it thinks fit and not for the courts to bar
-, the way of a convicted person to obtain justice if he was wrongly
81 8
(1861) 2 F. & F. 467. » (1857) 19 Dunlop 853.
82
(1849) 4 Ex. 503. »» (1858) 20 Dunlop 1077.
83
(1823) 1 Bing. 347. « 1963 S.L.T.(Notes) 49.
84 92
(1879) 14 L.J. 700. "The Times," November 24,
85
(1821) 4 B. & Aid. 202. 1965.
86 93
(1859) 1 F. & F . 490. [1943] K.B. 587; [19431 2 All
87
"The Times," March 16, 1966. E.R. 35. C.A.
88 94
(1854) 16 Dunlop 554. [1907] 2 Ch. 236, C.A.
H. L. (E.) convicted as a result of his counsel's negligence. In any event it is ^

1967 a very strange rule on which to base an immunity, (iii) There is
R0ndei no absolute virtue in an end to litigation. For example, it is only
Wor'sie J ust t n a t a P e r s o n w n 0 n a s ' 5 e e n sentenced to a longer term of
imprisonment than is lawful should be entitled to sue for damages.
Suppose a prisoner is sentenced to four years' imprisonment for an
offence for which the maximum sentence is two years; counsel g
failed to point out the illegality to the trial judge and fails to advise
for an appeal against sentence, is it to be suggested that the
prisoner in those circumstances can only seek ex gratia compensa
tion from the Crown?
It is conceded that giving a right of action for negligence against
counsel necessarily means a retrial of the original proceedings. Q
This is an argument which is advanced after any innovation in
the law of tort. It was said after the decision in Donoghue V.
Stevenson.95
If this argument is valid, then evidence could have been adduced
from other jurisdictions to support it, but none has been forth
coming. Lord Denning M.R. said,96 that there was no assistance D
to be obtained from other countries because, "the relationship
between him and his client does give rise to legal obligations. He
can and does make a contract for his fees. He can sue for them."
But not only does this contradict his earlier remark97 that " the
immunity can no longer be justified on the ground that a barrister
cannot sue for his fees," it also confounds the whole argument E
based on public policy because a public policy of immunity must
be valid for the legal profession as a whole and not merely for
one branch of it.
As to the fear of being consistently sued, this applies to all
professional men. Is not the doctor tempted to prescribe all the
drugs that the hypochondriacal patient requires? Is not the F
surveyor tempted to hedge round his report with so many
qualifications as to defeat the purpose of a report?
It is to be remembered that counsel can always take out
insurance cover.
All these considerations cumulatively indicate that there are,
it is conceded, advantages to a smooth and orderly administration Gr
of justice that barristers should be immune. But the advantages
have been overstated in the courts below and have not been put
in balance with the disadvantages of conferring an anomalous
95
[1932] A.C. 562, H.L. " Ibid. 501 E-F.
96
[1967] 1 Q.B. 443, 505c.
A privilege on a class of professional men to the detriment of the H. L. (E.)

public whose interest is to obtain a remedy for negligent treatment 1967
at the hands of men in whom they must inevitably put their trust. Rondel
An unremedied breach of duty to take care must be an evil in Worsiey
society; it needs powerful arguments to permit of such evil to —
stand uncorrected. There are no such powerful arguments; only
B matters of self interest projected into alleged benefits to the
public. Other jurisdictions have demonstrated that the immunity
is both unnecessary and unwarrantable.
As to the American authorities, see: Van Wallhofin v.
Newcombe98; O'Neill v. Gray " ; Cleveland v. Cromwell 10° and
Olson V. North.101
C In conclusion, it is submitted that the principle of liability has
been established and that in a clear case of negligence it will be
applied. The advocate will always have the opportunity to
contend that his advocacy did not fall so below the normal standard
of care as to constitute negligence.
Robin Dunn Q.C., Reginald Batt and John Previte for the
D respondent. Reliance is placed on the following submissions:
1. The amended statement of claim on which the appellant
elected to stand was struck out. Therefore whatever be the
outcome on the general issue the action should be struck out on
the ground given by the majority of the Court of Appeal, namely,
that it was a hopelessly bad statement of claim.
E 2. The main basis for the decision in Hedley Byrne & Co. Ltd.
v. Heller & Partners Ltd.102 is that a man may by his conduct
enter into a special relationship whereby he assumes a responsibility
to be careful and this application of assumpsit or implied under
taking is the theme of most of the speeches. Indeed, Lord Devlin
stated 103 that the basis of it must be in contract.
3. It is established and settled law that counsel is incapable of
making a contract with his client and that incapacity is based
upon a rule of public policy. If a barrister cannot enter into
an express contract then any liability by implied conduct must
also be excluded. Bankers, physicians, solicitors all have the
capacity to contract; counsel has not.
4. The Hedley Byrne case 104 emphasises that if the existence
of a duty is expressly negatived at the time that it would ordinarily
98 101
(1877) 10 Hun. 236 (U.S.A.). (1934) 276 IU.App. 457,
99
(1929) 30 Fed. 2d. 776, (U.S.A.).
102
(U.S.A.).
100 103
[1964] A.C. 465.
(1905) 110 App.Div. 82 Ibid. 465, 528-530.
(U.S.A.). 104 [1964] A.C. 465.
H. L. (E.) arise there can be no liability. Since the middle of the 18th A
1967 century at least (indeed, probably from the middle of the 16th
R0ndei century) there has been a commonly observed practice or under
work standing whereby a barrister has established a position of immunity,
which may be described as a usage or as an implied disclaimer, of
responsibility within the formula of Hedley Byrne.104
5. A barrister is professionally bound to accept work from B
any client in the field in which he practises thus distinguishing him
from every other profession and rejecting the voluntary acceptance
of responsibility.
6. The reasons given for the immunity in Swinfen v. Lord
Chelmsford los were that counsel undertook a duty to the public as
well as to his client and that if there were no immunity counsel c
would be in peril of an action from every angry and disgruntled
client. These were the principal grounds given for the immunity
in the instant case therefore no new head of public policy is in
issue. All that the Court of Appeal did below was to confirm a
head of public policy pronounced in 1860 and to emphasise that
this head of public policy is as vital today as it was in 1860. D
7. Public policy requires that counsel should have immunity
generally and not merely against slander in the face of the court.
Counsel, equally with judges and witnesses, should not have to be
" looking over his shoulder " during the course of a trial.
8. Public policy also requires that there should be finality in
litigation. E
9. The respondent concedes that there is no logical dividing
line between court work and paper work. Accordingly, if public
policy requires that counsel should have immunity in respect
of his court work it should logically apply to all his work.
The respondent does not propose to canvass again the issues
raised in Hedley Byrne.106 The foundation of the principle laid F
down in that case is the voluntary assumption of responsibility.
There must exist a special relationship together with an assumption
of responsibility. The fact that there is an assumption of responsi
bility does not necessarily imply a liability for negligence. The
House emphasised that the giver of advice can unilaterally negative
responsibility. G
The correct approach in considering whether responsibility is
assumed in any particular circumstances is not to apply a general
principle but to work from the isolated case and see what the law
is and whether there is any precedent to cover those particular
1M 105 106
[1964] A.C. 465. 5 H. & N. 890. [1964] A.C. 465.
A circumstances. The decision in the Hedley Byrne case106 rests on a H L

- - (E-)
combination of proximity, a special relationship and an assumption 1967
of responsibility or liability of the person making the statement. Roildei
It is wrong to say that all professional men are under a duty worsley
of care; barristers are professional men; therefore barristers are —
under a duty of care. The correct approach is to examine the cases
B and ascertain how far they pertain to barristers in the field of
negligence.
There can exist a special relationship without an assumption of
liability. The mere fact that a person holds himself out to give
advice and receives payment therefor is not enough by itself to
establish a legal relationship giving rise to a duty of care.
C Lord Devlin in Hedley Byrne lor was prepared to adopt any
one of the other Law Lords' statements as showing the general rule.
In his own view for the relationship to arise the parties must have
contractual capacity. Hedley Byrne108 recognises that there is a
distinction between acts causing physical damage and acts causing
economic damage and it also recognises the situation where the
D law imposes liability from the outside, for example, a common
calling, an innkeeper, a common carrier. But in considering the
professional man Hedley Byrne 108 shows that what has to be looked
for is an assumption of liability and an unequivocal undertaking
(in no way limited by a disclaimer), or a relationship equivalent to
contract or circumstances in which, but for the absence of con-
E sideration, there would be a contract.
In considering in a given case whether there are such circum
stances it is necessary to ascertain whether the parties have the
capacity to enter into a contract. If they have not there cannot be a
legal relationship between them. A member of the Bar is in the
unique position of being incapable of entering into a contract with
F his client and vice versa. This was first established by Kennedy v.
Broun109 which shows that if a barrister has no capacity to enter
into an express contract he has no capacity to enter into an implied
contract. That decision110 makes a clear distinction between not
contracting in fact and the incapacity to enter into a contract.
Physicians, for example, are under no such incapacity; there are
G merely certain circumstances prescribed under the Medical Acts
whereby when a patient is sued by his physician he can raise a plea
in bar. But that is quite different from an incapacity to enter into
a contractual relationship. Kennedy v. Broun 110 was fully argued
106
[1964] A.C. 465.
107 109
Ibid. 530. 13 C.B.N.S. 677, 727, 732, 739.
108 ll
[1964] A.C. 465. ° 13 C.B.N.S. 677.
212 HOUSE OF LORDS [1969J
H. L. (E.) anc j w e n t ^ c k j n th e authorities to the earliest times. It relies both A

1967 on authority and principle and it has been followed and approved by
Rondel the Court of Appeal and relied upon in four other cases the last
Wor'siey °* w n i c n was decided in 1935. It is not a decision that should be
overruled it having stood unchallenged for 100 years. The four
cases in question are: Mostyn v. Mostyn 1U In re Le Brasseur and
Oakley 112; Wells v. Wells 113 and In re Sandiford (No. 2).1U B
It is emphasised that a barrister is incapable of entering into
any kind of contractual relationship with his client at all. It follows
that he is in those circumstances incapable of entering into a
relationship comparable to contract. One looks at the relationship
and the nature of the parties. If that relationship is one equivalent
to a contract or a voluntary undertaking then if a person is C
incapable of making a contract he does not accept a duty when he
enters into that relationship. It is of interest that in medieval
times assumpsit took the form of a voluntary undertaking and it
was originally an action in tort.
If an action is brought in contract against a defendant who has
no capacity to make a contract he cannot be sued in tort in D
respect of the same set of facts: see Chitty on Contracts, 22nd ed.
(1961), vol. 1, para. 414 for the comparable case of an infant and
also Cheshire and Fifoot on the Law of Contract, 6th ed. (1964),
p. 360.
If an accountant who was an infant, gave wrong advice he
could not be sued in contract nor, in view of Hedley Byrne,115 in **
tort for he would not be deemed to be undertaking liability since
he could not be sued in contract.
To advert once more to the position of the physician, his
position is quite different from the barrister for he always has the
capacity to make a contract: Veitch v. Russell.116 The position
of a Fellow of the Royal College of Physicians under section 27
(2) of the Medical Act, 1956, would not prevent proceedings for
negligence under the principle of Hedley Byrne.117
The rights and obligations of professional men are normally
governed by contract. Thus in Bagot v. Stevens, Scanlan & Co.
Ltd.11* it was held that the liability of an architect is in contract -,
alone. It followed the decision of Plowman J. in Clark v. Kirby-
Smith 11V concerning solicitors.
111 116
(1870) 5 Ch.App. 457. 3 Q.B. 928.
112 117
113
[1896] 2 Ch. 487, C.A. I18
[1964] A.C. 465.
[1914] P. 157, C.A. 119
[1966] 1 Q.B. 197.
"«
115
[1935] Ch. 681. [1964] Ch. 506.
[1964] A.C. 465.
A It is to be observed that under American law there can be H.L. (E.)

liability although there is a disclaimer: see Texas Tunnelling Co. 1967
v. City of Chattanooga.120 But that case120 is plainly distinguish- Rondel
able for it appears from the report that the disclaimer was not relied worsley
on. —
A barrister's immunity has been judicially recognised since the
B end of the 18th century: see Fell v. Brown.121 It is to be observed
that that case 121 was decided by Lord Kenyon who subsequently
held in Wilkinson v. Coverdale 122 that a person who undertook
gratuitously to take out an insurance policy for another could be
liable in negligence. It is therefore extremely unlikely that Lord
Kenyon decided that a barrister enjoyed immunity per incuriam.
C In Swinfen V. Lord Chelmsford 123 it is important to observe
that the argument for the plaintiff was akin to that put forward in
the present case, namely, that the golden rule is that a person who
has agreed to do work is liable if the work is done negligently and
cases were cited including Shiells V. Blackburne 124 and Wilkinson
v. Coverdale125 that were referred to in Hedley Byrne.120
D Bramwell B. intervened and stated 127 " the general doctrine is
clear; the only question is, whether the case of counsel is an
exception." In view of the authorities cited to the court Swinfen
v. Lord Chelmsford12S cannot have been decided per incuriam.
Counsel's duty to the court was there stressed as it was by the
Court of Appeal in this case. No distinction was drawn between
E the duty to the court, the duty to the client and the duty to the
public. The duty owed to the court cannot be a legal duty, it is
a professional duty; it gives no right to a cause of action. Similarly
the duty to the public—the duty to take any client—and the duty
owed to the client. In neither of these cases is there a legal duty
but only a professional duty for breach of which the only redress
F is to refer the matter complained of to the disciplinary body of
the profession. In Swinfen v. Lord Chelmsford 128 the immunity
of counsel was put on the basis of public policy. No action will lie
against counsel for any act honestly done.
The effect of that decision may be summarised thus: (i) Counsel
is immune from suits of negligence and in the absence of dishonesty
he will not be liable for anything said or done in the conduct of
the case even if it is directly contrary to the wishes of his client.
120 124
(1962) 204 Fed.Sup. 821 12S
(1789) 1 H.B1. 158.
(U.S.A.). 1 Esp. 75.
121 126
Peake 131. [1964] A.C. 465.
122 12T
(1793) 1 Esp. 75. 5 H. & N. 890, 911.
123 128
5 H. & N. 890. 5 H. & N. 890.
H. L. (E.) (ii) it j s based not on the ground that counsel cannot sue for his \
1967 fees but on public policy; (iii) The decision was arrived at after
Rondel full argument in which the relevant authorities concerning the
Worsley liability of persons for gratuitous acts were cited, (iv) The case
— established that counsel in relation to his conduct of a case is in
an exceptional position from that of any other activity or profession.
(v) The case in no way conflicts with the principle of Hedley B
Byrne 129 for the Court of Exchequer Chamber was concerned with
the acts of counsel in the conduct of a case whilst this House was
concerned with negligent statements, the law relating to negligent
acts having been established long before Hedley Byrne.12"
The law of Scotland on the question in issue has proceeded in
the same way as in England. In Purves v. Landell,130 Lord C
Campbell said that counsel was not liable for giving negligent
advice and that there was no distinction whatever on this matter
between the law of Scotland and the law of England. Bachelor v.
Pattison and Mackersy 131 was decided on the same grounds as was
Swinfen v. Lord Chelmsford.™2 It had already been held in
Scotland in 1827 in Megget v. Thomson 133 that an attorney was D
protected if he had acted on the advice of counsel. Otherwise an
attorney is liable for negligent conduct: Donaldson v. Haldane.13i
The Scottish cases are very significant indeed. The immunity of
counsel in Scotland is based on the fact that as between counsel
and client there is no intention to enter a legal relationship. Further,
it is shown that the fact that counsel was unable to sue for his fees E
was an irrelevance since in Scotland a contract can be entered into
between counsel and client without consideration.
The above English and Scottish authorities settled the law
in so far as the conduct of a case is concerned.
As to Nocton V. Ashburton,135 it is significant that after that
decision no action has been brought against counsel in respect of F
his conduct of a case or of the giving of negligent advice. It
was decided 50 years before Hedley Bryne.136 It cannot be
that in the intervening period no counsel has ever conducted
a case negligently or ever given negligent advice. It is difficult
to contend that when counsel settles a conveyance or drafts a
company prospectus he is making a statement. He is doing G
a task. It is also significant that no action has been brought for
150 years for the negligent settling of a document. It has never
129 133
[1964] A.C. 465. (1827) 5 Shaw 275.
130 134
12 CI. & F. 91, 102. 7 Q. & F. 762.
131 135
3 Rett 914. [1914] A.C. 932.
132 I36
5 H . & N . 890. [1964] A.C. 465.
A been suggested that Nocton v. Ashburton 137 altered the position H. L. (E.)
of counsel. True, in Everett v. Griffiths 138 it was stated that the 1967
duty of care owed by a doctor extended not only to treatment but R0ndd
to the giving of advice and that Atkin L.J.139 considered that even worsley
in the absence of a contract a doctor would be liable if he gave
negligent advice, but it was never suggested in that case that counsel
B would be so liable.
It is conceded that Hedley Byrne 14° is a landmark in English
law but it contains nothing new in relation to the duty owed by a
person undertaking a task involving care or skill. It certainly
clarified the law as regards the making of statements and the giving
of advice and overruled Candler v. Crane, Christmas & Co.1"
C What is new in Hedley Byrne 142 is that it extends the range of
persons to whom a duty may be owed, but as between the original
giver of advice and the recipient it does no more than clarify the
statements thereon to be found in Nocton v. Ashburton 143 and
Everett v. Griffiths.1"
The striking contrast should be noted between the cases that
D arise year after year concerning actions for negligence against the
members of different professions and the complete absence of such
actions against counsel. This cannot have passed unnoticed but the
immunity of counsel has not been questioned since Swinfen v.
Lord Chelmsford.1"
Reliance is placed on usage. If there is a general usage per-
E tabling to a particular trade or profession persons employing a
member of that trade or profession will be taken to have employed
him in accordance with that usage. As regards counsel, see Reg.
v. Doutre146 for the general statement there expressed.
There is no distinction to be drawn between counsel instructed
by a solicitor and counsel who accepts a dock brief. In both cases
F counsel accepts the brief on the usual terms one of which is that he
cannot be sued for negligence. See per Lord Denning M.R.147 and
Danckwerts L.J.148 Further, Danckwerts L.J.'s observations149 on
the ambit of Hedley Byrne I50 are adopted.
Fell v. Brown 151 and Perring v. Rebutter152 afford judicial
recognition of a usage that had existed for many years previously.
G
137 145
[1914] A.C. 932. 5 H. & N. 890.
138 146
[1920] 3 K.B. 163. 9 App.Cas. 745, 752.
139 147
Ibid. 213. [1967] 1 Q.B. 443, 506F.
140 148
141
[1964] A.C. 465. 149
Ibid. 509F, 512A, 513B.
[1951] 2 K.B. 164; [1951] 1 All 15
Ibid. 514c.
E.R. 426, C.A. ° [1964] A.C. 465.
142 lsl
[1964] A.C. 465. Peake 131.
143 152
[1914] A.C. 932. 2 Mood. & R. 429.
144
[1920] 3 K.B. 163.
H. L. (E.) it i s incorrect to state as does the appellant that here is a new A

1967 ground of public policy first put forward by the Court of Appeal
m
Rondel 1966. When a case has been decided on the ground of public
Worsiey P o u c v t n a t ground should not lightly be changed by the courts.
If public opinion has radically altered in the interval it is the
province of the legislature to intervene. Once the grounds of public
policy have been formulated it is for the party who challenges g
such grounds to displace them. In the present case no new grounds
of public policy arise. The specific grounds put forward in Swinfen
V. Lord Chelmsford li3 are as relevant at the present time as they
were in 1860.
It is said that the public is being deprived of a right of action
against counsel, but the public is not being deprived of anything and c
has not been in this respect for at least 200 years since when it
has been consistently held that the public has no such right, and in
the interval, no member of the public has successfully challenged
the position.
It is important that nothing should be done which would impair
or endanger the due administration of justice. This factor is of jy
more importance now than it was in 1860. There is now organised
crime and professional criminals are defended day after day by
members of the Criminal Bar.
As to the duty to the public, counsel is bound to accept work
in any field in which he practices: see per Salmon LJ. 154 It is
contended (however) that the members of all professions hold E
themselves out to the whole world but in fact in all other professions
the members can pick and choose their clients. Further, it is no
answer to say that the Bar is protected by the intervention of a
solicitor for on the appellant's argument if a solicitor were inhibited
by the personality of a particular client that client would go
unrepresented. In criminal cases a large number of the clients are p
rogues and in many civil cases the clients are unreliable.
As to counsel's duty to the court: see Strauss v. Francis155;
Reg. v. Registrar of Greenwich County Court156; Rex v. Neal.157
and M. v. M. (No. I).158 In Rex v. Neal159 it was stated that it was
counsel's duty to draw attention to an irregularity in the proceedings
even if this was against the client's interest. See also the observa- G
tions in the courts below.160
153 158
5H. &N. 890. [1967] P. 313, 317B-D; [1967]
154
[1967] 1Q.B. 443, 519D. 2 W.L.R. 1333; [1967] 1 All E.R.
155
(1866) L.R. 1 Q.B. 379. 870.
156 159
157
(1885) 15 Q.B.D. 54, CA. 160
[1949] 2 K.B. 590, 596.
[1949] 2 K.B. 590; [1949] 2 All [1967] 1 Q.B. 443, 469A-^170A,
E.R. 438, C C A . 502; 512D-G, 517.
A It is in the public interest that all who take part in the H.L. (E.)
administration of justice should be free from suit. If it were not so 1967
counsel would be at peril from action from every disgruntled client. Rondel
As to the immunity of judges: see Scott v. Stansfield.1*1 It was worsley
at one time thought that a judge's immunity rested on Grown —
privilege and, accordingly, section 2 (5) of the Crown Proceedings
B Act, 1947, expressly negatives the right to bring proceedings against
any person discharging a judicial office.
As to the immunity of an advocate against an action for
slander: see Munsterw. Lamb.162
As to the immunity of witnesses: see Hargreaves V.
Bretherton 1M and Marrinan v. Vibart.1&i These are very strong
C cases and the grounds of decision are the same as those in Scott v.
Stansfield165 and Munster v. Lamb.166 The immunity as formu
lated in Marrinan v. Vibart m is very wide. It would cover negli
gent statements whether made in or out of court.
The position of counsel in criminal cases is particularly
vulnerable. Suppose, if there were no immunity, that counsel
D unsuccessfully defended a member of a criminal gang and that five
years later he successfully prosecuted a member of the same gang,
possibly the first mentioned member of the gang might bring
proceedings against counsel out of feelings of revenge.
It is said that immunity from suit is based on the importance
of maintaining freedom of speech but that is not the way it is
E formulated in the cases. It is also said that it is to protect persons
while they are performing their duty. But this contention also is
not supported by the authorities for it is not the duty of a witness
to commit perjury yet such a witness is immune from civil pro
ceedings brought against him in respect of it. The real grounds
are those given by Lord Denning M.R.168 and Salmon L.J.169 and
* they were the two heads of public policy adumbrated in Swinfen
v. Lord Chelmsford.170
It is in the interests of the state that there should be finality in
litigation. This is an important head of public policy. It is
the basis of the principle of estoppel by record and the basis of the
Limitation Acts. The principle has been applied mainly to the
question whether new trials should be allowed on the production of
fresh evidence. The courts are most reluctant to allow a retrial.
161 160
L.R. 3 Ex. 220. 11 Q.B.D. 588.
162 167
11 Q.B.D. 588. H963] 1 Q.B. 528.
163 168
[1959] 1 Q.B. 45. [1967] 1 Q.B. 443, 501G-502A.
164 169
[1963] 1 Q.B. 528. Ibid. .520B, C.
165 17
L.R. 3 Ex. 220. ° 5 H . & N . 890.
H. L. (E.) j j i e statement of principle propounded by Lord Loreburn L.C. A

1967 in Brown v. Deanm has always been followed. Meek v.
Rondel Fleming 17a is important not only on the question of when a new
iJ
Worsley ^ w ^ be g r a n t e d but also on that of counsel's duty to the court.
The same principle has been applied in those cases where a jury
man has not been permitted to question the verdict of the jury: see
Reg. v. Roads 173 and Boston v. W. S. Bagshaw & Sons.17* The B
reasoning of the Court of Appeal175 on this question is adopted.
It is the totality of the reasons which convince and not the grounds
considered separately.
It is said that counsel are not unique in having duties outside
their strictly professional duties. But counsel have a paramount
duty to the court. A doctor's paramount duty is to treat and cure C
his patient. He does not have a paramount duty to some third
party. It is conceded that an accountant owes a duty not to mislead
the Revenue, but he can choose his clients and in neither his case
nor that of the doctor does the finality of litigation factor arise.
There is no question of re-opening litigation that has already been
decided. D
As to the solicitors, it is true that in respect of court work it
may be said that a solicitor's position is anomalous but it does not
follow that counsel's position is anomalous. There have been
very few cases concerning negligence by solicitor advocates since
Stokes v. Trumper,176 which was decided over 100 years ago,
and that was a case covering the failure to put the correct E
interrogations and not one of advocacy as such. In Hatch
V. Lewis 177 the plaintiff received only nominal damages since he
was in fact guilty of the offence and had not suffered any damage by
his conviction. It is conceded that in respect of advocacy the same
grounds of public policy for granting immunity apply equally to
solicitors as to counsel in view of the fact that in county courts and F
magistrates' courts they have an equal right of audience.
As to the position in Victoria, the Victorian statute recognises
that the common law of England is different.
The American cases that have been cited do not assist the
appellant. In the United States a lawyer is not obliged to take
every client. He can decline to act for a potential client. ®
171
172
[1910] A.C. 373, 374, 375, H.L. " * [1966] 1 W.L.R. 1135 (Note);
[1961] 2 Q.B. 366, 377, 382— [1967]
175
2 All E.R. 87 (Note), C.A.
384; [1961] 3 W.L.R. 532; [1961] 3 [1967] 1 Q.B. 443, 503D—504D,
All E.R. 148. C.A. 517G-519O.
173 176
[1967] 2 Q.B. 108; [1967] 2 177
2 K. & J. 232.
2 W.L.R. 1014; [1967] 2 All E.R. 2 F. & F. 467.
84, C.A.
H L
A There are very strong grounds for preserving the immunity which - - <E-)
covers both court work and paper work. It is not disputed by the 1967
appellant that it is difficult to draw the line between the two types Rondel
of work. For example, what is the difference between counsel who worsley
advises a person on his title to land and that same counsel who
defends that person for trespass in respect of that land in con-
B sequence of giving negligent advice on the title thereto? The
difference is purely one of time. It is irrelevant whether the opinion
was written before or after the issue of a writ.
Further, when counsel writes an opinion he has in mind his
duty to the court and what is likely to happen if the case ever
comes to trial although there be no threat of action at the time the
C opinion is written. To take but the two examples, in advising on
title and on revenue matters it is impossible to draw the line
between litigious and non-litigious matters.
Counsel and solicitors are not in conflict; they give comple
mentary services to the public.
As to the Limitation Acts, counsel's liability would lie in tort
D and damages would be the gist of the action and the cause of action
would only arise when damage accrued: Darley Main Colliery Co.
V. Mitchell,1™ and that might not occur for years after the act of
negligence. Suppose counsel advises on a settlement to avoid
estate duty and that on the settlor's death it is found that estate
duty is payable, it is only at the settlor's death that counsel's liability
E arises for it is only at that date that the damage arises and, therefore,
he could not claim the protection of the Limitation Acts until the
damage was proved. In the case of a solicitor, however, the solicitor
is liable in contract from the date of the breach: Bean V. Wade " 9 ;
and thus in his case the liability under the Limitation Acts runs
from that date. It follows, therefore, that if there were no immunity,
F there might be many cases where counsel would be liable in damages
for giving advice where a solicitor giving the same advice would
not.
It is pertinent to observe that this particular liability could
follow counsel on to the Bench. See Plucknett's Concise History
of the Common Law, 3rd ed. (1940), p. 213, for observations on
G the co-operation of Bench and Bar in this country. The British
method of appointing judges is without equal. It is a matter of
consideration that if there is to be the fundamental change in the
law advocated by the appellant there arises the possibility of a judge
trying a case one day and appearing as a defendant in an action for
178 179
(1886) 11 App.Cas. 127, H.L. (1885) 2 T.L.R. 157, C.A.
H. L. (E.) negligence the next day possibly in respect of some advice he had " A.
1967 given years previously as a junior at the Bar.
Rondel If barristers were to become liable for negligence it would
Worsley result in a radical change in the structure of the Bar for barristers
— do not keep records.. It would inevitably lead to records being
taken of every opinion, conference and telephone conversation and
there would inevitably be a great expense in legal costs. B
All these matters are relevant to the question whether liability
for negligence for paper work should fall on counsel.
As to the respondent's first proposition, it was said that if the
House were in favour of the appellant on general principle the
question of the re-amended statement of claim should be remitted
to the master for him to decide whether it should be delivered. C
This course should not be adopted in view of the observations of the
Court of Appeal who acted in accordance with the decision in
Lawrartce V. Norreys 18° that the court has wide powers to strike
out a statement of claim.
[Reference was also made to Salmond on Torts, 14th ed., p. 11;
Crampton & Holt v. Ridley & Co.181; Finnegan v. Allen182]. D
Batt following. On the general question of principle in issue
here, it is pertinent to observe that in criminal matters counsel
would have to examine thoroughly the proofs of every witness to
ensure that no point was omitted.
Blom-Cooper in reply. As to paper work, it is not largely
confined to the Chancery Bar. There is a great deal of advisory E
work in the fields of international law, constitutional law, patents,
pensions and insurance.
It was said that barristers and solicitors are. complementary
but in many areas of work they are in competition, for example, in
company matters, in the whole field of tax, whilst in relation to
advocacy in county courts and magistrates' courts they are in ^
direct competition.
Emphasis was placed on the combination of barrister and
solicitor as affording protection to the lay client, but if a barrister
is immune the lay client is deprived of any remedy.
As to the dangers to the due administration of justice, if there
were no immunity arising from the fact that the Bench is chosen "
from the Bar the risk is minimal.
It was said that if there were no immunity attaching to paper
work the whole structure of the Bar would be changed. In the
180 182
(18.90) 15 App.Cas. 210, H.L. [1943] 1 K.B. 425; [1943] 1
181
(1887) 20 Q.B.D. 48. All E.R. 493. C.A.
H L
A appellant's submission it would change for the better since it might - - (E-l
lead to more adequate instructions being given to counsel by 1967
solicitors. Rondel
v
As regards the re-amended statement of claim, there was no w -.
application to strike out on the grounds that it was frivolous and —
vexatious or scandalous and no affidavit evidence was put forward
JJ on those grounds. The respondent took his stand on the question
of principle that counsel is immune from actions for negligence.
The law has never declared that counsel cannot be sued for
negligence either on the ground that he has no capacity to enter
into a contract or on the ground that it is against public policy.
It was contended that counsel does not assume responsibility within
Q the principle of Hedley Byrne.183 It is pertinent, therefore, to
consider the facts of the case. Heller and Partners Ltd. were not in
general relationship with Hedley Byrne and Co. Ltd.184 That case
concerned a special relationship. The relationship of barrister and
client and that of solicitor and client is a general relationship.
Further, Heller and Partners did not even know who would be
D relying on the reference. This raised the question of proximity.
Hedley Byrne 18s does not assist on the question of the assumption
of responsibility.
It is submitted that a professional man assumes responsibility
within the principle of Nocton v. Ashburton (Lord).1™ A
barrister's relationship with his client therefore comes within it and
E it is a liability in tort and not in contract. It matters not that there
is no contractual nexus or even that no contract can be entered
into. Compare the analogous position of the doctor treating the
unconscious accident victim in the street.
Hedley Byrne " 7 was not a decision that obviated the doctrine
of consideration because even if payments had been made there
F they would have been payments to the National Provincial Bank
and not to Hedley Byrne and Co.
The relationship between counsel and client is not a one-sided
relationship even if the client cannot enter into a contract to pay
the fees, since, (i) the solicitor can sue the client to recover the
amount of his fees including those of counsel; (ii) counsel's fees
G are often prepaid.
As regards the position of infants, an infant who has ordered
and received necessaries is liable to pay for them not by virtue of
any contract but because they have been supplied to him. In
183 186
[1964] A.C. 465. [1914] A.C. 932.
184 187
Ibid. 529. [1964] A.C. 465.
185
[1964] A.C. 465.
1 A.C. 1969. 8
22i HOUSE OF LORDS [1969]
Hi"l»i(E.) general, :an infant cannot be sued but'be can' sue; therefore, the l\
1967 incapacity"1 of infants is only a partial incapacity"and is not like
Rondel the total incapacity of persons of unsound mind or of enemy
_,•*•,■ aliens.- -,:...
Woreley
—- -•'; Counsel is liable because he proffers his services and these
requirethe exercise of skill and judgment.
'"• As to the assumption of responsibility, there could not be a JJ
clearer assumption of responsibility than that of counsel appearing
On behalf of a party to a suit: Swinfen v. Lord Chelmsford.™*
Reliance is placed on Smith v. Auckland Hospital Board 189 for
thei ambit of the decision in Hedley Byrne.19- . ., .
It-is emphasised that the legal responsibility that counsel
assumes arises out of a fiduciary duty of the kind adumbrated in Q
Norton V. Ashburton (Lord)191 and does not arise in contract.
The alleged immunity and the incapacity to sue for fees are not
obverse sides of the same coin. The incapacity to sue stems from
the professional status of counsel. The immunity can rest only
on some' ground of public policy. It is therefore necessary to
determine whether immunity has been established and this jy
involves ascertaining what was decided in Swinfen. v. Lord
Chelmsford 192 and Kennedy V. Broun.1'3
Swinfen v. Lord Chelmsford194 is clearly restricted to the
proposition that counsel has authority over the conduct of the case
in court on behalf of his client. In so far as it decided that
counsel cannot be sued in negligence for his conduct in court ■£
it is obiter dicta. The old cases of Bradish v. Gee195 and Burness
v. Morris1** were not overruled. There has never been a case,
until the decision of Lawton J. below, that decided that there
was a general rule that professional men are liable for negligence
to their client's but that counsel are an exception to the rule. The
observations of Pollock C.B* in Swinfen v: Lord Chelmsford197 p
are only explicable on the ground that the majority of the court
were deciding the case on a ground narrower than the general
proposition that counsel are immune from suit.
If public policy were the ground for immunity it would haVe
applied in 1861 equally to solicitors in the same way as it is alleged
it applied to counsel. In Hatch v. Lewis,1** Pollock C.B. held that Q
a solicitor was liable in negligence for his conduct arid management
- »» 5H,'&N. : 890. : • J " 5 H . & N. 890. ■ V
189 195
[1965] N.Z.L.R. 191. 1 Amb. 229.
190 196
[1964] A.C. 465. 11 Dunlop 1258.
191 197
[1914] A.C. 932. 5 H. & N, ? 890 r 924. ' l
192 198 !
5 H. &N.890. 2 F. & F. 467.
193
13 C . B . N . S . 6 7 7 . ■ • ■' ■
A of a case and therefore it is pertinent to ask if he was dealing with H- L. (E.)

the wider issue in Swinfen v. Lord Chelmsford199 why was it that 1967
no reference was there made to Hatch v. Lewis200? [Reference Rondel
was made to Hawkins v. Harwood.201] In the three Scottish cases woreley
of the 1850's. concerning attorneys (Ritchie v. Macrosty,202 ——
Urquhart v. Grigor203 and Smith v. Grant and Leslie2M) there
g is no mention of considerations of public policy and this applies to
all the solicitor cases. Both Lawton J. and Salmon L.J. considered
that Swinfen v. Lord Chelmsford205 was decided on a narrow
issue.
As to Kennedy v. Broun,200 all that was decided there was that
counsel cannot sue for his fees. In Reg. v. Doutre207 it was stated
Q that it was a rule of etiquette that has hardened into a rule of
law.
Throughout the 19th century cases (including Swinfen v. Lord
Chdmsford208) the analogy between the position of barristers and
physicians was consistently maintained: see, for example, (including
some earlier cases) Chorley v. Bolcot20°; Turner y. Phillips210;
D Morris v. Hunt211; Voucher v. Norman212; Veitch v. Russell.2"
The whole question of immunity has been bedevilled by the
proposition that counsel cannot sue for fees. The real reason for
this inability was and is the status of a barrister. The 1,000 or so
Fellows of the Royal College of Physicians, who, by virtue of their
governing body exercising a right given by statute, cannot sue for
£ fees are comparable to the 2,000 or more practising barristers who
cannot sue by virtue of a rule of the common law.
As to the implied disclaimer of responsibility, Texas Tunnelling
Co: V. City of Chattanooga21i indicates that those who rely on the
skill of professional men may have a right to claim for negligence
even although the professional man "purports, to disclaim, Even
■p though there is an express disclaimer it is inoperative. A fortiori
where the disclaimer is unexpressed.
Public policy
The immunity claimed has been equated with sovereign
iinmunity. -Diplomats, however, are not immune from legal liability
Q but merely immune from suit.
. 199 . 5 H . &N.890. :. 207
9 App.Cas.745, 751.'
200 208
2 F. & F. 467. . . 5 H. & N. 890.
201 209
4 Ex. 503. 4 Dufn. & E. (Term) 317. "
202 210
16 Dunlop 554. Peake 166.
203 211
19 Dunlop 853. 1 Chit. 544.
204 212
20 Dunlop 1077.- 3 B. & C.-744.
205 213
5 H . & N . 890. ■ - (•■■■ 13Q.B. 928.
206 21
13 C.B.N.S. 677. * 204 Fed.Sup: 821. ■
224 HOUSE OF LORDS [19691
H. L. (E.) It was said that if there were no immunity convicted criminals A

1967 would take the opportunity to sue counsel. But if this is a real
R0ndel fear it applies equally to solicitors. In any event it is pertinent to
Worele remember the protection afforded by the Prison Rules: see Rule
37 which provides that a prisoner must first obtain the permission
of the Secretary of State before he can sue.
True, counsel owes a duty to the court but equally does a JJ
solicitor. Thus in respect of a discretion statement it is the
solicitor's duty to include every confession of adultery made by
his client.
It was also said that members of the Bar cannot choose their
clients and that therefore counsel are in a unique position. But
in respect of large areas of their work doctors are in precisely the C
same position.
The appellant concedes that there is a possibility of a conflict of
duty arising but so it can with doctors, for example, in relation to
abortion, in the treatment of drug addicts by the giving of drugs that
accelerate death.
If it be the respondent's contention that there have been no D
solicitor-advocate cases since Stokes v. Trumper215 all that can be
asserted is that there have been no reported cases.
Reliance is placed on the Victorian statute as showing how
liability works in a common law jurisdiction.
As to usage, the answer is it is not Volens by the client but at
the most Nolens. E
There is no single decision that establishes immunity for paper
work. The nearest case is that of Perring v. Rebutter216 in 1842
which related to a certificated pleader. Immunity in this field cannot
be spelt out of Swinfen v. Lord Chelmsford2" coupled with
Kennedy V. Broun.218
The doctrine of public policy cannot apply to paper work, for F
all the grounds that have been put forward in support of its appli
cation to advocacy are inoperative in the former field save that
in both cases counsel owes a duty to the public to exercise care and
skill, but that applies to every professional man. Nor does the
doctrine apply in respect of advocacy for if it did it would have to
extend to solicitors both in England and Scotland. For the G
solicitor cases on various aspects of negligence: see Swannell v.
Ellis21*; Fergusson v. Lewis220; Hatch v. Lewis221; Reece v.
215 219
2K. & J. 232. 1 Bing. 347.
216 220
2 Mood & R. 429. 14 LJ. 700.
217 221
5 H. & N. 890. 2 F. & F. 467.
218
13 C.B.N.S. 677.
1 A.C. AND PRIVY, COUNCIL 225
A Rigby222; Mercer v. King223; Hawkins v. Harwood22i; Scudder v. H. L.(B.)

Prothero & Prothero.225 All these cases were concerned with the 1967
preparation of litigation up to and including the court room. Rondel
Similar cases in Scotland are: Ritchie v. Macrosty226; Urquhart v. w0reiey
Grigor227; Smith v. Grant and Leslie228; Murray v. Reilly.229
The above cases show that a solicitor is liable for negligence
g up to the door of the court. The question then arises: is the door
of the court the dividing line? It is submitted it is not: see
Montriou V. Jefierys230 and Stokes v. Trumper.231 The latter
case,231 in which Purves v. Landell232 was cited to Kindersley V.-C,
strongly supports the proposition that a solicitor is liable for negli
gent advocacy.
Q It cannot be suggested that liability does not extend to solicitors
and therefore any extension of the doctrine of public policy to
include immunity for counsel must be spurious.
It is conceded that professional men must be protected against
frivolous claims. There are two ways whereby this may be
achieved: (a) insurance; (b) the rules of civil procedure. The
j) rules act as a sieve. The appellant also concedes that the fact that
counsel are liable for negligence does affect the administration of
justice. But, on the other hand, the liability is no more onerous
than it is in other professions.
In conclusion, what is at stake here is the respect of the public
for the legal system. The legal system may be eroded by lack of
g confidence. This could arise: (a) by a spate of successful actions
for negligence against members of the Bar. (b) By perpetuating an
anomolous privilege. There should be no basis for the public
belief that the Bar is insulated from the general principle that
professional men are liable for negligence.
Their Lordships took time for consideration.
F
November 22, 1967. LORD REID. My Lords, in 1959 the
appellant was charged at the Central Criminal Court with causing
grievous bodily harm to one Manning. He was not given legal aid
but after the case had proceeded for some time he was informed
that he could have a " dock brief." He chose the respondent to be
G his counsel and, in accordance with his duty as a barrister, the
respondent agreed to act for him. During an adjournment he gave
222 228
(1821) 4 B. & Aid. 202. 20 Dunlop 1077.
223 229
1 F. &F. 490. 1963 S.L.T. (Notes) 49.
230
224 • 4 E X 503. 2C &P 113
225 231
The Time's, March 16, 1966. 2 K. & J.' 232.'
226 232
16 Dunlop 554. 12 CI. & F . 91.
227
19 Dunlop 853.
H.L.(E.) t 0 the respondent his account of the affair. T h e respondent then A.

1967 cross-examined the Crown witnesses and called the appellant and
Rondel another witness. T h e appellant was convicted and it is plain that
Wcwsley he h a d no real defence. But he was much aggrieved by evidence
, —— that he h a d used a knife; he wanted to establish that he h a d
LORD REID
inflicted Manning's injuries with his hands alone, or by biting, a n d
apparently the respondent did not ask all the questions or lead all B
the evidence he h a d suggested.
I n February, 1965, the appellant raised the present action. His
original statement of claim, apparently prepared by himself, was
barely intelligible. I n April the respondent sought a n order that
the statement of claim be struck out as disclosing no cause of
action and also as being irregular. I n M a y the master ordered that C
the statement of claim be struck out a n d the action dismissed. T h e
appellant appealed and Browne J. asked the Official Solicitor to
instruct counsel to act as amici curiae.
I n November, 1965, Lawton J. heard argument for five days
on the question whether the statement of claim disclosed any cause
of action and, in a learned a n d elaborate j u d g m e n t 1 delivered on D
December 2 1 , 1965, he held that it did not because a barrister
cannot be sued by his client for negligence or lack of skill in pre
senting his client's case in court. I shall not deal with attempts
to improve the statement of claim by amendment. A n d I shall not
deal with the facts beyond saying that possibly a case could be
made out to the effect that the respondent made some error of E
judgment—I a m not in a position to express a n opinion about that
—but there is nothing in the facts before us to indicate any pro
fessional negligence or lack of skill on his part, and nothing to
indicate that the appellant would have been any better off if the
respondent had acted differently.
Leave to appeal was given and the Court of A p p e a l 2 (Lord F
Denning M . R . and Danckwerts and Salmon L J J . ) on October 20,
1966, dismissed the appeal. Salmon L.J. said, 3 I think justly, that
the appellant's claim was clearly as devoid of merit as it was of
any prospect of success. But in view of the importance of the
question of law involved this House gave leave to the appellant to
appeal. G
The argument before your Lordships has been directed to the
general question of barristers' liability a n d has ranged widely. F o r
1 2
[1967] 1 Q.B. 443, 452; [1966] [1967] 1 Q.B. 443, 493; [1966]
2 W.L.R. 300; [1966] 1 All E.R. 467. 3 W.L.R. 950; [1966] 3 All E.R. 657,
C.A.
3
[1967] 1 Q.B. 443, 516.
I A.G. AND PRIVY. COUNCIL 227
A the appellant it was.said that all other professional men, including H;L.(E.)
solicitors, are liable to be sued for damages if loss is caused to 1967
their clients by their lack of professional skill or by their failure Rondel
to exercise due care; so why should not barristers be under the wwsiey
same liability? For the respondent it has been, shown that for at , ——
LORD RBID
least two hundred years no judge or text writer has questioned the —
B 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 many quarters whether that rule is
G justifiable in present day conditions in this country. 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 and Scotland,
between which there appears to me to be no relevant difference. I
do not know enough about conditions in any other country to
express any opinion as to what public policy may there require.
D There is no doubt about the position and duties of a barrister
or advocate appearing in court on behalf of a client. It has long
been recognised that no counsel is entitled to refuse to act in a
sphere in which he practises, 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 duty must continue:
E justice cannot be done and certainly cannot be seen to be done
otherwise. If counsel is bound to act for such a person, no reason
able man could think the less of any counsel because of his
association with such a client, but, if counsel could pick and
choose, his reputation might suffer if he chose to act for such a
client, and the client might have great difficulty in obtaining proper
F legal assistance.
Every counsel has a duty to his client fearlessly to raise every
issue, advance every argument, and.ask every question, however
distasteful, which he thinks will help his client's case: But, as an
officer of the court concerned in the administration, of justice, he
has an overriding duty to the court, to the standards of his pro*
fession, and to the public, which may and often does lead to a
conflict with his client's wishes or with what the client thinks are
his personal interests. Counsel. must not mislead the court, he
must not lend himself to casting aspersions on the other party or
witnesses for which there is no sufficient basis in the information
in his possession, he must riot withhold authorities or documents
228 . HOUSE OF LORDS .[1969]
H. L.CE.) which may tell against his clients but which the law or the stan- A.
1967 dards of his profession require him to produce. A n d by so acting
Rondei h e m a y well incur the displeasure o r worse of his client so that if
Worsley * e c a ^ e *s * o s t ' ^ s c u e n t would or might seek legal redress if that
, -— were open r
to him.
LORDREJD
— Is it in the public interest that barristers and advocates should
be protected against such actions? Like so many questions which B
raise the public interest, a decision one way will cause hardships to
individuals while a decision the other way will involve disadvan
tage to the public interest. O n the one hand, if the existing rule of
immunity continues there will be cases, rare though they m a y 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 C
to be whether the abolition of the rule would probably be attended
by such disadvantage to the public interest as to make its retention
clearly justifiable. I would not expect any counsel to be influenced
by the possibility of an action being raised against him to such a n
extent that he would knowingly depart from his duty to the court
or to his profession. But although the line between proper a n d D
improper conduct may be easy to state in general terms, it is by no
means easy to draw in many borderline cases. A t present it can
be said with confidence in this country that where there is any
doubt the vast majority of counsel put their public duty before the
apparent interests of their clients. Otherwise there would not be
that implicit trust between the Bench and the Bar which does so E
much to promote the smooth and speedy conduct of the administra
tion of justice. There may be other countries where conditions are
different and there public policy may point in a different direction.
But here it would be a grave and dangerous step to make any
change which would imperil in any way the confidence which every
court rightly puts in all counsel who appear before it. F
A n d there is another factor which I fear might operate in a
much greater number of cases. Every counsel in practice knows that
daily he is faced with the question whether in his client's interest
he should raise a new issue, put another witness in the box, o r ask
further questions of the witness whom he is examining or cross-
examining. That is seldom an easy question but I think that most
experienced counsel would agree that the golden rule is—when in
doubt stop. F a r more cases have been lost by going on too long
than by stopping too soon. But the client does not know that. T o
him brevity may indicate incompetence or negligence and some
times stopping too soon is an error of judgment. So I think it not
H L (E
A at all improbable that the possibility of being sued for negligence - - >
would at least subconsciously lead some counsel to undue prolixity 1967
which would not only be harmful to the client but against the Rondel
public interest in prolonging trials. Many experienced lawyers woîey
already think that the lengthening of trials is not leading to any ——
closer approximation to ideal justice. —
B Immunity from action by the client is not the only way in which
it has been thought proper to protect counsel. It has long been
established that judge, witnesses and barristers alike have absolute
privilege with regard to what is said by them in court: and for
reasons similar to those which apply to proceedings in Parliament.
If there was ev6r any doubt about that it was removed by the
decision in Munster v. Lamb4 where a solicitor was sued for
defamatory words which he had spoken while defending an accused
person. Brett M.R. said5 that he assumed that the words were
spoken maliciously, without any justification or excuse, from the
indirect motive of personal ill will or anger towards the prosecutor,
j) and that the words were irrelevant to every issue of fact in the case.
Yet it was held that there was absolute privilege. He said 6 :
" To my mind it is illogical to argue that the protection of
privilege ought not to exist for counsel, who deliberately and
maliciously slanders another person. The reason of the rule
is, that a counsel, who is not malicious and who is acting bona
„ fide, may not be in danger of having actions brought against
b
him."
And Fry L.J., dealing with the analogous cases of judges and
witnesses, said 7 :
" The rule of law exists, not because the conduct of those
persons ought not of itself to be actionable, but because if
P their conduct was actionable, actions would be brought against
judges and witnesses in cases in which they had not spoken
with malice, in which they had not spoken with falsehood. It
is not a desire to prevent actions from being brought in cases
where they ought to be maintained that has led to the adop
tion of the present rule of law; but it is the fear that if the rule
were otherwise, numerous actions would be brought against
r persons who were merely discharging their duty. It must
° always be borne in mind that it is not intended to protect
malicious and untruthful persons, but that it is intended to
protect persons acting bona fide, who under a different rule
would be liable, not perhaps to verdicts and judgments against
them, but to the vexation of defending actions."
* (1883) 11 Q.B.D. 588, C.A. « Ibid. 604.
8 7
Ibid. 599. Ibid. 607.
HiL.(E.) It would, in my view, be incongruous if counsel were immune A

1967 from action by any one other than his client in respect of his
Rondel conduct in court even where that conduct arose from malice, but
vet
Wor'siey liat>le to be sued by his client for negligence. And all the
—— arguments in the passages which I have just cited seem to me to be
at least equally applicable to the present question.
There are other arguments which support the continuance of B
the present rule: they do not appear to me to be conclusive, but
they do have weight. I shall only mention one. Suppose that, as in
the present case, a convicted man sues his counsel. To succeed he
must show not only that his counsel was guilty of professional
negligence, but also that that negligence caused hjm loss. The loss
would be the fact that he was wrongly convicted by reason of his G
counsel's negligence. So after the plaintiff's appeal against con
viction had been dismissed by the Court of Criminal Appeal, the
whole case would in effect have to be retried in a civil court where
the standard of proof is different. That is something one would not
contemplate with equanimity unless there is a real need for it.
So the position appears to me to be this: if the present rule D
were changed there would at least be a grave risk of consequences
much against the public interest. And what is to be the advantage?
I do not think that it is enough to say that there might—or even
would—be an occasional case where some client would recover
damages from his counsel. There must be more than that to
justify incurring the disadvantages. And I do not believe that E
there would be more than a very rare case where a client could
succeed in such an action, although there might be a number of
cases where the attempt was made. It would be absurd to say that
there are no members of the Bar who might at some time fall short
of a reasonable standard of skill and care. But the practising Bar
is limited in numbers and barristers do not remain in practice F
unless they receive instructions from solicitors. And the onus of
proving professional negligence over and above errors of judgment
is a heavy one.
I think that some assistance can be got from looking at the
record of solicitors. They are liable to be sued for negligence in
conducting cases and they do conduct an immense number of cases G
in the lower courts. But successful claims against them for negli
gence in doing the kind of work which a barrister would do if
instructed in the case appear to be very few in number. As regards
reported cases, there was a case in 1855—Stokes v. Trumper8—but
8
■ (1855) 2 K. & J. 232!
A the researches of counsel have only discovered one recent reported H. L. (E.)
case—Scudder v. Prothero and Prothero,9 reported in " The Times " 1967
newspaper of March 16, 1966. I find this case not easy to under- Rondel
stand: it may have been wrongly decided. There have also been Wo ^ le
one or two Scottish cases where a solicitor has been held negligent —
in carrying out work in court which would have been done by an °^f_ ID
B advocate if counsel had been instructed. There were also put before
your Lordships, by agreement of counsel, notes of a number of
claims against solicitors which had been or were in course of being
settled by an insurance company. If these notes can be treated as a
random sample, they show that among some 300 claims only about
8 are in respect of negligence by a solicitor in carrying out work
C which would have been within the province of a barrister conduct
ing litigation—a proportion of less than three per cent.
For the reasons which I have given I am of opinion that it is
in the public interest to retain the existing immunity of barristers
from action by clients for professional negligence, at least so far
as it relates to their work in conducting litigation. And that would
D be sufficient to require the dismissal of the present appeal. But to
leave the matter there would, I fear, lead to some misunderstanding
or even confusion.
The main reasons on which I have based my opinion relate
to the position of counsel while engaged in litigation, when his
public duty and his duty to his client may conflict. But there are
E many kinds of work undertaken by counsel where no such conflict
would emerge, and there I see little reason why the liability of
counsel should be different from that of members of any other
profession who give their professional advice and services to their
clients. The members of every profession are bound to act honour
ably and in accordance with the recognised standards of their
p
profession. But that does not, in my view, give rise to any such
conflict of duties as can confront counsel while engaged in litigation.
It was argued that, if counsel were to have immunity with
regard to one part of their work but not with regard to other
parts, there would be great difficulty in distinguishing between
G one case and another or determining where the immunity is to
stop. I do .not think so. . The same public duty applies when
drawing pleadings or conducting subsequent stages in a case as
applies to counsel's conduct during the trial. And there will be
cases where the same will apply at a stage when litigation is
9
" The Times," March 16, 1966.
H. L.(E.) impending. But there are extensive fields of advisory work or \

1967 work in drafting or revising documents where that does not apply.
Rondel Then, some importance was attached in argument to the rule
Woreiey that counsel cannot sue for their fees. That rule has a long history
anc
LORDREID * before the decision of this House in Hedley Byrne & Co. Ltd.
v. Heller & Partners Ltd.10 it was regarded as a reason for the
continuance of the other rule that counsel cannot be sued for B
professional negligence. But the two rules now have no necessary
connection. The existence of the rule preventing counsel from
suing for fees may still have fiscal and other consequences, but
I do not think that it is now relevant when considering whether
it should be possible to sue counsel for professional negligence.
In fact the rule has very little practical importance in this connec- C
tion for its abolition would very seldom enable counsel to recover
fees which they do not at present receive.
Finally, I must deal with a powerful argument for the appellant
to the effect that, if it is unnecessary to protect solicitors by giving
them immunity from action by their clients, it cannot be necessary
to protect barristers in that way. But I would turn the argument D
the other way: if it is in the public interest to protect counsel,
what good reason is there for withholding similar protection from
solicitors? This matter has never been fully considered. As I have
already stated, there have been very few cases in which the ques
tion could have been raised. And hitherto, in England at least,
cases conducted by solicitors have generally been of comparatively E
minor importance. There are differences between the position of
barristers and solicitors; not all the arguments which I have
adduced apply to solicitors. But the case for immunity of counsel
appears to me to be so strong that I would find it difficult to regard
those differences as sufficient to justify a different rule for solici
tors. I have already shown that solicitors have the same absolute ^
privilege as counsel when conducting a case. So my present view
is that the public interest does require that a solicitor should not
be liable to be sued for negligence in carrying out work in litiga
tion which would have been carried out by counsel if counsel had
been engaged in the case.
G
LORD MORRIS OF BORTH-Y-GEST. My lords, this interlocutory
appeal, which raises issues of considerable importance, has been
aided in its progress to your Lordships' House by notable manifes
tations of patience and indulgence. The issues are of greater
«• [1964] A.C. 465; [1963] W.L.R. 101; [1963] 2 All E.R. 575, H.L.
A consequence than would seem apparent from a narrative of the H.L.(E.)

somewhat sombre facts out of which they have, though tardily, 1967
emerged. It was as far back as April, 1959, that the appellant went R^dei
early one morning to a house in West London. A man named worsley
Manning was doorkeeper at the house. At the conclusion of . ——
LoRD
. , , * , ,, i * MORRIS
a violent altercation between the appellant and Manning the latter OF
0RTH Y EST
B had the lobe of an ear bitten off and his hand very severely ""
damaged. The appellant was virtually unhurt. He has said that
he went to the house on behalf of its landlord, a man named
Rachman. He has resented any suggestion that he used a knife
and has proclaimed that, by the use only of the strength of his own
hands, he tore Manning's hand in half. A consequence of the
G encounter was that the appellant was charged. Being committed to
the Central Criminal Court he was arraigned before the Recorder
of London on Thursday, May 28, 1959. There were two counts
in the indictment. The first was that he caused grievous bodily
harm to Manning with intent to do him grievous bodily harm: the
second was that he assaulted Manning occasioning actual bodily
D harm. The prosecution case was opened, and then the first witness
was called and examined. At that stage the appellant asked for legal
aid. The recorder refused that application, but informed the appel
lant that he could instruct one of the counsel who were in court
to appear for him. The appellant desired to have the respondent
as his counsel and the respondent, in accordance with the
• practice and etiquette of the Bar, agreed to act. A fee of £2 4s. 6d.
was paid. The court granted an adjournment of an hour to enable
the appellant to instruct the respondent. In fact the trial was not
resumed until the next day. The respondent cross-examined the
witnesses for the prosecution. The appellant gave evidence and
another witness was called. The respondent addressed the jury.
After a summing-up by the recorder the appellant was convicted
by the jury on the first count: the recorder relieved the jury of
the necessity of recording a verdict on the second and less serious
count. The appellant was sentenced to eighteen months' imprison
ment. The appellant applied to the Court of Criminal Appeal for
_ leave to appeal. Leave was refused.
Time went by until—nearly six years after his trial—the appel
lant issued a writ against the respondent.
The reflection is prompted as to whether there is truth in the
aphorism that long dormant causes often have more of cruelty
than of justice in them. The appellant claimed damages for
professional negligence. His writ was on February 15, 1965. The
H. L. (E.) appellant delivered an undated statement of claim. The respondent A

1967 took out a summons before the master for an order that the state-
Rondel ment of claim be struck out as (i) disclosing no reasonable cause
Wor'sley °f a c t i ° n under R.S.C., Ord. 18, r. 19 (1) (a), and (ii) being irregular
¥ -rr in form. On May 17, 1965, the master ordered that the statement
LORD MORRIS . * .
OF of claim be struck out and that the action be dismissed with costs.
B ORTH~ Y~CTEST
On appeal to the judge in chambers the learned judge (Browne J.) B

adjourned the hearing into open court and asked the Official Solici
tor to instruct leading and junior counsel to appeal as amici curiae.
Thereafter the matter was heard by Lawton J. The hearing lasted
four days. At the end of the first day's hearing the learned judge
afforded the appellant an opportunity of putting his statement of
claim into a more intelligible shape. On the second day the C
appellant handed in a document that he wished to have treated as
an amended statement of claim. The learned judge allowed that
document to stand as his amended statement of claim subject to
the omission of an allegation of fraud which it was clear that
the appellant neither desired nor intended to make. The amended
statement of claim was held by the learned judge u to be "well- D
nigh unintelligible." It followed that it had to be struck out as not
complying in essential matters with the Rules of Court and as
being embarrassing both to the court and to the defendant. The
correctness of the decision of the learned judge to strike out both
the original and the amended statement of claim had not been
challenged. The learned judge went on to consider whether, there- E
fore, he should affirm the master's order that the action be
dismissed. He concluded 12 that " if it was possible to salvage
something out of the plaintiff's messy verbiage which would
support a cause of action " then it would be just that " he should
be given yet another chance to get his claim in order." Apparently
r
at that stage the appellant was offered another adjournment in
order to re-amend his statement of claim: he declined the offer
and was content to stand upon his amended statement of claim.
What the learned judge did was to consider whether, if a statement
of claim could be framed in this case which disclosed a cause of
. . . I
action for damages for negligence, an action would lie against a Q

barrister for negligence in and about his conduct of a client's case
in court. Concluding that it would not, he held that there would
be no point in giving the appellant leave to amend. He therefore
dismissed the appeal. , . ' . . '
:
" ' [1967] IQ.B:443, 453D. '' ' « Ibid. 453F.
1 A.C. AND. PRIVY COUNCIL 235
A /!. The appellant applied to the Court of. Appeal for leave to' ft-J*.iB5
appeal. He was granted leave. The appeal was heard on.four 1967
days in June, 1.966: The appellant appeared personally but his Rondel
solicitor tendered a lengthy, reasoned document .to the court woreley
setting out arguments and authorities.. Leading and junior counsel ==—
were instructed by the Official Solicitor to appear as amici curiae. OF,
B On the fourth day of the hearing a draft re-amended statement of ___
claim (prepared by the appellant's solicitor) was presented to the
Court of Appeal and leave to serve it was sought. Lord Denning,
M.R- said13 that, if an action does lie against a barrister for
negligence in the conduct of a case, the draft re-amended statement
of claim did as a document disclose a cause of action. He held,
C however, as did Danckwerts and Salmon L.JJ., that no such action
does lie. Accordingly the application for leave to serve the re-
amended statement of claim did not arise for decision. Salmon L.J.
added," however, that though he would agree that the new
document was "technically in order" he would have been
unwilling to give leave to. serve the re-amended statement of claim
D on the ground that " it would be most unjust at this stage to allow
this, re-amended statement of claim to be delivered some seven
and a half years after the plaintiff's claim is alleged to have arisen
in an action which is clearly as devoid of merit as it. is of any
prospect of success." Leave to appeal having been given by this
House, application was made for leave to serve the re-amended
E statement of claim under Order 20, rule 5, of the Rules of the
Supreme Court, 1965. On behalf of the appellant it was, however,
suggested that if the appellant's arguments prevailed the case
should be referred back for a decision as to whether leave should
be given to serve the re-amended statement of claim.
. It is in this somewhat uninspiring setting that a question is
F presented for decision that for long has been generally regarded
as well settled. It must be decided without regard to the merits or
demerits or the tensions of any particular case. As illustrative,
however, of a type of possible action which calls for examination
the complaints of the appellant in this case as they have emerged
in the draft of the potential re-amended statement of claim merit
G examination. The substance of them was that the respondent
failed to put certain questions to witnesses or .to call, or to take
the necessary steps to call, certain witnesses.' There had never
been any doubt that it was the appellant who. caused the very
severe injury to Manning's hand or that it was he .whq.bitoff the
13
[1967] 1 Q.B. 4950r496A. ~ .-} <■ ; »f Ibid; 516B, C.
H.L.CE.) i 0 be of Manning's ear. The appellant's case was that he had only A
196? acted in self-defence. He now complains that after he had
Rondei instructed the respondent as to the facts which he said supported
Woisley *"s case the respondent (a) failed in examining or re-examining
T —- a defence witness to bring out that Manning had associates or
LORD MORRIS ° °
OP mends at the scene of the incident who could have helped him
in a fight; (b) failed to cross-examine Manning or a doctor who B
was a prosecution witness as to the impossibility of the wound
having been inflicted by a knife or similar weapon; (c) failed to
elicit evidence from the witnesses at the trial or to call or get
witnesses to prove that the appellant (as rent collector and care
taker for Rachman) had authority to go to the house in question.
The complaint of the appellant was that as a result of these C
omissions he was wrongly convicted. It may well be open to
doubt whether evidence as to some of the matters referred to
would have been admissible but I find it unnecessary to consider
this point.
The searching and exhaustive review of the relevant authorities
which was a feature of the careful addresses of learned counsel D
revealed with clarity (a) that it has for long been considered to be
settled law that a barrister may not and does not enter into any
contract which enables him to sue for fees and, (b) that it has for
long been considered to be settled law that an action alleging
negligence against a barrister may not be brought. In this case the
first of these has not been challenged. Learned counsel for the E
appellant (while reserving a contention that a barrister could enter
into a special contract) was content to accept that it is the law
today that a barrister cannot sue for fees and that this inability
rests on a rule of etiquette which has now hardened into a rule of
law. As it was no part of the argument for the appellant to
suggest that this rule of law should now be re-examined or should ^
be reversed it is not necessary to probe deeply into the authorities
which recognise it nor to consider whether the reasons upon which
it has been based possess today any current validity. Suffice it to
say that the rule existed in 1742 when in Thornhill v. Evans"
Lord Hardwicke L.C. proclaimed: Q
" Can it be thought that this court will suffer a gentleman
of the bar to maintain an action for fees, which is quiddam
honorarium or, if he happens to be a mortgagee, to insist upon
. more than the legal interest, under pretence of gratuity or
fees for business formerly done in the way of a counsel?"
"(1742) 2 Atk. 330, 332.
A Lord Kenyon in 1792, in Turner v. Philipps,™ mentioned the H!L-(E.)

general opinion of the profession that the fees of barristers and 1967
physicians were as a present by the client and not a payment or Rîd
hire for their labour. I do not find it necessary to refer to the worsley
various later statutory provisions beginning with an Act in 1858
'LORD MORRIS
[21 & 22 Vict. c. 90] which have brought it about that physicians 0F
B (apart from Fellows of the Royal College of Physicians) may now BORTH-Y-GEST
sue for professional fees. There are decisions which show that
physicians could be held liable for lack of care and skill even
at dates when they could not sue for their fees. The disability of
physicians to sue for fees existed in 1791 when the case of Chorley
v. Bolcot17 was decided. It was stated1S that if their fees were
C other than honorary, physicians would be placed upon " a less
respectable footing in society " than that in which they were then
held. In that case it was said in argument that the comparable
disability of barristers was founded on grounds of public policy.
In 1819 in Morris v. Huntia Bayley J. stated that barristers cannot
sue for their fees. In Toucher v. Norman2° in 1825 it was held
D that one who was a certificated conveyancer but who was not a
barrister could maintain an action to recover compensation for
work done and it was said 21 that both physicians and barristers
who acted " with a view to an honorary reward " were exceptions
to the general rule that one who bestows his labour for another
has a right to recover compensation. A physician still had no
E right of action for fees when in 1842 the case of Veitch v.
Russell22 was decided. Lord Denman CJ. said 23 :
" It must be assumed as clear that physicians and counsel
usually perform their duties without having a legal title to
remuneration. Such has been the general understanding."
He did add,23 however:
■p
" To prevent that from operating, some express agree
ment must be shown: but, in considering whether such
an agreement existed, we cannot lose sight of the general
understanding."
The claim that was presented by the diligent barrister Mr.
Kennedy in 1862 was under an account stated. He had left his
G practice in Birmingham and taken chambers in London in order
to devote himself to and to assume control of the legal affairs of
the pertinacious Mrs.. Swinfen. Due to his exertions she retained
16 20
(1792) Peake 166. (1825) 3 B. & C. 744.
17 21
(1791) 4 Dure. & E. 317. Ibid. 745.
18 22
Ibid. 318. (1842) 3 Q.B. 928.
19 23
(1819) 1 Chit 544, 551. Ibid. 936.
238 JiHOUSE OF. LORDS [1969]
H.L.(E.) possession of her estates At the trial of the case (Kennedy v. j^

1967 Broun)2* before Cockburn C J . and a jury the summing-up began
Rondel with this passage 25 :. .: .. , . ■.
v.
Woreley ■ "You have been truly told by the defendants' counsel
l
LORDMORMS ^ a t v o u c a n n o t t a ^ e m t 0 consideration the services which
OF have been rendered. The only claim of the plaintiff is upon
BORTH-Y-GEST a n a c c o u n t stated, which can only be supported by an admis- g
sion by the defendants of an existing debt. Whether, if you
give your verdict for the plaintiff, it can be upheld, is a matter
which it is not necessary to discuss today. My opinion on the
law is adverse to the plaintiff. Whatever he did as attorney
would fall to the ground. What he did was done as counsel:
and it has been laid down by the.highest authority that a
barrister can maintain no action for his fees: they are of an _,
honorary character. It is impossible to doubt the propriety ^
and expediency of this rule. The question which you have to
decide, is, not whether the contract on which the alleged
. account was stated was a legal contract, but whether the
female, defendant did in point of fact acknowledge the exis
tence of this debt—whether there was a contract for the
services before they were performed, and a subsequent
acknowledgment of liability." D
Accepting the plaintiff's testimony the jury returned a verdict
in his favour for a substantial sum. But a rule nisi was later
obtained to enter' a verdict for the defendants and, after most
elaborate arguments, it was made absolute. The judgment of the
court was delivered by Erie C J . who said 28 that: E
" a promise by a client to pay money to a counsel for his
advocacy, whether made before, or during, or after the litiga
tion, has no binding effect; and, furthermore, that the relation
• of counsel and client renders the parties mutually incapable
of making any contract of hiring and service concerning
advocacy in litigation."
F
He added 27 that in all the records of the law from the earliest
time,
"there is no trace whatever either that an advocate has ever
.. maintained a suit against his client for his fees in litigation,
• / or a-client against an advocate for breach of a contract to
advocate."
G
He cited numerous authorities in support of holding that "counsel
cannot contract for his hire in litigation." 28 But the incapacity
was only one " concerning litigation." 28 " The incapacity of the
24 27
(1863) 13 C.B.N.S. 677. Ibid; 727^ .728. . . ' ■
25 2S
Ibid. 680.681. Ibid. 729.
26
Ibid. 727. .,•". '• ' :•' .'
A advocate in litigation to make a contract of hiring affects the H.L.(E.)

integrity and dignity of advocates, and so is in close relation 1967
with the highest of human interests, viz. the administration of Rondel
justice." 29 After a notable and indeed eloquent passage describing Worsiey
the duties and responsibilities of an advocate the Chief Justice „ ——
r
.... LORD MORRIS
30
said : OF
BORTH-Y-GEST
B "If the law is, that the advocate is incapable of contract- —
ing for hire to serve when he has undertaken an advocacy,
his words and acts ought to be guided by a sense of duty,
that is to say, duty to his client, binding him to exert every
faculty and privilege and power in order that he may main
tain that client's right, together with duty to the court and
himself, binding him to guard against abuse of the powers
C and privileges intrusted to him, by a constant recourse to his
own sense of right."
The reasons for the rule which was there recognised may per
haps not have been very clearly analysed or expounded, but if
the rule was considered to advance the due administration of
justice, then it must have been thought to be linked with con-
D siderations of the public interest and therefore of public policy.
In the judgment of the Privy Council in Reg. v. Doutre31 while
it was accepted that when an English barrister is employed he
is by necessary implication employed upon the usual terms
according to which a barrister's services are rendered, the Board
were not prepared to accept all the reasons for the decision in
E Kennedy v. Broun32 in the judgment of Erie C.J. and were of the
opinion33 that the decision could be supported by the usage and
peculiar constitution of the English bar without attempting to rest
it upon general considerations of public policy.
The rule was again recognised in the Court of Appeal in In re
Le Brasseur and Oakley3i where it was firmly held that the court
^ could not and should not lend its assistance to barristers to recover
their fees: the payment of such fees was only a,matter of honour.
To a similar effect was the decision in 1880 in.the Irish case of
Robertson V. Macdonogh3S where it was held that a barrister and
client were mutually incapable of entering into a binding contract
of hiring. Again in Wells v. Wells36 it.was held that fees owing
to a "barrister are hot legal debts for the recovery of which a
barrister may sue.
29 34
13 C.B.N.S. 737. [1896] 2 Ch. 487, C.A.
30
Ibid. 737. 738. -; " (1880) 6 L.R.Ir. 433.
31 36
(1884) 9 App.Cas. 745, P.C. [1914] P. 157; 30 T.L.R. 545,
32
13 C.B.N.S. 677. C.A. • - • <■
33 :
9 App.Cas. 745, 751.
H.L.(Ei) A s I have indicated, learned counsel for the appellant did not A
1967 find it necessary to seek to assail the massive bulk of authority
R0ndei which, unless swept away o r unless it b e regarded as outmoded,
Warsley establishes the somewhat unique rule that a barrister cannot sue
„ —r-. for fees. A s this rule has not been challenged I do not propose
LORD MORRIS
OF to examine it. It has not been the target of any attack. T h e sub-
BORTH-Y-GEST m j s s i o n 0 f c o u n s e l
for the appellant was that there is n o sound JJ
basis in law for any rule that an action alleging negligence against
a barrister does not lie a n d that any rulings to that effect have
been founded upon misapprehension or at least are no longer in
accord with modern developments of o r understanding of the law.
That it has been considered to b e settled law that no action
alleging negligence against a barrister lies is amply illustrated by C
the circumstance that there is no record of the success of a n y
such action. Though statements are found in some cases which
suggest the possibility that some claim could be brought against a
barrister (see Brook v. Montague,37 Bradish V. Gee38 and Burness
v. Morris39) there are clear expressions of opinions made by judges
that no action alleging negligence could be brought. The allega- D
tion that gave rise in 1791 to an action for negligence against a
barrister in Fell v. Brown*0 was that the defendant, a barrister,
had so unskilfully and negligently settled and signed a bill filed
by the plaintiff in the Court of Chancery that it was referred by
the Lord Chancellor to the master for scandal and impertinence
and that in the result the plaintiff was ordered to pay the costs of E
the reference. Lord Kenyon gave it as his opinion that no action
lay against the barrister for drawing a declaration full of unneces
sary matter. The action was the first and he " hoped it would be
the last, of the kind." " Lord Abinger gave a similar opinion in
F'erring v. Rebutter.42 An action had been brought against Perring.
He retained Rebutter (who was a special pleader) to advise on the F
proper plea and defence. Perring complained that Rebutter
advised negligently with the result that he (Perring) failed in
defending the action brought against him. When he sued Rebutter
Lord Abinger said *3 that such an action " was certainly not main
tained against a barrister " and that there was no difference in the
case of a certified special pleader.. On that intimation there was G
a conference between counsel and the case was settled by
withdrawing a juror.
37
(1605) CroJac. 90. " (1791) Peake 132.
38
(1754) 1 Amb.229; *2 (1842) 2 Mood. & R. 429.;
39
(1849) 11 Dunlop 1258. « Ibid. 430.
40
(1791) Peake 131.
A In Purves v. Landell,44, Lord Campbell said that against the H.L.(E.)

barrister in England and the advocate in Scotland no action could 1967
be maintained though he said that an action could be maintained Rondel
against the attorney, the professional adviser or the procurator if worsley
there was (what was then called) gross negligence. In 1876 an
action was brought both against an advocate and a writer to the 0p
BORTH Y GEST
B signet in the case of Batchelor v. Pattison and Mackersy." The " '
Lord President (The Right Hon. John Inglis), in the course of his
judgment, said " :
" An advocate in undertaking the conduct of a cause in
this court enters into no contract with his client, but takes on
himself an office in the performance of which he owes a duty,
Q not to his client only, but also to the court, to the members
of his own profession, and to the public. From this it follows
that he is not at liberty to decline, except in very special
circumstances, to act for any litigant who applies for his
advice and aid, and that he is bound in any cause that comes
into court to take the retainer of the party who first applies
to him. It follows, also, that he cannot demand or recover
n by action any remuneration for his services, though in practice
he receives honoraria in consideration of these services.
Another result is, that while the client may get rid of his
counsel whenever he pleases, and employ another, it is by no
means easy for a counsel to get rid of his client. On the
other hand, the nature of the advocate's office makes it clear
that in the performance of his duty he must be entirely
independent, and act according to his own discretion and
E judgment in the conduct of the cause for his client. His
legal right is to conduct the cause without any regard to the
wishes of his client, so long as his mandate is unrecalled,
and what he does bona fide according to his own judgment
will bind his client, and will not expose him to any action
for what he has done, even if the client's interests are thereby
prejudiced."
F
In the cases to which I have referred the legal basis for the
opinions so unhesitatingly expressed is not fully analysed or
expounded. The remarkable case of Swinfen V. Lord Chelms
ford " was considerably concerned with the question of the
authority of counsel to settle an action though the whole question
P of the legal liability of counsel came under consideration. In
previous proceedings the plaintiff had wished to establish that
an estate had by will been devised to her. Her then counsel (the
defendant in Swinfen v. Lord Chelmsford)" both to her dismay
" (1845) 12 CI. & F. 91, 103, . " Ibid. 918.
H.L. " (1860) 5 H. & N. 890.
4S
(1876) 3 R.(Ct of Sess.) 914.
242 HOUSE OF LORDS . [1969]
H. L.(E.) and, as she asserted, also contrary to her express instructions, A

1967 settled the case on the basis that the estate went to the heir at
Rondei law subject to his paying an annuity (secured on the estate) to
Worsley êr ^^ e Pontiff) f° r n e r life- She firmly refused to acknowledge
. — the settlement. She successfully resisted all the legal proceedings
LORD NIORKIS
OF by which the heir-at-law sought to enforce the settlement. When
BORTH-Y-GEST j j e a ppii e t i for specific performance she succeeded in establishing B
that the settlement had been without her authority. The issue
which she had raised in her original proceedings later came on
for trial again: she was successful in her claim that the estate had
by will been devised to her. The various legal proceedings which
by her pertinacity gave her complete victory did, however, involve
her in trouble and expense. Accordingly, she sued her counsel, c
The case was tried with a jury. H e r declaration alleged that the
defendant (who had been her counsel) had settled her case (by
withdrawing a juror) wrongfully and fraudulently and without her
authority and against her will and contrary to her instructions and,
accordingly, that he had failed and neglected to perform his duty.
One plea of the defendant was that he did not know that he had j)
no authority to settle and that he had settled in good faith and
without fraud. Another plea was that there had been no restric
tion on the exercise of his discretion and that he had acted without
fraud or negligence and in good faith and in the exercise of the
best of his judgment and in the honest exercise of his discretion.
In his direction to the jury Pollock C.B. said 4 8 that all that the E
law requires from a counsel in a cause is that he shall discharge
his duty to the best of his ability and that the defendant was not
responsible if he intended to act honestly and for the benefit of
his client. O n behalf of the plaintiff, Pollock C.B. was asked* 9
to leave the question to the jury whether the defendant entered
into the compromise wilfully and without the authority of his F
client but the learned judge thought that that would not constitute
a cause of action. After the jury had found for the defendant on
all the issues a rule nisi for a new trial on the ground of mis
direction was granted and was argued before the Court of
Exchequer. T h e rule was discharged. T h e court held that a n
advocate at the English bar, accepting a brief in the usual way, G
undertakes a duty but does not enter into any contract or promise
either express or implied: he takes upon himself an office or duty
in the proper discharge of which not merely the client but the
court in which the duty is to be performed, and the public at large,
" 5 H . & N. 897. « Ibid. 898. _'
A have an interest. The court, held that the conduct and control of H.iL. (E.)
a cause are necessarily left to counsel. They added 5 0 : 1967
" If a party desires to retain the power of directing counsel Rondel
how the suit shall be conducted, he.must agree with some woreley
counsel willing so to bind himself. A counsel is not subject to —-
an action for calling or not calling a particular witness, or LORD MORRIS
for putting or omitting to put a particular question, or for BORTH-Y-GEST
■" honestly taking a view of the case which may turn out to be
quite erroneous. If he were so liable, counsel would perform
their duties under the peril of an action by every disappointed
and angry client."
They also held 51 that " no action will lie against counsel for any
act honestly done in the conduct or management of the cause."
C It is to be observed that the court accepted that counsel owed
a duty: the duty was one which was owed to the client and also
to the court and also to the public. The court might have been
content to say that as counsel is vested with a discretion as to how
he will conduct a case he will have a defence when sued if he
asserts that he exercised his discretion honestly. But the court
D went further and laid it down that for any act honestly done, in
the conduct and management of a cause no action will lie against
counsel. The basis of this would seem to be that as counsel owes
a duty to the public and to the court as well as to his client, the
public interest and the administration of justice require that he
should not be subject to an action in respect of such complaints
as " calling or not calling a particular witness, or for putting or
omitting to put a particular question, or for honestly taking a
view of the case which may turn out to be quite erroneous." " The
question now arises whether this view is correct and whether
today justification for it continues to exist.
p The statement of the court in Swinjen v. Lord Chelmsford*2
that an advocate takes upon himself a duty in the discharge of
which the client and also the court and also the public had an
interest was a statement made in reference to litigation. The
context in which the words which I have quoted were spoken was
that of " t h e conduct or management of the cause." The words
" were spoken in reference to an advocate at the English bar because
only such an advocate could have conducted the case in the court
in which the first cause of Swinjen V. Swinjen ^ was tried. The
reasoning of the decision, if it is correct, would seem to me to
50 52
(1860) 5 H. & N. 921. Ibid. 921.
81
Ibid. 923. " (1856) 18 C.B. 485.
H. L. (EO apply to the advocate in litigation whether he be either a barrister A

1967 or a solicitor.
Rondel Although it was not argued on behalf of the appellant in this
case tnat a
Woreley barrister enters into a contractual arrangement, I see
. —T- no reason to doubt that when retained a barrister owes a duty
LORD ivi ORRIS
OF to exercise due and reasonable care and skill. In this respect he
ORTH-Y-GEST J S ) m m y 0 p i n [ o n >
j n t n e s a m e position as the members of other JJ
professions. The duty is owed, quite irrespective of contract, and
quite irrespective of the receipt of any reward or honorarium. It
is owed when the work is undertaken which he is instructed to do.
Accordingly, in my view, there cannot be, and indeed there ought
not to be, any question of any one profession being in a special
position, save, if at all, in such limited way as the public interest c
demands.
By way of illustration of general principle it is helpful to refer
to some of the authorities which are in the books. The case of
Lanphier v. Phipos5* was a medical case. The plaintiffs were
husband and wife. The defendant was a surgeon and apothecary.
H e was employed by the husband. H e was employed by the D
husband to attend to the wife, who had suffered an injury to her
right hand and wrist. A n allegation was made in the action of
careless, negligent and unskilful treatment. In summing up to the
jury, Tindal C.J. said " :
" Every person who enters into a learned profession under- £
takes to bring to the exercise of it a reasonable degree of care
and skill. H e does not undertake, if he is an attorney, that
at all events you shall gain your case, nor does a surgeon
undertake that he will perform a cure; nor does he undertake
to use the highest possible degree of skill. There m a y be
persons who have higher education and greater advantages
than he has, but he undertakes to bring a fair, reasonable, and p
competent degree of skill, and you will say whether, in this
case, the injury was occasioned by the want of such skill in
the defendant. T h e question is, whether this injury must be
referred to the want of a proper degree of care and skill in
the defendant or not. The action is not brought for any
injury sustained by the husband, but it is brought by the wife
for the injury which she has sustained by the loss of the use
of her hand. The husband must be joined in the action, but "
the damages are to be given for the injury sustained by her."
In Hart v. Frame " there was an appeal against interlocutors
of the Court of Session in Scotland. Certain masters employed
" (1838) 8 C. & P. 475. " (1838) 6 CI. & F. 193, H.L.
55
Ibid. 479.
A an attorney to take proceedings against their apprentices for mis- H.L.CE)

conduct. The attorney specifically proceeded on the section of the 1967
statute which related to servants and not to apprentices. It was Rondel
held that there was such want of skill or diligence as to render woisiey
the attorney liable to repay to his clients the damages and costs -—
occasioned by his error. The Lord Chancellor (Lord (Tottenham) OP
„ .j 57 BORTH-Y-GEST
B said": —
" Professional men, possessed of a reasonable portion of
information and skill, according to the duties they undertake
to perform, and exercising what they so possess with reason
able care and diligence in the affairs of their employers,
certainly ought not to be held liable for errors in judgment,
p whether in matters of law or discretion. Every case, there-
fore, ought to depend upon its own peculiar circumstances;
and when an injury has been sustained which could not have
arisen except from the want of such reasonable skill and
diligence, or the absence of the employment of either on the
part of the attorney, the law holds him liable. In under
taking the client's business, he undertakes for the existence
and for the due employment of these qualities, and receives
D the price of them. Such is the principle of the law of
England, and that of Scotland does not vary from it."
The case of Donaldson v. Haldane™ was a somewhat hard
one. The defendant, a writer to the signet, was the ordinary
attorney for a borrower. He acted in the matter of a particular
loan for the lender but he made no charge against the lender for
his services. The security he took was not sufficient. It was held
that he was properly charged as an attorney acting on the retainer
and employment of the lender and was in that character liable to
an action for damages for the loss suffered through the insufficiency
of the security. After the death of the lender, two of his sisters
applied to him to do what was necessary. The means taken to
secure the repayment of the loan on the continuation of it were
insufficient. It was held that as representing the interest of the
deceased and on their own account the sisters were entitled to
compensation from the attorney. Lord Brougham said69: " . . . his
conduct in volunteering his services does incline one to think that
_, the liability he incurred in point of law is somewhat hard upon
him; but still I cannot doubt that he is liable."
In the case of Rex v. Bateman,60 it was said in the judgment
of the court in reference to the civil liability of a medical man—
" 6 CI. & F. 210. " (1925) 94 L.J.K.B. 791, 794; 41
58
(1840) 7 CI. & F. 762, H.L. T.L.R. 557, CCA.
58
Ibid. 771, 772.
H.L.(E.) «jf a person holds himself out as possessing special skill A

1967 and knowledge and he is, consul ted, as possessing such skill
anc
R' H i * ^ n o w ^ § e » by or on behalf of a patient, he owes a duty
°£ to the patient to use due caution in undertaking the treatment.
wbrsley If he accepts the responsibilty and undertakes the treatment
am
LORDMORRIS * ^ P a t i e n t submits to his direction and treatment accord-
OP ingly, he owes a duty to the patient to use diligence, care,
BORTH-Y-GEST knowledge, skill and caution in administering the treatment. g
No contractual relation is necessary, nor is it necessary that
the service be rendered for reward."
In line with the principles illustrated by such cases as the above
(and by such a case as Pippin v. Sheppard61) were the observa
tions of Scrutton L.J. in Everett v. Griffiths62 and the observations
in your Lordships' House in Banbury v. Bank of Montreal63 and Q
in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd."
It follows from what I have said that, in my view, there is no
sound legal principle which can support or justify the broad and
sweeping statements that have in the past been made that barristers
are in all circumstances immune from liability. Doubtless it has
often been thought that their inability to sue for fees leads to that pj
result. Some such idea may have been involved in what Lindley
L.J. said in In re Le Brasseur and Oakley 65 :
" But I think it is of the utmost importance that the court
should not assist barristers to recover their fees. If they do
so, the whole relation between a barrister and his professional
client will be altered, and a door will be opened which will £
lead to very important consequences as regards counsel. The
inevitable result will be to do away with that which is the
great protection of counsel against an action for negligence
by his client."
(See also the Irish case of Robertson v. Macdonogh.™)
The immunity of barristers has been referred to in books of
authority. In Halsbury's Laws of England, 3rd ed., vol. 3 (1953),
It is stated at page 46:
" The principle which prevents a barrister from suing the
• client for his fees, i.e. the mutual incapacity of counsel and
client to contract with reference to the services of counsel,
also prevents the client from suing counsel.
" I f a barrister acts honestly in the discharge of his duty, G
he is not liable to an action by his client for negligence, or
for want of skill, discretion, or diligence in respect of any
81
62
(1822) 11 Price 400. ' "5 [1964] A.C. 465.
[1920] 3 K.B. 163, 192; 36 « [1896] 2 Ch. 487, 494, C.A.
L ; R ; 4 9 1 , C.A.' 1 ' v.'■.
T ' .63 ™ (1880) 6 L.R.Ir. 433.
[1918] A.C. 626, 682, 689; 34
T.L.R. 518, H.L.
A act done in the conduct of a cause, or in settling drafts, or in H.L.(E.)

advising." 1967
To take another example, in Winfield on Tort, 7th ed. (1963), Rondel
p. 185, it is said that: Worsley
" T h e reason for this exemption is that in theory his LORD MORRIS
services are gratuitous, and although that, by itself, is not a BORTH ?*GEST
B sufficient ground for preventing a legal duty from arising in _I_1
other circumstances, the rule with regard to the barrister
is inveterate, whatever be its justification."
That would seem to be a very fair summary of the situation as
it has been understood to be. But now that the matter has called
for examination I cannot think that the rule, though long accepted,
C ought to continue save to such extent as sound and valid justifica
tion for it can be shown to exist. It may well be, however, that
down to the present time, having regard to the wide statements
that are to be found in the authorities, all concerned must be
deemed to have proceeded on the basis that barristers have been
in all cases immune from suit (see Reg. v. Doutre ")•
D I pass, therefore, to consider whether so far as concerns what
is said or done in the conduct or management of a case in court
the public interest requires that an advocate should have im
munity. In the first place, it will be helpful to examine the nature
of the duty which is owed by an advocate. I think that it must
be true to say, as was said in Swinfen v. Lord Chelmsford,"8 that
E the duty undertaken by an advocate is one in which the client,
the court and the public have an interest because the due and
proper and orderly administration of justice is a matter of vital
public concern. The advocate has a duty to assist in ensuring
that the administration of justice is not distorted or thwarted by
dishonest or disreputable practices. To a certain extent every
F advocate is an amicus curiae. In the Irish case of Reg. v.
O'Connell69 it was said by Crampton J. that though an advocate
for an individual is retained and remunerated for his services " yet
he has a prior and perpetual retainer on behalf of truth and
justice." His duty to the client is to exercise a reasonable degree
of care and skill. In the nature of things that, in turn, involves
^* that he must make decisions which call for the exercise of personal
judgment. He must in the honest exercise of his discretion decide
what questions to put and what witnesses to call. It would seem
to result from this that in most cases it would be an effective
67
9 App.Cas. 745, 752. ., " ,6» (1844) 7 I.L.R. 261, 313/ '.'
68
5 H. & N. 890. • ■"••■ "* ;
H. L. (E.) answer to an allegation of negligence to say that the course that A

1967 had been followed in litigation was that which the advocate in
Rondel the honest exercise of his discretion had deemed it advisable
t0
Worsley f°U° w - It is the discretion of the chosen advocate upon which
¥ — the client must rely. When a case is concluded it can often happen
LORD ivlORRIS
OF that in retrospect there are cogitations as to whether if this or
that additional question had been put or if this or that question B
had not been put or if some further witness had been called the
result might have been different. In many cases it is probable
that the result would not have been different. In some cases it
might only be those who judicially determined the first case (the
judge or members of a jury) who could really supply the answer.
If in retrospect it were thought that had a case been differently c
conducted the result would possibly or probably have been
different, it might be that the view would be held that the advocate
had honestly exercised his discretion but had been guilty of certain
errors of judgment not amounting to negligence. The duty of the
advocate is, however, not merely to act honestly: his duty also
is to exercise a reasonable degree of care and skill. In the case D
of such advocates as can and do enter into contractual arrange
ments the duty arises ex contractu but in other cases the duty
arises out of and by reason of the relationship between the
advocate and the client who has sought his assistance. Though
in most cases, by reason of the special and distinctive features of
the work of advocates in which personal discretion is so much
involved, assertions of negligence could readily be repelled, a cause
of action alleging professional negligence could nevertheless always
be framed. Is it, then, desirable in the public interest, while rejecting
the wide immunity which has hitherto been proclaimed, to retain
an immunity relating only to the limited field of the conduct and F
management of a case in court? Is it, as a matter of public
policy, expedient that actions which involve a searching review
almost amounting to a re-trial in different actions of previous
actions or cases already concluded should not be allowed? Is the
administration of justice (which is so much the concern of the
community) better promoted if such actions are not countenanced?
If it is recognised that there could be some cases where negligence
(as opposed to errors of judgment) could be established, is it never
theless on a balance of desirabilities wise to disallow the bringing
of such cases? In my view, the answer to these questions is that
it is in the public interest that such actions should not be brought.
A In this, as in other aspects of the present case, I find myself in H-L- (E-)
general accord with the judgment of Salmon L.J.70 1967
It will be useful to consider some of the circumstances that Rondel
would arise if such actions were permitted. If someone has been worsley
tried on a criminal charge and has been convicted it would not . ——
.LORD rviORRIS
be of any purpose for him to assert that his counsel had been OF
B unskilful unless he could prove that he would have been acquitted
had his counsel conducted the case with due care and skill. He
would have to prove that on a balance of probability. He would,
however, only have been convicted if the jury had been sure that
his guilt had been established. If he asserts that, had his counsel
asked some more questions than he did ask, the jury in the
C criminal case or the magistrates would have acquitted him, would
he be entitled in his negligence action to call as witnesses the
members of the jury or the members of the bench of magistrates
who had convicted him? I have no doubt that it would be against
public policy to permit any such course. If there were a con
viction by a majority verdict of ten to two, could one of the ten
D be called to say that had there been further questions put to some
witness he would have agreed with the two jurors? Again, that,
in my view, would be procedure that ought not to be permitted.
If there were a jury in the civil action for negligence they would
have to decide whether, on the assumption that the additional
questions had been put, there probably would have been an
E acquittal. Presumably they would have to review all the evidence
that had been given in the criminal case. They would either need
to have a transcript of it or they would have to hear the witnesses
who had previously given evidence. After a period of time the
witnesses might not be available. The transcript might not be
obtainable. If obtainable it might relate to a trial that had taken
F not days but weeks to try. But assuming that all the necessary
evidence was available and assuming that memories were not
dimmed by the passing of time, the civil jury would in effect be
required to be engaged in a re-trial of the criminal case. That
would be highly undesirable. And supposing that after a criminal
trial a person was convicted and then appealed unsuccessfully
G against his conviction and later brought a civil action against his
counsel alleging negligence: if he succeeded, would any procedure
have to be devised to consider whether or not it would be desirable
to set aside the conviction. The conviction (as in the present case)
might have taken place years before. Any sentence of imprisonment
70
[1967] 1 Q.B. 443, 514-526.
H. L.(E.) imposed might have been served (as in the present case) long \
1967 before. If in the civil action the suggestion was made that, had
Rondel there been further evidence called or further questions put in the
Worsley criminal case, there might have been a disagreement rather than
— a conviction, this only serves to demonstrate how difficult it would
LORD MORRIS
OF be for a court to decide on a balance of probabilities what the
BORTH-Y-GEST j u r y j n t n e criminal c a s e would have done had there been different JJ
material before them. A trial upon a trial would raise speculation
upon speculation.
It may be said that these considerations merely point to the
difficulties that would lie in the way of success by a convicted
person who brought an action. (The difficulties would be greater
in the case of a private prosecutor who, being disappointed by c
the acquittal of someone who had been prosecuted, brought an
action for negligence against prosecuting counsel. Apart from
the difficulties of proving damage, it would surely be highly
undesirable that an issue whether someone was guilty of an offence
should be tried in proceedings to which he was not a party.) But,
in my view, the considerations to which I have referred are,of D
deeper and more fundamental significance. The procedure regu
lating criminal trials and the machinery for appeals in criminal
cases, is part of the structure of the law. Much of it is statutory.
In practice the judges who preside at criminal trials do what they
can to ensure thai the case of an accused person, whether he is
represented or whether he is not, is fairly and adequately prer E
sented. If there is an appeal there are rules which regulate the
approach,of the appeal court and which apply to such matters as
to whether evidence will be heard on appeal or whether a new
trial will be ordered. In practice it is unlikely that, owing to some
want of care, counsel would refrain from calling at the trial a
witness who was thought to be dependable and whose testimony p
would certainly secure an acquittal. It is to be remembered also
that an accused person is at liberty to give evidence on his own
behalf.. A system which is devised so as to provide adequate and
reasonable safeguards against the conviction of, innocent persons
and to provide for appeals must nevertheless aim at some measure
of finality. If the system is found not to be adequate then it can G
be altered and modified: it can be kept continually under review.
I cannot .think, however, that it would be. in the public interest
to permit a sort of unseemly excrescence upon the legal system
whereby, someone who has been convicted and has, without suc
cess, exhausted all the procedures for appeal open to him should
seek to establish his, innocence (and to get damages) by asserting
t A.C AND;BRIVYJCOUNGIL 251
A that, he would not. have been convicted at all but.fori the fact that HiiL-OEi)
his advocate failed to exercise due care and skill.. . qr. 1967
■:•'. Many of these considerations have parallel validity in regard Rondel
to complaints of lack of care and skill in a civil action. It:is true \y&rsley
that courts must not avoid reaching decisions merely because
there are difficulties involved in reaching them, It may not be OF.
B impossible in certain circumstances for one civil court to decide B ° Kr »^ GEST
that ah earlier case in a civil court (one, for example, tried by a
judge alone) would have had a different result had some different
course been pursued, though.in most cases there would be likely
to be various difficulties in the way of reaching such a conclusion.
But it would, in my view, be undesirable in the interests of the
C fair and efficient. administration of justice to tolerate a system
under which, as a sort of by-product after the trial of an action
and after any appeal or appeals, there were litigation upon, litiga
tion with the possibility of a recurring chain-like course of liti
gation. The quality of an advocate's work would suffer if, when
deciding as a matter of discretion how best to conduct a case, he
D was made to feel that divergence from any expressed wish of the
client might become the basis for a future suggestion that the
success of the cause had thereby been frustrated. It would be a
retrograde development if an advocate were under pressure unwar
rantably to subordinate his duty to the court to his duty to the
client. While, of course, any refusal to depart at the behest of the
E client from accepted standards of propriety and honest advocacy
would 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 to consider such a course
F to be unwise. It must be recognised that there must, in the past,
have been instances where a lack of due care and skill has
resulted in the loss of a case. Such instances may unhappily
occur in the future. It becomes, therefore, a matter of balancing
the public advantages and the public disadvantages which are the
result of an immunity of the advocate from a suit alleging negli-
G gence in. the conduct and management of a court case. In my
view, the public advantages outweigh the disadvantages. They
do so overwhelmingly in respect of criminal cases and consider
ably so in respect of civil eases./ It has always been the policy
of the law to ensure that trials are conducted without avoidable
strainsand tensions of alarm and fear. If a witness, whose testi
mony involVed uttering words defamatory of others,'was under
H.L.(E.) any fear 0 f having an action brought against him on account of A

1967 what he said in court, the due administration of justice would be
Rondel impossible. In order that the protection of a witness may be
Worsley complete and so that it is not circumvented by the making of
. an allegation that the testimony was false or was perjured or was
LORD MORRIS
OF given maliciously, the immunity from suit is absolute. N o action
ORTH-Y-GBST ] j e s j n r e S p e c t 0 f evidence given by witnesses in the course of g
judicial proceedings, however false or malicious it may be, though
naturally everyone is bound by the criminal law and if perjury
can be proved a criminal prosecution may result. T h e immunity
from civil suit is founded upon reasons of public policy and, as
was pointed out in Marrinan v. Vibart,71 the protection which the
law affords to witnesses is not given as a benefit for them but is c
given for a higher interest, i.e., that of the advancement of public
justice. So also the immunity from civil suit in respect of words
spoken in court applies to the parties to a case: it applies to
judges: it applies to advocates. In Munster v. Lamb72 the
plaintiff brought an action for defamation against a solicitor in
respect of words he had spoken as an advocate. T h e action failed £>
and an appeal from the judgment of Mathew J. was dismissed.
In his judgment Mathew J. said:
" I t may be inconvenient to individuals that advocates
should be at liberty to abuse their privilege of free speech,
subject only to animadversion or punishment from the pre
siding judge. But it would be a far greater inconvenience j,
to suitors if advocates were embarrassed or enfeebled in
endeavouring to perform their duty by the fear of subsequent
litigation."
In his judgment in the Court of Appeal, Brett M.R. said " :
" A counsel's position is one of the utmost difficulty. H e
is not to speak of that which he knows; he is not called upon „
to consider, whether the facts with which he is dealing are
true or false. What he has to do, is to argue as best he can,
without degrading himself, in order to maintain the propo
sition which will carry with it either the protection or the
remedy which he desires for his client. If amidst the difficul
ties of his position he were to be called upon during the heat
of his argument to consider whether what he says is true or
false, whether what he says is relevant or irrelevant, he would Cr
have his mind so embarrassed that he could not do the duty
which he is called upon to perform. For, more than a judge,
infinitely more than a witness, he wants protection on the
ground of benefit to the public."
71 72
[1963] 1 Q.B. 528, 536; [1962] 11 Q.B.D. 588, 594, 595.
3 W.L.R. 912; [1962] 3 All E.R. 380, « 11 Q.B.D. 603, 604.
C.A.
^ In Watson v. M'Ewan7i it was held that the privilege which H.L.(E.)

protects a witness from an action of slander in respect of his 1967
evidence in court also protects him against the consequences of Rondel
statements made to the client and to the solicitor in preparing the worsley
proof for trial. The Earl of Halsbury L.C. said 75 that the T -—
f r . . . . . . . . LORD MORRIS
immunity of a witness from responsibility in an action after OP
0RTH Y EST
B evidence has been given by him in a court of justice was too well *"
established to be shaken. In that case it was clearly recognised 76
that it is " public policy which renders the protection of witnesses
necessary." It must be recognised that the relationship between
"the advocate and the client differs from relationship between the
client and an adverse witness or between the client and a juror
Q but it is desirable in the public interest that a case in court should
be regarded by all concerned as being a solemn occasion when
the utmost endeavour is being made to arrive once and for all
at the truth and to achieve a fair and just result. The atmosphere
must be created in which every person concerned is given full
opportunity to play his part. There can be procedure and
Q machinery for appeals and the effectiveness of appeal procedure
can be kept under review, but the attainment of finality must be
an aim of any legal system. In the nature of things it would
seem to be undesirable if, when the litigation is over and appeals
have been heard there can be an inquest upon it all, or a further
re-opening of it all, in the form of an action against the advocate
g alleging that it was his fault that the case had not been differently
decided. The successful party in the litigation would not be
involved in or be a party to the later action, yet in that action
the assertion would be made that he had wrongly gained the
victory. If a petitioner for divorce failed to obtain a decree and in
an action against his advocate claimed that he would have suc-
p ceeded but for some fault on the advocate's part, there might be
inquiry as to whether the respondent to the petition had been
guilty of a matrimonial offence: the inquiry would be taking
place in proceedings to which the respondent was not a party.
Such procedure could not be desirable or could not on balance
be in the public interest. Though the very nature of advocacy is
G such that there would be manifest difficulties in proving that but
for some faulty conduct or management of a case in court there
would have been a different result, it is not this circumstance
which warrants an immunity from suit. It is warranted and only
74
[1905] A.C. 480, H.L. ™ Ibid. 487.
75
Ibid. 486.
1 A.C. 1969. 9
H. L. (E.) warranted by the various considerations of the public interest to A

1967 which I have referred.
Rondel I would dismiss the appeal.
V.
Worsley
LORD PEARCE. My Lords, the issue in this case is whether
the action should be allowed to continue or whether it should at
this stage be dismissed. Two separate underlying problems have B
been raised. Is counsel liable to be sued for negligence under the
law as it now stands? And, if not, should the law be altered so
that in future he becomes liable?
Mr. Rondel was charged at the Old Bailey with causing
grievous bodily harm to Manning with intent. He obtained the
services of the respondent on a dock brief (i.e., by payment of C
£2 4s. 6d.). The respondent then defended him. He was con
victed. The only defence suggested by Mr. Rondel either then
or later was self defence. There was indeed no other possible
defence. It is undisputed that he seriously injured Manning. He
said to the judge in chambers: " I tore his hand in half and bit
part of his ear off." He himself did not suffer a scratch. In the D
Court of Appeal, apparently, he exulted in his ability to inflict such
injuries without the aid of a weapon and resented the allegation
that he must have used a knife, which he considered a reflection
on his prowess. When asked by the judge in chambers whether
he was suggesting that he would have been acquitted if his counsel
had conducted his case properly, he said " No." Apparently his E
complaint against his counsel is that he failed to reveal and prove
in cross-examination of prosecution witnesses and by demonstra
tion that Manning's wounds were not caused by a knife, and failed
by cross-examination of the police or by calling Rachman (the
well-known slum landlord) and Nash to prove that Mr. Rondel
was not in the habit of using a knife (a piece of evidence whose F
admissibility I would doubt) and that Mr. Rondel was in the
employ of Rachman and was on the premises in that capacity.
There was also a further complaint described in his amended
statement of claim in these words:
(3) "Allowing my witness Miss Hogan to be unjustly
discredited and ridiculed arising out of the defendant's *■*
failure to neutralise the prosecution counsel's relatively shat
tering ' revelation' that Miss Hogan could not see into the
passage-way from her bedroom window and letting this
irrelevant nonsense over-swamp her vital evidence that she
saw four West Indians after some heated discussion follow
me into the passage. And not saw them and me actually
in the passage."
H L
A It is always inconvenient to a party when his witness is shown in - - CE-)
cross-examination to have been saying that she saw things which it 1967
was physically impossible for her to see. There is no known pre- R0n<jei
scription by which counsel can " neutralise " such a " revelation wareiey
or stop a jury from drawing reasonable inferences from it. Nor, —-
in the interests of justice, is it very desirable that such a magic
B should exist.
If one uses a little practical common sense in approaching the
case, one or two things are obvious. It was, on the face of it, a
difficult and, one might almost say, a fairly hopeless case. Mr.
Rondel had inflicted severe injuries on a man and emerged scathe
less. The only real hope was that Mr. Rondel could by obvious
C honesty in the way he gave his evidence persuade the jury that
he was really being beset and that unfortunately in self defence
he did more injury than he intended. If he appeared so obviously
honest and said (as no doubt he did say) that he used his teeth
and not a knife the jury would probably accept that. But that
was not the important point of the case. A close cross-examination
D on whether it was his teeth or a knife might well give the impres
sion that he was seeking to justify that barbarous behaviour and
thus antagonise a jury and make them less receptive of Mr.
Rondel's story as a whole. Evidence that he was an accredited
employee of Rachman might also have an alienating effect. And
if Rachman had been called, a cross-examination of him by the
E prosecution might have had a very adverse effect. All these things
are difficult matters of speculation. Hindsight is as unreliable a
guide to them as foresight. When counsel wishes on reflection at
the end of a case that he had asked a question or called a witness
or (about equally often) that he had not asked that question or
called that witness, it may well be that the thing, which he now
F wishes otherwise, helped rather than hindered his case in the minds
of the jury, if the truth could be known, which it cannot.
One of an advocate's difficult tasks is to persuade his client
that many of the questions which he wishes counsel to ask may
quite possibly injure his case by the answers they evoke. Cross-
examination cannot in general shake a really careful, honest wit
ness; it merely makes his carefulness and honesty more obvious
and gives him an opportunity of driving in the nails harder, or,
it may be, of driving in more nails. One of the merits of great
advocates has often been that they have asked in cross-examination
only one question to every ten that a less good advocate would
have asked. And where ten possible points were available they
H. L.(E.) would often ruthlessly select the best, sacrifice nine, and thereby A
1967 win on the tenth. Lesser advocates, being more oppressed by a
Rondei desire to please their clients so far as it is possible and consistent
w
Woreiey ^ a P r o P e r conduct of the case, may select more points and
thereby slightly impair the force of their advocacy. A judge
— appreciates this compromise and will allow them some sympa
thetic leeway, since he, too, is most anxious that the clients should B
be satisfied. But if a barrister was liable to account in respect
of points, or evidence, or questions which he discarded, he would
obviously be inclined to take every point, to ask every question,
and to call every witness. Nor, in that event, could a judge fairly
complain of this.
Even assuming that Mr. Rondel's account of the matter be C
true, there seems to me no substance in his complaint. Moreover,
he has chosen to let nearly six years pass before he put it forward
and it is now too late to put any real reliance on the recollections
of anybody concerned. With every day that passes the memory
becomes fainter, and the imagination more active—a human truism
of which one finds endless examples in accident cases. D
The judge gave Mr. Rondel an opportunity to amend the state
ment of claim (which he found almost unintelligible) and an
amended statement of claim was put forward. In that Mr. Rondel
attempted to insert an allegation that Mr. Worsley was " fraudu
lent " in accepting the dock brief, a statement for which he gave
no justification whatever. The amended statement of claim was
struck out. Mr. Rondel stood by his amended statement of claim
and did not obtain leave to amend it further. The action was
dismissed.
By the time the case came to the Court of Appeal Mr. Rondel
had had legal advice and produced a re-amended statement of F
claim which now will hold water as a legal document, whether or
not there is any substance of truth behind it. That document shows
that, contrary to what Mr. Rondel had previously maintained, he
is now seeking to say that but for his counsel's negligence he
would never have been convicted at all. It is admittedly a matter
of discretion whether, when a pleading is struck out, the court will
give leave to amend. Where there appears to be good faith and
a genuine case the court will allow extensive amendments almost
up to the twelfth hour in order that the substance of a matter may
be fairly tried. But when a party changes his story to meet
difficulties, that fact is one of the matters to be taken into account.
H L
A In Lawrance V. Norreys "—a case which was struck out under - - <E-)
the inherent jurisdiction—Fry L.J. said: 1967
" Then in the next place we have the history of these Rondel
pleadings. We have the evolution of the plaintiff's claim in wor'sley
its struggle for existence, and we find it gradually growing
LoRP P E A R C B
up and developing as the difficulties are pointed out by the
judges of the successive courts before which it comes. The
B
impression produced on my mind by that history is that we
have here the evolution of a myth, and not a gradual
unfolding of real facts."
The majority of the Court of Appeal (since the learned Master
of the Rolls did not deal expressly with the point) held that no
leave should be given to put in a re-amended statement of claim
^ and that the action should therefore be dismissed. Salmon L.J.
said 78 :
" I agree with Danckwerts L.J. that it would be most
unjust at this stage to allow this re-amended statement of
claim to be delivered some seven-and-a-half years after the
plaintiff's claim is alleged to have arisen in an action which
D is clearly as devoid of merit as it is of any prospect of
success."
There was ample material on which that decision could be made
in the exercise of discretion. Moreover, it was plainly right.
The history of this case has, in its general lines, followed a
pattern which is not unfamiliar. Even in your Lordships' House
E many hours are spent each year (and in the Court of Appeal
the numbers are naturally larger) in listening to wholly unbalanced
attempts to re-open, without justification, a case which a party has
lost and which, by brooding over it, he can no longer see in an
objective light. Disgruntled by a decision, he reflects on various
side issues (often quite irrelevant or at least not matters of decisive
P importance) of which he now considers that the judge failed to
take any account or any sufficient account. Two frequent symp
toms of such cases are that they are brought forward years after
the event and that the strength of the complaint increases as the
years roll by. In the present case one sees not only the first
symptom in that the writ was issued nearly six years after the
G event, but also the second symptom in that having after six years
considered that he would not have been acquitted even if his
counsel had performed his task well, he now purports to change
his mind and after seven-and-a-half years seeks to say that he
78
" (1888) 39 Ch.D. 213, 237; 4 [1967] 1 Q.B. 443, 516.
T.L.R. 620, C.A.; affirmed (1890) 15
App.Cas. 210; 6 T.L.R. 285, H.L.
H. L.(E.) would have been acquitted. Another frequent symptom of such A

i%7 cases is that a plaintiff seeks to give additional momentum to his
Rondel complaints by throwing in charges of " fraud " and " conspiracy."
Warsiey ^ ^s i n t e r e s t m g to note that in the present case that symptom
„ —— also occurs. When the first statement of claim was struck out,
LORD PEARCE
Mr. Rondel sought in an amended statement of claim to embellish
his attack by alleging that Mr. Worsley was " fraudulent" in B
allowing himself to be selected for a dock brief.
The reason, however, why so unmeritorious and hopeless a
case has been allowed a hearing in this House was that it raised
questions of general importance. On these your Lordships have
had the advantage of a thorough, fair and lucid exposition by
counsel on both sides. C
The first question is whether, under the present law, counsel
is liable for negligence.
The gradual evolution of the duties and liabilities of those
concerned in the legal process over the centuries is obscure. There
is no case in which a barrister has ever been held liable for
negligence. But there is clear and binding authority that barristers D
were not liable in 1791. In Fell v. Brown7' Lord Kenyon firmly
ruled that no action would lie against counsel for negligence. His
Lordship added that he believed this action was the first, and he
hoped it would be the last of the kind. Thomas Erskine for the
plaintiff was asserting in his opening to the jury that he could,
on the facts, prove gross negligence (crassa negligentia) but on E
Lord Kenyon's ruling he had to accept a non-suit and apparently
there was no appeal. Since Erskine was not a man who would
lightly take no for an answer, one may assume that his contention
did not suffer from lack of argument.
In 1842 Lord Abinger C.B., in the case of Perring v. Rebut
ter60 held that an action for negligence would not lie against a "
certificated special pleader, and said:
"Such an action was certainly not maintainable against
a barrister, and in his opinion there was no distinction
between the case of a barrister and that of a certificated
special pleader."
In Scotland the law was similar to that in England. In 1845
in Purves v. Landell81 Lord Campbell said:
" Against the barrister in England, and the advocate in
Scotland, luckily, no action can be maintained."
79 81
(1791) Peake 131. 12 CI. & F. 91, 103.
80
2 Mood. & R. 429, 430.
A In Ireland in Mullican V. M'Donagh*2 Pigott C.B., giving the H.L.(E.)

judgment of the full court, said: 1967
" This is an action brought against a barrister for neglect Rondel
of duty. Such an action cannot be maintained, as the points worsley
raised have been abundantly ruled, we have only to follow
the decisions already made on the subject." LORD PEARCE
B In 1860 the position of counsel was discussed at length in the
case of Swinfen v. Lord Chelmsford.63 There was a very full
argument and a careful citation of the various early dicta and
relevant authorities including those relating to gratuitous acts. It
was held that counsel was immune from suits for negligence and
could not, in the absence of dishonesty, be sued in respect of his
C conduct of a case. This view was not based on his inability to
sue but on public policy and the fact that in his management of
a case he was in a different position from other professional men.
The unanimous opinion 84 of the court, consisting of Pollock C.B.,
Martin, Bramwell, Channell and Watson BB., was:
" A counsel is not subject to an action for calling or not
D calling a particular witness, or for putting or omitting to put
a particular question, or for honestly taking a view of the
case which may turn out to be quite erroneous. If he were
so liable, counsel would perform their duties under the peril
of an action by every disappointed and angry client."
And later 8 5 :
E " no action will lie against counsel for any act honestly
done in the conduct or management of the cause."
86
In their view :
" . . . a barrister is to be considered, not as making a
contract with his client, but as taking upon himself an office
or duty, in the proper discharge of which not merely the
F client, but the court in which the duty is to be performed,
and the public at large, have an interest."
In 1876 in Scotland the Court of Session (Batchelor v. Patti-
son and Mackersy 87) once again held that a claim for negligence
would not lie against an advocate. The Lord President there
_ said 88 :
" A n advocate in undertaking the conduct of a cause in
this court enters into no contract with his client, but takes on
82 86
(I860) 5 Ir.Jur. 101. Ibid. 920.
83
5 H. & N. 890. « 3 R.(Ct. of Sess.) 914.
84 8S
Ibid. 921. Ibid. 918.
85
5 H. & N. 923.
H. L.(E.) n o t t 0 n j s c ii e n t only, but also to the court, to the members A

1967 of his own profession, and to the public. From this it follows
— — that he is not at liberty to decline, except in very special
°v. e circumstances, to act for any litigant who applies for his
Worsley advice and aid, and that he is bound in any cause that comes
mt0 c o u r t t o ta
LORDPBARCB ke the retainer of the party who first applies
to him. It follows, also, that he cannot demand or recover
by action any remuneration for his services, though in practice JJ
he receives honoraria in consideration of these services.
counsel whenever he pleases, and employ another, it is by
no means easy for a counsel to get rid of his client. On
the other hand, the nature of the advocate's office makes it
clear that in the performance of his duty he must be entirely
independent, and act according to his own discretion and ~
judgment in the conduct of the cause for his client. His legal
right is to conduct the cause without any regard to the wishes
of his client, so long as his mandate is unrecalled, and what
he does bona fide according to his own judgment will bind
his client, and will not expose him to any action for what he
has done, even if the client's interests are thereby prejudiced.
These legal powers of counsel are seldom, if ever, exercised
to the full extent, because counsel are restrained by considera- °
tion of propriety and expediency from doing so. But in such
a case as this, it is necessary to have in view what is the
full extent of their legal powers."
Thus the courts have clearly accepted the principle that owing
to the particular part which he plays in the judicial process counsel
cannot be sued for negligence in his conduct of a case. There "
were a few dicta in earlier times which appear to indicate a
contrary view. These were all collected with great industry by
Mr. Kennedy in 1863 in the case of Kennedy V. Broun 89 which
was concerned with counsel's right to sue for fees. But as Erie C.J.
pointed out in giving the judgment of the court 90 those dicta
" are all considered and overruled in the action of Swinfen v. "
Lord Chelmsford." 91 And " they are mere remarks in the course
of an argument and not adjudications; and they were expressly
overruled as before mentioned." 92
It is argued that this immunity sprang from the fact that
barristers for reasons of status cannot sue for fees: and that, since Q
the case of Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.93
has held that work may impose a liability for negligence even
though a defendant had no contract with, and received no
«» 13 C.B.N.S. 677. »* 13 C.B.N.S. 677, 731.

90 93
13 C.B.N.S. 730. [1964] A.C. 465.
91
5 H. & N. 890.
A remuneration from, the plaintiff, the immunity no longer holds H.L.(E.)

good. But the hypothesis that the immunity stems from the 1967
inability to sue for fees is unsound. Rondel
The inability of a barrister to sue for fees is deep rooted in the w ^
law. It was fully investigated in Kennedy V. Broun.94, The
LORD PEARCE
meticulous argument of Mr. Kennedy went back in history to —
B Roman times. Erie C.J. (with whom were Williams, Byles and
Keating JJ.) said 9 5 :
" We consider that a promise by a client to pay money to
a counsel for his advocacy, whether made before, or during,
or after the litigation, has no binding effect; and, furthermore,
that the relation of counsel and client renders the parties
mutually incapable of^ making any contract of hiring and
^ service concerning advocacy in litigation. For authority in
support of these propositions, we place reliance on the fact
that in all the records of our law, from the earliest time till
now, there is no trace whatever either that an advocate has
ever maintained a suit against his client for his fees in
litigation, or a client against an advocate for breach of a
contract to advocate; and, as the number of precedents has
D been immense, the force of this negative fact is proportion
ately great."
After considering relevant authorities he said *6 that they estab
lished the proposition that—
" . . . the relation of counsel and client in litigation creates
an incapacity to contract for hiring and service as an
E advocate. If the authorities were doubtful, and it was neces
sary to resort to principle, the same proposition appears to
us to be founded on good reason."
He then proceeded to point out the peculiar relationship in which
an advocate stood and founded his reasoning on grounds which are
clearly those of public policy. Inter alia he said " :
F
" The law trusts him with a privilege in respect of liberty
of speech which is in practice bounded only by his sense of
duty; and he may have to speak upon subjects concerning
the deepest interests of social life, and the innermost feelings
of the human soul. The law also trusts him with a power of
insisting on answers to the most painful questioning; and this
>-, power, again, is in practice only controlled by his own view
of the interests of truth. It is of the last importance that the
sense of duty should be in active energy proportioned to the
magnitude of those interests. If the law is, that the advocate
is incapable of contracting for hire to serve when he has
undertaken an advocacy, his words and acts ought to be
s 96
* 13 C.B.N.S. 677. Ibid. 736.
95 97
Ibid. 727, 728. Ibid. 737, 738.
H. L. (E.) guided by a sense of duty, that is to say, duty to his client, A.

1967 binding him to' exert every faculty and privilege and power
—-——— in order that he may maintain that client's right, together
Rondel with the duty to the court and himself, binding him to guard
Worsley against abuse of the powers and privileges intrusted to him,
LORDPEARCE kv a constant recourse to his own sense of right."
It may be that the court was putting the matter too high in
some of the reasons which it gave for deciding that there was an °
absolute incapacity to contract (see Reg. V. Doutre96). But the
long line of decisions that a barrister cannot sue for his fees,
whether directly or by oblique methods such as proof in bank
ruptcy (even in a case where a bankrupt solicitor had actually
received the fees to pay counsel; In re Sandiford (No. 2)") is
consistent. And, in my opinion, it is firmly based on public policy.
Nearly fifty years before Kennedy v. Broun,100 Best J. in 1819
in Morris v. Hunt101 had used arguments based on public policy
when dealing with an argument that as the plaintiff was not liable
to be sued for his counsel's fees, the unsuccessful defendant should
not have to pay them on taxation:
D
"Nothing," he said, "can be more reasonable, than that
counsel should be rendered independent of the event of the
cause, in order that no temptation may induce them to
endeavour to get a verdict, which in their consciences they
think they are not entitled to have. Counsel should be
rendered as independent as the judge or the jury who try the
cause, when called upon to do their duty." g
Such thoughts as these, based upon public policy, plainly
underlay both the inability to sue and the inability to be sued. It
is clear that one did not spring from the other. They both sprang
independently from similar public considerations.
It is argued that Lindley L.J., in In re Le Brasseur and
Oakley 102 (which affirmed the view in Kennedy v. Broun103 that F
a barrister was unable to contract) took the view that the immunity
was dependent on the inability to sue, when he said,104 purely
obiter:
"But I think it is of the utmost importance that the
court should not assist barristers to recover their fees. If
they do so, the whole relation between a barrister and his G
professional client will be altered, and a door will be opened
which will lead to very important consequences as regards
counsel. The inevitable result will be to do away with that
102
oo 9 App.Cas. 745. [1896] 2 Ch. 487.
99 103
[1935] Ch. 681. 10i
13 C.B.N.S. 677.
ioo
101
13 C.B.N.S. 677. [1896] 2 Ch. 487, 494.
1 Chit. 544, 554.
A which is the great protection of counsel against an action H. L.(E.)

for negligence by his client." 1967
1 think he was meaning no more than that if the court were to Rondel
alter the independent position of counsel with regard to fees (a worsley
suggestion which, he thought, would be wrong) it would lead also i_0R^7^RCE
to its altering his independent position with regard to suits for
B negligence (which also he thought would be wrong).
In my opinion, two considerations, apart from the language
used in the cases, tend to confirm the view that immunity did
not arise merely out of the inability to sue, but independently of
it though from the same source of public policy. In Scotland the
doctrine of consideration does not apply, yet the Scottish judges
C have been in no doubt that there was an immunity. And Lord
Kenyon, who firmly held that barristers could not be sued, was
also the judge who held in Wilkinson v. Coverdale105 that a
gratuitous act or omission could found a liability in damages for
economic injury by negligence—a view of the law to which in the
case of Hedley Byrne 106 it returned after its recession in 1893 in
D Le Lievre v. Gould107 based on an erroneous view of Deny v.
Peek.10*
When the law on grounds of public policy has excluded the
liability of a barrister to be sued, was it saying that there was no
right in a plaintiff, or was it saying that there was a right but
that the courts would not as a matter of policy enforce it by
E action, as, for instance, it has said in the case of a wagering
contract? I think that the terms of the various judgments make
it clear that the former was the basis of the courts' decisions.
To what extent have the'opinions in Hedley Byrne 109 affected
the position? Those opinions were dealing in the main with
situations in the nature of contract where but for the absence of
consideration there would be a contract (see especially the opinion
of Lord Devlin 110 ). But to say that they are confined to such
situations would be to take too narrow a view. The special
circumstances, however, in which the law will infer an assumption
of liability are those in which such an inference is a fair reading
of the relationship in which the parties stand. On the facts in
Hedley Byrne's case 11X the existence of a disclaimer of liability
by the defendant bank was held to preclude the establishment of
105 108
(1793) 1 Esp. 74. (1889) 14 App.Cas. 337; 5
106
107
[1964] A.C. 465. T.L.R.
10B
625, H.L.
[1893] 1 Q.B. 491; 9 T.L.R. no
[1964] A.C. 465.
243, C.A. Ibid. 514 et seq.
111
[1964] A.C. 465.
H.L.(E.) such a relationship. In the present case also it is clear from the A
J967 circumstances that there was no such assumption of liability.
Rondel In the first place, the law having on grounds of public policy
Woreley deliberately excluded an assumption of liability from the relation-
—r- ship of barrister and client, could not consistently impose it under
a different guise or by a different route. It was excluded not as
a matter of defect in procedure (i.e. by the absence of a contract) B
but as a matter of substantive policy. One may take a rather
distant analogy. The law has decided that an infant, though
liable in tort, shall not be liable on contractual matters which are
to his detriment. It is plain, I think, that in a matter on which
contractually an infant would not be held liable, he could not
be made liable, on a side-wind, by the principle in Hedley Byrne's C
case.111
Secondly, the existence of this established principle or usage of
a barrister's immunity would operate as an effective disclaimer
no less than the disclaimer of the bank in Hedley Byrne's case.111
Unless and until that principle or usage is altered, it would be
fictitious for the law to infer an assumption of responsibility that D
is quite contrary to the clear understanding of the parties.
Thirdly, a barrister is bound to accept a brief, and therefore
one cannot infer from his mere acceptance a voluntary assumption
of liability.
Moreover, there is the point that since Lord Kenyon held in
Wilkinson v. Coverdale112 that there could be a liability in respect E
of the breach of a gratuitous undertaking which resulted in
economic loss, he viewed the law somewhat on Hedley Byrne
lines, and his ruling in Fell v. Brown 113 that a barrister could not
be sued would therefore be equally applicable both before and
after the decision in Hedley Byrne.114
It is erroneous to suppose that it is Hedley Byrne 114 which F
has, for the first time since Le Lievre v. Gould11* laid down that
there may be gratuitous responsibility in negligence resulting in
purely economic damage. Hedley Byrne,116 it is true, broadened
the approach to the problem. But the argument in the present
case, so far as it is based on the principle in Hedley Byrne116 that
there may be liability for gratuitous advice, could with equal force G
have been advanced at any time in the last fifty years under the
case of Norton v. Ashburton " 7 where a solicitor was held liable
111 115
[1964] A.C. 465. [1893] 1 Q.B. 491.
112 116
1 Esp. 74. [1964] A.C. 465.
11J
"» Peake 131. [1914] A.C. 932; 30T.L.R. 602,
114
[1964] A.C. 465. H.L.
A in negligence to Lord Ashburton although the solicitor was not H.L.(E.)

employed by him but by another party. So, too, it could, I think, 1967
have been advanced at any time from the late 18th century Rondel
(Wilkinson v. Coverdale11S) until the law became cramped by vvorsley
Le Lievre V. Gould119 in 1893 or possibly by Deny v. Peek 120
L O R D PPARCE
in 1889. Yet the law during all that time has consistently held —
B that a barrister cannot be sued for negligence.
The law has not differentiated between the liability of a barris
ter in litigation and in his other non-litigious work as a barrister.
In Mostyn's case121 the court expressly affirmed Kennedy v.
Broun 122 in respect of non-litigious fees. And it is also clear that
the various rulings with regard to the immunity of a barrister
C from liability for negligence were intended to cover all his work
as a barrister. In my opinion, therefore, under the law as it now
stands and has stood for some two hundred years (and perhaps
considerably more) a barrister cannot be sued for negligence in
respect of his work as a barrister.
The position with regard to a solicitor is different. No doubt
D when the law was evolved in regard to his responsibility the
solicitor was not regarded as the advocate who stood between the
client and the judge. In the particular pattern that our legal
system evolved that function normally rested on counsel. The
solicitor's main function was not litigation. And when he was
engaged in litigation he was primarily concerned (under contract)
E in employing and instructing counsel, carrying out his advice and
organising the case behind the lines, e.g., in obtaining the evidence
which counsel needed, in taking proofs from witnesses, securing
their attendance and the like. In respect of these functions it was
assumed and held that he was liable in negligence on his contract.
An attorney was held liable for failing to instruct counsel
F properly or to attend and have witnesses available when a case
was called on, and he was made to pay the costs of the resulting
adjournment (Hawkins V. Harwood 123). He has been held liable
for failing to examine a witness before trial and had to pay 40s.
nominal damages (Hatch v. Lewis 124). He has been held liable
for allowing a case to be called on without ascertaining that a
G necessary witness was available (Reece v. Rigby125) and for
employing as expert witness a drunken surveyor without troubling
to make sure that he had taken proper measurements (Mercer v.
118 122
1 Esp. 74. 13 C.B.N.S. 677.
119 123
[1893] 1 Q.B. 491. (1849) 4 Ex. 503.
120 12t
14 App.Cas. 337. (1861) 2 F. & F. 467.
121 125
(1870) 5 Ch.App. 457. (1821) 4 B. & Aid. 202.
H. L.(E.) King 126 ). And it has been held an answer to an attorney's claim A
1967 for fees that he erroneously told the parties that they need not attend
• Rondel because the case would be adjourned (Montriou v. Jefferys 127)-
Worsley All these are matters in which he was in breach of his contract
w
LORDPEARCE ^ *"s c ' i e n t m t n e organisation of the case for presentation to
the court.
In Fergusson v. Lewis 12S at the Mayor's Court, a solicitor was B
held liable for breach of contract (but not gross negligence) in
failing to appear as an advocate at a magistrates' court, as he
had agreed to do, and he had to pay five guineas damages in
addition to the two guineas which he had received as his fee. His
real defence appears to have been that even Demosthenes could
not have secured the acquittal of his client. He did also lay claim C
to an advocate's immunity, but this contention in the absence of
any precedent was rejected. Nor was it a very satisfactory case
for such a contention in that he never did any advocacy but
merely in breach of his contract failed to come to court.
There has been cited to us a case in which a solicitor's negli
gence in advocacy has been held to disentitle him to sue for his D
bill of costs in the whole matter and not merely for the fees
relating to the attendance which he mishandled {Stokes v.
Trumper129). On an examination of witnesses on commission
when intending to cross-examine by interrogatories settled by
counsel he negligently examined in chief certain witnesses whereby
the case was lost. I find the report far from clear as to exactly E
what happened. But there is no trace in it that the question of
the immunity of an advocate was ever raised.
In Munster v. Lamb,130 however, the matter clearly came up
in respect of a solicitor's protection as an advocate in respect of
slander. There it was plainly assumed in his favour that he was
entitled to the same protection as counsel when acting in court as F
an advocate. It was argued on his behalf that though his conduct
was improper " his words were protected from being made the
subject of an action, by reason of his privilege as an advocate:" 131
Mathew J. then went on to consider cases dealing with the position
of a judge and witnesses and counsel, clearly equating the solicitor
advocate to counsel. In the Court of Appeal, Brett M.R. said 132 : G
"This action is brought against a solicitor for words
spoken by him before a court of justice, whilst he was acting
126 13
(1859) 1 F. & F. 490. ° 11 Q.B.D. 588.
127 131
(1825) 2 C. & P. 113. Ibid. 593, 594.
128 a32
(1879) 14 L.J. 700. Ibid. 599, 600.
129
(1855) 2 K. & J. 232.
A as the advocate for a person charged in that court with an H. L.CE.)

offence against the law." 1967
And: Rondel
v.
" I cannot find that there has been a decision of a court Worsley
of law with reference to such facts as are now before us, LORDPEARCB
that is, with regard to a person acting in the capacity of —
B counsel: but there have been decisions upon analogous facts;
and if we can find out what principle was applied in these
decisions upon the analogous facts, we must consider how far
it governs the case before us." 132
The chief point of the case was whether the advocate's immunity
was a limited or a complete immunity covering all remarks
Q whether bona fide or malicious, relevant or irrelevant. Brett M.R.
decided that it was the latter, basing all his reasoning on the
assumption that the solicitor advocate had the same protection
as counsel. He gave as his reasons 133 for the decision:
" A counsel's position is one of the utmost difficulty. He
is not to speak of that which he knows; he is not called upon
~ to consider, whether the facts with which he is dealing are
true or false. What he has to do, is to argue as best he can,
without degrading himself, in order to maintain the proposi
tion which will carry with it either the protection or the
remedy which he desires for his client. If amidst the diffi
culties of his position he were to be called upon during the
heat of his argument to consider whether what he says is
true or false, whether what he says is relevant or irrelevant,
E he would have his mind so embarrassed that he could not
do the duty which he is called upon to perform. For, more
than a judge, infinitely more than a witness, he wants pro
tection on the ground of benefit to the public. The rule of
law is that what is said in the course of the administration
of the law, is privileged; and the reason of that rule covers a
counsel even more than a judge or a witness."
F
In my opinion, on the reasoning of that case which extended
to a solicitor advocate on grounds of public policy the same
immunity as counsel, a solicitor, while performing counsel's func
tion in a court of law, would be entitled in spite of his contract
to the same immunity from suits for negligence.
G Since that is how the law stands today, one comes to the
second question: " Ought it to be altered in the public interest? "
On a quick, superficial view, one may well say that a client
ought to have a right to sue his counsel for damage due to his
negligence. But the matter is worthy of more than a superficial
132 133
11 Q.B.D. 588, 599, 600. Ibid. 603, 604.
H. L. (E.) consideration. F o r the present independence of counsel is a care- A

1967 fully considered part of a great legal system which has commanded
Rondel admiration from various parts of the world.
WOTSI T h e legal process inevitably creates hardships and it is not
—- always easy to see what is the right balance. I n attempting to d o
so one must regard the interrelation of the various parts.
It is a hardship that a m a n who has done no wrong should be B
subjected by a plaintiff to a baseless charge, in meeting which he
will incur large expense. T h e charge m a y be reported largely in
the newspapers and injure his reputation. A n d if a plaintiff can
by untruth persuade the legal aid fund that he has a good case,
the public purse will back the plaintiff's unjust attack. A n d yet
if it is finally proved baseless, the public purse will not p a y the C
innocent defendant's expenses or recompense the injury to his
reputation. T h e reason for this latter hardship is that it is rightly
considered that when a plaintiff's case has a prima facie appearance
of truth (which of course cannot be truly evaluated until there has
been investigation of both sides) it is wrong that it should be
stifled for lack of funds. This latter hardship will probably b e D
removed in time by the obvious remedy of the state regularly
paying the costs in cases where it has erroneously (as the subse
quent events show) backed a case. But the basic hardship is
inevitable and will always remain, namely, that any plaintiff can
use the legal machine as a sounding board for untruthful allega
tions and cause harm, trouble and expense to an innocent defen- E
dant, and yet the law holds him (and the Press who report the
case) immune from paying damages for their untruth. Yet to
remove this immunity would create a great injury to justice.
Without it, the honest litigant might not dare to bring an honest
claim for fear that if he fails he might be sued for damages.
For the same reasons witnesses are immune. I t is a cruel hard- F
ship if an untruthful witness not only slanders a man in court by
harmful allegations made negligently, unreasonably or dishonestly
against him, but actually by such evidence leads a judge or jury
to enter an erroneous judgment against him. Yet what can one d o
about it? T h e only remedy would b e to allow the injured party
to retry the issue, to prove that the witness was untruthful, and to G
get damages against him for the loss he has negligently or untruth
fully inflicted. Superficially that is the fair answer to the problem.
But the courts have rejected that superficial answer. Why?
A distinguished judge of the High Court of Australia, Starke J.,
in Cabassi V. Vila,13* citing many English authorities said:
134
(1940) 64 C.L.R. 130, 140 (Australia).
A " N o action lies in respect of evidence given by witnesses H. L.(E.)

in the course of judicial proceedings, however false and 1967
malicious it may be, any more than it lies against judges,
advocates or parties in respect of words used by them in the Rondel
course of such proceedings or against juries in respect of Worsley
their verdicts." LOR^PTARCE
In that case Starke J. held that no cause of action lay in respect
" even of conspiracy with regard to evidence at the trial, a decision
approved and applied by our Court of Appeal in Marrinan v.
Vibart.13S And in Hargreaves v. Bretherton136 Lord Goddard
C.J., in holding that an action for damages for perjury would not
lie against a witness, said " 7 :
£ " For if such an action could be brought, then, in these
days, when the State provides legal aid, half the prisoners in
England would try to bring actions and there would be an
abundance of these actions in the courts, which would be a
most unfortunate result."
And the law has even extended this immunity to defamatory
things said by a proposed witness to a party and a solicitor with
^ a view to preparing a proof of what evidence the witness may
give in court (Watson v. M'Ewan 137a ). The Earl of Halsbury L.C.
there said 137b :
" It is very obvious that the public policy which renders
the protection of witnesses necessary for the administration
of justice must as a necessary consequence involve that which
E is a step towards and is part of the administration of justice—
namely, the preliminary examination of witnesses to find out
what they can prove. It may be that to some extent it seems
to impose a hardship, but after all the hardship is not to be
compared with that which would arise if it were impossible
to administer justice, because people would be afraid to give
their testimony."
Thus, the reasons underlying the immunity of witnesses are:
first, that there would otherwise be a series of retrials and,
secondly, that an honest witness might be deflected by fear of
the consequences.
The courts might have limited the protection to things which
~, are relevant and necessary to the matters in issue and spoken
bona fide. But so important has it considered the functioning of
the judicial process that it has given a complete immunity even
to words spoken mala fide or maliciously or irrelevantly.
135 137
136
[1963] 1 Q.B. 528. 137a
[1959] 1 Q.B. 45, 52.
[1959] 1 Q.B. 45; [1958] 3 137b
[1905] A.C. 480, H.L.
W.L.R. 463; [1958] 3 All E.R. 122. Ibid. 487.
H. L.(E.) Some may think that this is a mistaken view, in that it creates A
1967 many hardships for which there is no relief. But it has been
R on d e l consciously and consistently (and, as I think, rightly) adopted by
tne courts
Wor'sley °f i n ' s country, regardless of the hardship that it often
causes, in order that a greater ill may be avoided, namely, the
LORD PEARCE
hampering and weakening of the judicial process.
So, too, a juryman is protected from liability for the damage B
caused by a biased or stupid or negligent or malicious verdict.
This is not intended as a protection for a biased or negligent or
malicious juryman. It is intended to protect the fair, careful and
honest juror. A n d it cannot avoid protecting the other kind
as well.
So with a judge. H e cannot be sued for an act done in his C
judicial capacity, even though corrupt (Scott V. Stansfield 138 )-
And on the fringe of the judicial process is the Press, which
may with impunity spread damaging libels provided that they
are a fair and accurate report of judicial proceedings—a valuable
and necessary immunity on grounds of public policy, yet one
which sometimes causes great and unfair hardship. This is not D
an immunity designed to protect the Press for their personal benefit.
It is an acknowledgment that they have an important function in
informing the public of what is happening in courts of law. A n d
they cannot perform that function properly if they have to look
over their shoulder at the possibility of writs for libel, which might
deter them from informing the public. E
The five essential ingredients of the judicial process at the trial
are the parties, the witness, the judge, the juror and the advocate.
If all those are functioning at their best, only very hard
coincidences of fate can cause a miscarriage of justice. If one of
them is not at his best the functioning of the others tends to correct
the balance. I do not believe that justice miscarries as often as F
some would have one believe. But of course the loser naturally
has a tendency to believe and an interest in maintaining that there
has been a n injustice. A n d when justice does miscarry I think it
is more often because two or three of the components were not
functioning at their best, rather than because of the specific
negligence of one of them. G
All those essential ingredients are, under the law as it now
stands, wholly protected in what they say and do (save that
counsel is answerable to professional discipline for misbehaviour).
Should he alone of the five be liable to his client in damages?
138
(1868) L.R. 3 Ex. 220.
A He, like the judge and jury, has a plain duty of care and a duty H.L.(E.)
to justice. He also has a duty to the judge and jury not to 1967
mislead them. But whereas the judge and jury owe this duty of Rondel
care equally to both sides, he owes it primarily to one side (subject warsiey
to his overriding duty to the court and justice). And whereas the
LORD PEARCE
judge and jury are paid by the public of whom both parties are
B members, the advocate is paid by one side only in many cases
(though in very many he is paid by legal aid from the public
purse). Should these two facts make the difference, and exclude
him from the immunity which has from of old been given to him
as well as to the other components of the judicial process? The
answer to this depends on whether one holds that the judicial
C process is of paramount public importance and whether one
believes that it would be harmed by excluding the independence
and immunity of counsel.
The law has given the advocate complete immunity for what
he says in court {Munster v. Lamb 139). Mathew J. there said 140:
"It may be inconvenient to individuals that advocates
D should be at liberty to abuse their privilege of free speech,
subjept only to animadversion or punishment from the pre
siding judge. But it would be a far greater inconvenience to
suitors if advocates were embarrassed or enfeebled in
endeavouring to perform their duty by fear of subsequent
litigation. This consequence would follow, that no advocates
could be as independent as those whose circumstances
E rendered it useless to bring actions against them."
On those grounds one must obviously continue to preserve
counsel's independent immunity from liability for putting forward
against the other side defamatory contentions which may after
wards prove to be baseless. (If he puts them forward without any
reasonable grounds he will in fact get into trouble from
F professional discipline).
One must obviously, I would think, continue to preserve the
client likewise from liability for wrongly causing such contentions
to be put forward by his advocate, great as may be the harm that
they may cause.
But will it harm the functioning of the courts if the advocate
G becomes somewhat less independent and although not answerable
to the other party or anybody else, is made answerable to his own
client? The advantage of making him answerable in the cases
(which I hope and believe are few and far between) where the
client has suffered from his negligence are obvious. Although the
140
"» 11 Q.B.D. 588. Ibid. 594, 595.
H.L.CE.) client cannot get relief in respect of loss caused by the faults of A
1967 the judge, jury, opposing party or opposing advocate, he could at
Ronde l least get reimbursement for that caused to him by the fault of his
own
Wor'sley advocate.
So far as concerns providing a spur to the advocate by the
L O R D PPARCF
possibility of actions for negligence, this is unnecessary. Both
solicitors and counsel are always keen to win a case and, incident- B
ally, to give satisfaction to their clients so far as this is compatible
with their duty to the court and to their professional standards.
This is as inevitable a part of their human makeup as is the
ambition of every judge to decide his cases right. Their danger
rather lies in that they may be too keen to win. Thus to provide
a spur is bad rather than good. C
The obvious disadvantages of withdrawing immunity from the
advocate are as follows: On occasions it is an advocate's duty
to the court to reject a legal or factual point taken in his favour
by the judge, or to remove a misunderstanding which is favourable
to his own case. This duty is of vital importance to the judicial
process. Fortunately it does not very frequently occur in a glaring D
form, though in a minor degree it is fairly constant. When it does
occur in a glaring form, it is very unpleasant for the advocate.
It is hard for him to explain to a client why he is indulging in what
seems treachery to his client because of an abstract duty to justice
and professional honour. In the difficult borderline case it is
undesirable that a man should be in danger of being influenced E
by the possibility of an action for negligence. The court has and
must continue to have implicit trust in counsel.
Moreover, in every case there is a large number of irrelevancies
and side issues that seem important to the client but are not of
help in deciding the case. The solicitor in preparing a case for
counsel is rightly loth to prune these too severely, for he is nearer p
to the client than is counsel, and it is therefore more difficult for
him to do it. He frequently (and rightly) leaves it to counsel to
perform that task. The court by tradition is entitled to expect
counsel to perform it. Were the client but able to appreciate it, its
performance is the surest way of winning a just case. How hard
this is for the client to appreciate is known to every advocate. And G
this is manifest in so many hopeless appeals where the appellant's
chief ground of complaint is that the judge has failed to give
weight to some irrelevant matters on which the client sets great
store.
It is important to justice that it should not get bogged down
in irrelevant details. The judge in this is often at the mercy of the
H L
A advocates who have a clearer view than he can have as to which - - (E-)
matters in the leading of evidence or in cross-examination will or 1967
will not turn out to be relevant as the case proceeds. As things R0ncjei
stand at present the judge trusts counsel. It is frequent for a y/vT'\
judge to say to counsel " I should not have thought it was relevant,
LORD PPARCF
but if you tell me it will turn out to be relevant, I shall allow —
B it." It is impossible to expect an advocate to prune his case of
irrelevancies against his client's wishes if he faces an action for
negligence when he does so. Prudence will always be prompting
him to ask every question and call every piece of evidence that
his client wishes, in order to avoid the risk of getting involved
in just such an action as the present. This is a defect which the
C possibility of an action for negligence would greatly encourage. It
is difficult and it needs courage in an advocate to disregard
irrelevancies which a forceful client wishes him to pursue.
This question is of great importance for two reasons. First, if
by good advocacy a case is cut down to its essentials, it is more
manageable and more likely to be justly decided by judge or jury.
^ Secondly, the time (and consequently the cost) is greatly
diminished. An unpruned presentation of a case may actually
double or treble the time which it would have taken to present
had it been properly pruned of all that was not relevant.
If, as I believe to be the case, the number of our judges in
g proportion to the work they do is much fewer than in other
countries, this is undoubtedly due in great measure to the fact
that a judge can trust counsel and that counsel can, in putting
forward his points or his evidence or in cross-examining, safely
look only to what the judge properly needs for deciding the case.
Hitherto he has not had to look over his shoulder and ask ques-
p tions in cross-examination or put forward evidence or take
points whose sole purpose is to assure the client that no stone
has been left unturned, so that he may not follow a defeat by
instituting an action for negligence against his counsel.
Great stress is laid on the argument that the immunity of the
advocate is " anomalous " to other professions. But the whole
G judicial process is anomalous to other professions. It is a thing
on its own. It is a unique and important process of the com
munity. The various ingredients of it are immune in respect of
the occasional hardships they may create by any failure on their
part. And even the Press which is not part of it but which
performs a service in respect of it shares this immunity. It can
just as well be said that it would be an anomaly to make the
H. l..(E.) advocate, alone among the other ingredients, liable for his failure A
1967 in the judicial process. In truth the facile use of the word
Rondel " anomalous " does not advance the matter.
Wonsiey ^ 1S argued forcibly that inability to sue his counsel is an
LOR-PEAR unjustifiable " deprivation " to the litigant. But in this connection
one has to consider also what privileges the litigant himself
receives on precisely these same grounds of public policy. He B
himself is immune from claims for all the damage which he him
self may cause (and it may be severe) both to the other party and
to any third party by the bringing of his action, and all the
allegations which are made in it by him (or by his counsel on his
behalf) whether negligently, unreasonably, maliciously or fraud
ulently. And the honest, reasonable litigant benefits by this C
immunity in that he is wholly free from the expensive risk of a
subsequent unjustifiable attack on those grounds. Particular cases
are in no way decisive or even indicative of the proper balance.
In the present case, however, it would seem not improbable that
Mr. Rondel is considerably the gainer by his own immunity. And
though each immunity may in particular cases cause hardship the D
balance is not, I think, unfair as it stands at present and certainly
it is not so unfair as to outweigh the cogent factors of public policy
which tell in its favour.
In so far as it may be argued that the advocate is unduly
fortunate in sharing the immunity of his fellows in the judicial
process, the judges, jurymen and witnesses, one must remember E
that he is faced with a difficult task, as Brett M.R.1*1 and Lord
President lnglis U 2 pointed out. He is entrusted with great licence
and potent weapons. These must not be used simply with an eye
to his client's advancement. They must be used in the pursuit of
justice and to elucidate the truth in the public interest with an
approach which is as biased in favour of his client's contentions as F
public considerations allow. The constant difficulty of inducing men
and women to undertake the profession of the Bar, with its strain,
hazard and rather austere self-discipline, is not wholly without
significance when one is considering whether the advocate is
unduly favoured as things stand at present.
A further important consideration is the fact that as matters G
are and have been for centuries a barrister is bound to provide
his services to a client who can pay his fee (or whose fees are
paid by the public Legal Aid Fund) if the case is one either in the
courts or in the advisory sphere in which a barrister normally
141
11 Q.B.D. 603, 604. " 2 3 R.(Ct. of Sess.) 914, 918.
A practises. This has been an essential feature of our law. Many H.L. (E.)
generations of students have been taught to follow Erskine's famous 1967
words in which he justified his unpopular defence of T o m Paine: Rondel
" F r o m the moment that any advocate can be permitted to Worsley
say that he will or will not stand between the Crown and the —r~
subject arraigned in the court where he daily sits to practise,
j> from that moment the liberties of England are at an end."
It is easier, pleasanter and more advantageous professionally
for barristers to advise, represent or defend those who are decent
and reasonable and likely to succeed in their action or their
defence than those who are unpleasant, unreasonable, disreputable,
and have an apparently hopeless case. Yet it would be tragic if our
C legal system came to provide no reputable defenders, representatives
or advisers for the latter. A n d that would be the inevitable result of
allowing barristers to pick and choose their clients. It not in
frequently happens that the unpleasant, the unreasonable, the
disreputable and those who have apparently hopeless cases turn
out after a full and fair hearing to be in the right. And it is a
D judge's (or jury's) solemn duty to find that out by a careful and
unbiased investigation. This they simply cannot do if counsel do
not (as at present) take on the less attractive task of advising and
representing such persons however small their apparent merits.
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 wholly
E unreasonable, 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 his counsel in order to ventilate his grievance by a
second hearing, either issuing a writ immediately after his defeat or
brooding over his wrongs until they grow greater with the passing
years and then issuing the writ nearly six years later (as in the
F present case)? This obvious difficulty is fairly acknowledged by
Mr. Blom-Cooper. H e seeks to mitigate it by the ingenious sug
gestion that the solicitor (who is allowed to pick and choose his
clients) may act as a screen or filter to protect counsel and that the
Legal Aid F u n d may d o likewise. But with all respect to that
argument it does not meet the case. First, it is not fair to solicitors
G or the Legal Aid Fund that they should have any such responsibili
ties to counsel. They have their own difficulties (which are great) in
trying to decide which are the honest cases and should be brought
(or defended) and it is they who should be entitled to help from
counsel in this. Secondly, and far more important, it is contrary
to the whole tenor of our law that there should be such a screen
ing and that any prisoner or litigant should be unable (though he
H. L. (E.) can p a y for jt) to obtain the services of counsel. It would greatly A
1967 increase the number of litigants in person, who already create not
Rondel inconsiderable difficulties. And it is to the great advantage of
l e courts tnat tne
Woreley ^ unreasonable should be advised and represented
—— by counsel, who can generally, to some extent, by firm suasion,
mitigate their unreason and find some via media by which their
case can be presented intelligibly and reasonably. B
I agree with Erskine that it would cause irreparable injury to
justice if there were any departure from the code which has so long
existed, that a barrister cannot pick and choose. To continue to
compel him to take cases, yet at the same time to remove his
independence and immunity, would seem unfair and unreasonable.
Moreover, in a human world such an unfair ruling rarely produces C
a satisfactory result. It results in evasions and the payment of
mere lip-service to the rule—evasions which any fair-minded
disciplinary tribunal would in the circumstances find it hard to
condemn. And thus evasions would increase. In my view, such
a rule would create a harm disproportionate to that which it seeks
to remedy. D
The independence of counsel is of great and essential value to
the integrity, the efficacy, the elucidation of truth, and the des
patch of business in the administration of justice. These matters
are of paramount importance. The suggested innovation must
lessen that independence and do an increasing and inevitable
disservice to the administration of justice. I would not, therefore, E
agree with it.
In opening his appeal Mr. Blom-Cooper fairly pointed out
the difficulties of excising from the major part of counsel's work
those matters which are only remotely, if at all, connected with
the courts. It would produce, to use his own words, " a jagged
edge." And Mr. Dunn emphasised these difficulties. Perring v. F
Rebutter1*3 showed clearly that the immunity was not confined
to things done in court, and the language of the courts dealing
with counsel's immunity clearly created no exceptions. It is
obvious that counsel's opinions, not only those on which an action
is to be started or not started (whether for the guidance of a
solicitor or the Legal Aid Fund), owe a duty of honesty to the G
courts, and should be written with fearless independence. And
therein lies much of their value. Moreover, it is important that
in respect of these and of other paper work the counsel should not
be allowed to pick and choose his clients. If a man, however
143
2 Mood. & R. 429.
A unreasonable or undesirable, wants to have counsel's advice or H. L.(E.)

paper work he should be entitled to have it. . If such a position 1967
is to remain unaltered, I do not think that it is either reasonable Rondel
or desirable to change the present independent immunity of Morale
counsel. The loss to the public as a whole would be greater than
the gain. It follows that I agree with the majority of the Court of
B Appeal.
I would dismiss the appeal.
LORD UPJOHN. My Lords, if a barrister on his way to plead

his client's case in the courts was asked whether he would be
liable in damages to his client if he mishandled the case, I think
C the answer, no doubt after some observations as to the absurdity
of such a possibility, would be that a barrister is immune from
liability for negligence in conducting his case. If pressed why the
barrister should be in this uniquely favourable position, I think
that (before this case) counsel would reply: "Because there is
no contract between a barrister and his client; the barrister is not
D entitled to sue for his fees, they are given to him as an honorarium,
so per contra the client cannot sue the barrister for his negligence."
If the barrister delved into this matter he would find much
authority to support his view. He would undoubtedly cite the case
of In re Le Brasseur and Oakley,1" a decision of the Court of
Appeal, and rely on the observations of Lindley L.J. when he
E said:
" But I think it is of the utmost importance that the court
should not assist barristers to recover their fees. If they do
so, the whole relation between a barrister and his professional
client will be altered, and a door will be opened which will
P inevitable result will be to do away with that which is the
great protection of counsel against an action for negligence
by his client."
The inference from that is plain; inability to sue for fees and
immunity from actions for negligence are correlative. He would
find support, too, for this view in other cases, such, for example,
Q as the Irish case of Robertson v. Macdonogk 145 and in the very
recent case of Lopes V. Adams and Vanier,1** decided in the
Supreme Court of British Guiana. The textbooks, too, would
support him. See, for example, Halsbury's Laws of England, 3rd
ed. (1953), vol. 3, p. 46, para. 66, and Winfield on Tort, 7th ed.
144 146
[1896] 2 Ch. 487, 494. (1965) 9W.L.R. 183, 187.
145
(1880) 6 L.R.Ir. 433, 438.
H.L.(E.) (1963), p. 185, through doubting its justification (the last edition A
1967 has been altered as a result of Hedley Byrne 147 ), and Salmond on
Rondel Torts, 14th ed. (1965), p. 283. Counsel for the appellant argues
v
- that if that is the true ground of the immunity of counsel from
negligence it is a bad one and that your Lordships should hold
ORD PJOHN t j i a t n o i o n g e r t 0 b e t jj e j a w j s e e much force j n that submis
sion and the question of immunity must be examined in detail; g
but before doing so there are three matters which may be stated
which are not in dispute and are indeed common ground. First,
it is clear that counsel cannot sue for his fees. This has been
established for nearly two hundred years and it is usually put
upon the ground that a barrister is of too high an estate to
condescend to the common arena to sue his client. Fees must be Q
regarded as pure honoraria (see Thornhill v. Evans,lis per Lord
Hardwicke, and In re May,1" per Kindersley V.-C). It is true that
Bayley J. in Morris v. Hunt150 put it on a more realistic though
humdrum basis that counsel should ensure that he is paid before
the case and the matter should not be left to chance afterwards,
so that he cannot thereafter maintain an action; not a very good jy
reason. Best J. in the same case 151 really put the inability of
counsel to sue upon the ground of public policy, namely, that
counsel should not thereby have any temptation to endeavour to
get a verdict. However, whatever reason may be ascribed it is
clear that counsel cannot sue for his fees and this applies equally
to fees for non-litigious work (see Mostyn v. Mostyri),1*2 though g
that was only a matter of admission, but in principle the admission
was clearly right.
Secondly, a barrister does not enter into a contract, express or
implied, with his client or with the solicitor who in all matters
pertaining to litigation necessarily stands between the barrister
and the lay client except in the case of dock briefs. At one time p
it was left open whether a barrister could expressly or impliedly
contract with his client in litigious matters though I have no doubt
it would always have been regarded as a breach of professional
etiquette for him to do so; but I regard it as settled by Kennedy
v. Broun 1M that in fact counsel is incapable of doing so. Paren
thetically the necessity for the marking of a fee on a brief before G
counsel appears in court is only because it is entirely contrary
to the etiquette of the Bar that he should admit his fee to depend
147 1S1
[19641 A.C. 465. Ibid. 555.
148 152
(1742) 2 Atk. 330. 5 Ch.App. 457.
149 153
(1858) 4 Jur.N.S. 1169. 13 C.B.N.S. 677.
150
1 Chit. 544, 551.
A on the result (see Bayley J. in Morris v. Hunt154). This incapacity H - L -(E)

to contract is important, for counsel for the respondent founds an 1967
argument upon it to which I must later return. To sum up the Rondel
result of these two points, fees due to counsel create no debt: wor'siey
Wells v. Wells " 5 ; In re Sandiford (No. 2).15e LORD~U7JOHN
Thirdly, although in the times of the Year Books, as the
B painstaking judgment of Lawton J. has shown, barristers could
have been sued for negligence, at that time, as the learned judge
points out, the distinction between an attorney and a barrister
was far from clear. Such liability was indeed regarded as argu
able in the case of Bradish v. Gee.157 But since those days it is
quite clear that no one has ever successfully sued a barrister for
C negligence. As long ago as 1791 Kenyon C.J. in Fell v. Brown 158
regarded this immunity as elementary and the great Erskine must
have agreed with him for he gave up his plea that a barrister
could be sued even for crassa negligentia. This has been accepted
in every case since (see, for example, Perring v. Rebutter 159; in
Scotland Purves v. Landell160 and in Ireland Mullican v.
D M'Donagh,161) and was, in my opinion, subject only to the views
of your Lordships, settled in the case of Swinfen v. Lord
Chelmsford.191*
Nevertheless, counsel for the appellant is entitled to urge that
this so far admitted immunity rests upon wrong grounds and that
your Lordships should reconsider the whole matter.
E My Lords, before considering the question of the alleged
immunity of counsel one must examine the general law and test
it in that light. The general principle is that if one undertakes
to perform a service or to give advice gratuitously for another in
circumstances in which it is clear that the other relies upon those
services or upon that advice, then, gratuitous though the labour
F or advice may be, the performer of the services or the giver of
the advice is liable to the other if he does so negligently. This
was laid down by Kenyon C.J. in the great case of Wilkinson v.
Coverdale1™ where he held that a plea (subsequently in fact not
established) that the plaintiff could recover on a gratuitous pro
mise to effect a policy of insurance which he negligently failed
G to carry out was maintainable. And see Tindal C.J. in Lanphier v.
Phipos1*3 who stated the principle in most general terms: " Every
154 159
1 Chit. 544, 551. 2 Mood. & R. 429.
iss [i9i4] p. 157. 3 0 T L . R . 545, lao CI. & F. 91.
l2
161
C.A. 5 IrJur. 101.
156
[1935] Ch. 681. i«i» 5 H. & N. 890.
157 162
(1754) 1 Amb. 229. 1 Esp. 74.
158 163
Peake 131. 8 C. & P. 475, 479.
H. L.(E.) person who enters into a learned profession undertakes to bring A

1967 to the exercise of it a reasonable degree of care and skill."
Rondel The principle has frequently been restated and applied; to
Worsiey &ws three examples all in your Lordships' House, see Nocton v.
, Ashburton1M where Lord Shaw of Dunfermline stated the prin-
LORD UPJOHN . . , , . . . . . .
ciple though basmg it on innocent misrepresentation by an adviser
upon whose advice another was entitled to rely; Banbury v. Bank B
of Montreal,165 where Lord Atkinson took the example of the
liability of a doctor for negligent treatment even where a patient
was insensible at the time and incapable of employing him; and
finally in Hedley Byrne & Co. Ltd. v . Heller & Partners Ltd.,1*"
where Lord Morris of Borth-y-Gest summed it up in this w a y :
" i f someone possessed of a special skill undertakes, quite C
irrespective of contract, to apply that skill for the assistance
of another person who relies upon such skill, a duty of care
will arise."
Physicians suffered with barristers the like inability to sue for fees
until the law was altered by statute in 1858 (since when only
Fellows of the Royal College of Physicians of London enjoy that D
disability) and this inability has usually been expressed to be on
the same ground as that of counsel, i.e., they, with counsel, are
of too high a standing to stoop to sue (see per Lord Kenyon C.J.
in Chorley v . Bolcot167 and Voucher v . Norman 1 6 8 ). Nevertheless,
physicians have constantly been found liable for crassa negligentia
in the advice or treatment that they have given (see Lanphier v. E
Phipos1™ and Pippin v. Sheppard170; Everett v. Griffiths171 per
Scrutton L.J.). But it cannot be doubted that a physician can
contract with his patient, seldom though this may happen. T h e
liability of a physician cannot with any sense of reality be
distinguished from that of counsel as depending upon liability p
for trespass to the person.
So prima facie counsel undertaking his client's case falls within
the general rule that he will be liable for negligence. I have, I
hope, said enough to show his immunity (if it exists) from this
general rule cannot depend on his status or his inability to sue
(where he is in pari materia with a physician). In his incapacity G
to contract, he is to be distinguished from a physician and upon
this, as I have already mentioned, the respondent founds an argu-
164 168
[1914] A.C. 932, 972. 3 B. & C. 744.
165 16
[19181 A.C. 626, 689. ° 8 C. & P. 475.
166 17
[1964] A.C. 465, 502. ° (1822) 11 Price 400.
167 l71
4 Durn. & E. 317. 318. [1920] 3 K.B. 163, 193.
A ment. It comes to this, that if counsel is incapable of contracting H.L.(E.)

he cannot expressly or impliedly contract. It is said that the 1967
general rule from Wilkinson v. Coverdale172 to Hedley Byrne173 is Rondel
based on a capacity to contract for there must be something akin worsley
to contract to involve liability for a gratuitous act; a voluntary ¥ —-
„ , . . . , . . . , , c LORD UPJOHN
assumption of liability is equivalent to a contract and some of —
B the observations of your Lordships but in a different context in
the last mentioned case were relied on.
I cannot accept this view. It seems to me clear that prima
facie counsel falls within the general principle. His lay and
professional clients go to him for his special skills in the field
in which he practises; the greatest reliance is always placed on
C those skills, as no one knows better than the barrister concerned.
To escape from the general rule merely because of an incapacity
to contract is a proposition which today is entirely unacceptable,
and not warranted by any authority.
Therefore, the immunity of the barrister, if it exists at all, must
depend on some other ground than his status, his inability to sue
D or his incapability to contract. I think that public policy neces
sitates that, at all events in matters pertaining to litigation, a
barrister should have this immunity, and basically it depends upon
two factors. First, a barrister is in a unique position, even different
from a physician, for he is bound to undertake litigation on
behalf of a client provided that it is in the usual way of his
E professional practice and that he is properly instructed or, to put
it more bluntly, properly paid according to his standing at the Bar.
Whatever may be the powers of counsel to compromise civil litiga
tion contrary to his client's instructions during its course there
can be no doubt that, however much he may believe it to be in
the interests of his client that the latter should plead guilty, if
F the client refuses to accept that advice counsel is bound to
continue with the defence of the prosecution, however distasteful
it may be. I make no apology for quoting yet again the famous
words of Erskine when he accepted a brief to defend Tom Paine:
" From the moment when any advocate can be permitted to
say that he will or will not stand between the Crown and the
G subject arraigned in the courts where he daily sits to practise,
from that moment the liberties of England are at an end."
That at once distinguishes the position of the barrister from even
the physician, who is not bound to undertake any treatment which
he does not advise.
173 1M
1 Esp. 74. [1964] A.C. 465.
H.L.(E.) The second and more important consideration is that the bar- A
1967 rister is engaged in the conduct of litigation whether civil or
Rondel criminal before the courts. H e is not an officer of the court in the
s a m e st ct sense tnat a
Worsley " solicitor is; if a solicitor fails in his duty
to the court he is subject to the jurisdiction of the court, which
LORD UPJOHN , . , , , , .
can, and in proper cases does, make summary orders against him.
The barrister is not subject to any such jurisdiction on the part B
of the judge. To take a simple example: if a solicitor is not
present in court personally or by an authorised representative, he
is open to be penalised by being ordered to pay personally costs
thrown away, at the discretion of the judge. If counsel is not
present, it may be that the judge will express his views upon the
matter but I do not believe he has any power over counsel save C
to report him to the Benchers of his Inn. But while the barrister
is not an officer of the court in that sense he plays a vital part
in the proper administration of justice. I doubt whether anyone
who has not had judicial experience appreciates the great extent
to which the courts rely on the integrity and fairness of counsel
in the presentation of the case. I d o not propose to expand this at D
very great length, for it has been developed in the speeches of those
of your Lordships who have already spoken upon this matter; but
while counsel owes a primary duty to his client to protect him
and advance his cause in every way, yet he has a duty to the court
which in certain cases transcends that primary duty. I think that
the Scots case of Batchelor v. Pattison and Mackersy 174 sets out E
in a lengthy passage, which I will not quote, a very useful des
cription of the independent conduct required of counsel in the
conduct of a case. But I may mention some duties cast upon the
barrister; if in a civil case the client produces a document which
may be nearly fatal to his case it is the duty of counsel to insist
on its production before the court; the client may want counsel F
to drag his opponent through the mire by asking a number of
questions in cross-examination in the hope that the opposition may
be frightened into submission. Counsel here has equally a duty
to the court not to cross-examine the opposition save in accord
ance with the usual principles and practice of the Bar. In a
criminal case it is the duty of counsel not to note an irregularity
and keep it as a ground of appeal to the Court of Appeal (Criminal
Division) but to take the point then and there. This may be
seriously prejudicial to his client's case (see Rex v. Neal1™).
174 175
3 R. (Ct. of Sess.) 914, 918. [1949] 2 K.B. 590; 65 T.L.R.
557; [1949] 2 All E.R. 438, C C A .
1 A.C. ANli PRIVY COUNCIL 283
A Counsel is equally under a duty with a view to the proper and H.L.(E.)
speedy administration of justice to refuse to call witnesses, though 1967
his client may desire him to do so, if counsel believes that they Rondel
will do nothing to advance his client's case or retard that of his warsley
opponent. So it is clear that counsel is in a very special position
, . . . . . , . . . LORD UPJOHN
and owes a duty not merely to his client but to the true admim-
B stration of justice. It is because his duty is to the court in the
public interest that he must take this attitude. It is this considera
tion which has led to the immunity from defamation of counsel,
as of the judge and the witnesses, for all that he says in court, for
all the questions that he asks and for the suggestions he may make
to the witnesses on the other side. This immunity is just as neces-
C sary in his general conduct of the case as in the case of defamation,
not to protect counsel who abuses his position but to protect those
who do not, for the reason that, in the words of Fry L.J. in
Munster v. Lamb,179 ". . . it is the fear that if the rule were
otherwise, numerous actions would be brought against persons
who were merely discharging their duty." Counsel may deliber-
D ately decide beforehand not to call a witness but anyone who has
practised at the Bar knows the stresses and strains that counsel
undergoes during the course of a case. It is all in public; immedi
ate decision may have to be made as to whether to call or not to
call a witness and even more quickly whether to ask or not to ask
a question. The judge may, for even judges are human, be
E perhaps unreceptive to counsel's case. All these circumstances
may place counsel in a bad light with his client. If counsel is to
be subject to actions for negligence it would make it quite
impossible for him to carry out his duties properly. I am not, of
course, suggesting for one moment that the fact that counsel does
or does not call a witness, or does or does not ask a question or
F does or does not ask to amend his pleadings could possibly by
itself be a cause of action for negligence, even if " jobbing back
wards " on mature reflection it had been better if counsel had
pursued an opposite course. The most that can be said is that
he committed an error of judgment. But if the law is that counsel
can be sued for negligence it is so difficult to draw the line
G between an alleged breach of duty where none in fact had been
committed; a mere error of judgment; and negligentia or indeed
crassa negligentia and counsel might be sued in actions which may
well turn out to be quite misconceived: this case may, indeed,
be a very good example of it. But if the threat of an action is
176
11 Q.B.D. 588, 607.
H.L.(E.) there counsel would be quite unable to give his whole impartial, A
1967 unfettered and above all, uninhibited consideration to the case from
Rondel moment to moment, and without that the administration of justice
Worsley would be gravely hampered. So that in litigation it seems to me
—— quite plain that immunity from action is essential in the interests
LORD UPJOHN , , , . . . » . . , . , ,.
of the administration of justice as a whole upon the ground of
public policy. Regrettable though it may be, if in any case counsel JJ
does commit an actionable wrong (but for the immunity) the client
who suffers must do so without requite in the public interest.
I am quite unable to agree with the argument of counsel for
the appellant that this immunity is any new ground of public
policy. It is all part and parcel of the long-established general
policy that judges, witnesses and counsel must be immune from C
actions arising out of their conduct during the course of litigation
in the public interest. That is sufficient to dispose of this appeal.
However, your Lordships have had some discussion upon two
cognate questions; though they d o not arise for decision they
should be discussed.
The first question is as to the liability of a solicitor for acts D
of negligence during the conduct of his client's case in an inferior
court when acting as an advocate. I see n o reason why a solicitor
acting as an advocate should not claim the same immunity as can
counsel, in my opinion, for acts of negligence in his conduct of
the case. But this principle, I have no doubt, must be rigorously
contained, for it is only while performing the acts which counsel E
would have performed had he been employed that the solicitor can
claim that immunity. Thus, for example, if he so fails properly
to instruct himself he cannot claim any immunity. See the interest
ing Canadian case of Leslie v. Ball1" where Hagarty J. said:
" I f a Canadian attorney, having full knowledge of cer-
tain material facts, or the existence of material evidence, uses P
his privilege of acting as counsel himself, and wholly omits
urging such facts or calling such evidence, I think he cannot
complain if he be treated exactly as if he had omitted properly
to instruct counsel."
So, too, a solicitor w h o is going to act as the advocate cannot
claim immunity if he fails to appear at the right time on the duly G
appointed day for the hearing of the case, for, in contrast to the
barrister who is incapable of contracting with his client, and for
the reasons I have given is in any event immune, the solicitor is in
breach of contract. See Fergusson v. Lewis.17" So, too, a solicitor,
177 17a
(1863) 22 U.C.R.Q.B. 512, 516. 14 L.J. 700.
A although acting as advocate, will be liable for negligence if he H.L.(E.)

fails to give notice of appeal within the proper time or if he fails 1967
to make diligent inquiry as to possible witnesses, or fails to make Rondel
the proper arrangements for their attendance; although for my worsiey
part I think that the case of Scudder v. Prothero & Prothero m —
was probably wrongly decided on its facts. Lord Pearce in his —
B speech has mentioned a number of examples where an attorney
has been held liable for breach of duty and many other examples
could be mentioned where a solicitor, even if the advocate in the
case, would not be excused. So I think the general result is likely
to be that a solicitor acting as advocate will only be immune from
the consequences of his negligence while he is actually acting as
C an advocate in court on behalf of his client or settling the plead
ings. Thus he would be immune if, having secured the attendance
of witnesses, he negligently fails to call one of them. The only
reported case referred to your Lordships of a solicitor being held
negligent for his conduct while engaged in what I may describe
as pure advocacy is the case of Stokes v. Trumper 18° before Page
D Wood V.-C. That case is so obscure and based on procedure not
current for very many years that I do not understand it. It may
well be that it was, with all respect to that great judge, wrongly
decided.
I appreciate that these general observations leave a large field
for decision of the limits of this doctrine of immunity in relation
E to solicitors which I have only tentatively explored. Thus counsel
in settling pleadings would, in my present though not final view,
be immune from action if, being properly instructed upon the
relevant facts, he failed to plead the relevant Statute of Limita
tions. Would a solicitor be entitled to a similar immunity (see
Fletcher & Son v. Jubb, Booth and Helliwelt)! 181
F The second question is whether counsel acting in non-litigious
work would be immune for giving advice negligently. But first,
perhaps, I should, however tentatively, suggest where I think the
immunity of counsel engaged in litigation should start. Clearly it
must start before counsel enters the doors of the court to conduct
the case. He will have had to give fearlessly to his client advice
G 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 his client's wishes.
As a practical matter, I do no more than suggest that the immunity
181
179 " T h e Times," March 16, [1920] 1 K.B. 275; 36 T.L.R.
1966. 19, C.A.
180
2 K. & J. 232.
1 A.C. 1969. 10
H..L.(E.) of counsel in relation to litigation should start at that letter before A

1967 action where, if my recollection is correct, taxation of party and
Rondel party costs starts.
Warsiey What, then, of the immunity of counsel before that stage or
. "Tj- when acting in matters which could not possibly be described as
pertaining to litigation but rather as pure paper work such as
drafting of wills, settlements, conveyance, real property contracts, B
commercial contracts, charterparties or giving advice generally
which are not done with a view to litigation but rather with a
view to defining the rights of the parties and, in many cases,
to avoid litigation. And in this class I think must be included
that large class where settlements are entered into with a view
to the avoidance of some fiscal liability probably at a later stage, C
though it may be recognised that such settlements may well be
challenged by the Board of Inland Revenue at the appropriate
time. I think this is a most difficult matter; I find it very difficult
to see upon what principle the immunity which all of your Lord
ships are agreed must, as a matter of public policy, be granted to
counsel while acting in litigious matters should extend to matters D
which are not litigious. It is true that the case of Perring v.
Rebutter182 has been quoted as an authority that counsel's
immunity extends beyond litigious matters. But I do not myself
think that the authority goes that far. In the old days a special
pleader could not appear in court but he was essentially one who
was concerned with settling the pleadings which were all part E
of the court action. So, as I have ventured to define the area of
litigation, the special pleader would fall within it. Nor for my
part can I derive any assistance from Mostyn's case 183 in this
respect. I can find nothing in that report which goes to counsel's
immunity. However, in my opinion, there is this to be said. I
cannot myself see that the case of Hedley Byrne 1S* has made the ™
slightest difference to the liability of counsel if it exists in this
respect. If there is, as I think, any liability upon counsel in
respect of non-litigious matters that was inferentially pointed out
in the case of Nocton v. Ashburton 185 as long ago as 1914. That
then caused no excitement amongst counsel (so far as is now known) Q
and for my part I am quite unable to understand why Hedley
Byrne I86 when properly understood should cause all the excite
ment which of course it has done within the profession today.
182 185
2 Mood. & R. 429. [1914] A.C. 932.
i«3 5 Ch.App. 457. 186
[1964] A.C. 465.
184
[1964] A.C. 465.
A Finally, it must be remembered that counsel is not liable in H. L.(E.)

negligence merely because he expresses an opinion which ulti- 1967
mately turns out to be wrong nor merely because he overlooks one Rondel
of a number of relevant authorities. Further, in spite of the worsley
expression of Lynskey J., in Pentecost v. London District , ——
. , . , „ , , , ... ,. , LORD UPJOHN
Auditor187 that so far as civil proceedings are concerned gross
B negligence is not known to the English common law, I remain of
opinion that counsel will only be guilty of crassa negligentia or
gross negligence by some really elementary blunder: see Purves
v. Landell.18*
My Lords, for these reasons I would dismiss the appeal.
C LORD PEARSON. My Lords, for more than a hundred years it

has been a settled principle of English law that the arrangement
between barrister and client (which is made through the agency of
a solicitor, except in the case of a dock brief) for the barrister
to conduct litigious business for the client is not a contractual or
otherwise legally binding arrangement. The relationship of bar-
D rister and client in respect of litigious business does not create
legal rights or legal obligations. The client does not make a
legally binding promise that he will pay the barrister his fees. The
barrister does not make a legally binding promise that he will act
for the client or that when so acting he will exercise due care and
skill. Therefore, the barrister has no right of action against the
E client for fees, and the client has no right of action against the
barrister for breach of undertaking or for negligence.
It seems to me that is the broad conclusion which emerges
from the authorities. But there are several aspects to be con
sidered. I should make it plain at the outset that the only liability
under consideration is liability for negligence or breach of con-
F tract. No doubt, if a barrister were guilty of collusion or otherwise
dishonest conduct, the client would have a remedy. But no
question of that kind arises here.
The inability of a barrister to sue for his fees has been estab
lished for a very long time. His fees for advocacy are mere
honoraria: Moor v. Row 189; Viner's Abridgment, 2nd ed., (1792)
G vol. 6, p. 478; Blackstone's Commentaries, 8th ed. (1778), vol. 3,
p. 28: " I t is established with us, that a counsel can maintain no
action for his fees; which are given, not as locatio vel conductio,
but as quiddam honorarium; not as a salary or hire, but as a mere
187 lss
[1951] 2 K.B. 759, 766; [1951] 189
12 CI. & F. 91.
2 T.L.R. 497; [1951] 2 All E.R. 330, (1629) 1 Rep.Ch. 21; 5 Car.
D.C. 1, fol. 168.
H. L. (E.) gratuity, which a counsellor cannot demand without doing wrong A

1967 to his r e p u t a t i o n " : Turner v . Philipps™0; Morris v . Hunt121;
Rondel Kennedy v. Broun1B2; Mostyn v. Mostyn m ; In re Le Brasseur
WoVrsley and
Oakley iai; Wells V. Wells1"5; In re Sandiford (No. 2). 196
There was also in Ireland Robertson v. Macdonogh107 citing with
L O R D PEARSON
— approval and following the judgment in Kennedy v. Broun.198
The immunity of a barrister from legal liability for breach of B
his undertaking to appear for the client and from liability for
negligence in the conduct of the case has been well established
for more than a hundred years. There were some early dicta to
the effect that a barrister might be liable, e.g., in Bradish v. Gee, 199
but there seems to have been no decision holding a barrister liable.
There has been a series of decisions holding a barrister not liable. C
Fell V. Brown200; Perring v. Rebutter201; Swinfen v. Lord
202
Chelmsford ; cf. In re Le Brasseur and Oakley.203 The same
position has been recognised in Scotland and Ireland. Purves
V. Landell20i; Batchelor v . Pattison and Mackersy 205; Mullican
V. M'Donagh.206
The immunity is from tortious as well as contractual liability. D
In this connection the view taken by the court in Perring v .
Rebutter207 is important, because the action was on the case for
professional negligence rather than breach of contract. A s the
report is quite short, I will set it out:
" This was a n action on the case against the defendant
as a special pleader. The declaration alleged that the defend- E
ant carried on the business and profession of a special
pleader, and had taken out a certificate as such, and under
took to advise on matters of law, and to draw and advise on
the proper pleas to be drawn to actions, for fees and reward
in that behalf, whereby it became his duty to use due dilig
ence, etc. That a certain action had been brought against the
plaintiff, and the defendant was retained and employed by F
him to advise on the proper plea and defence to be made,
and so negligently conducted himself, and misadvised the
defendant (alleging the steps advised by the defendant), that
the defence failed. The declaration alleged that the defendant
was not nor ever had been a barrister. Pleas, 1st, Not guilty,
and other pleas traversing the material allegations of the
G
180 199
Peake 166. 1 Amb. 229.
191 20
1 Chit. 544. ° Peake 131.
102 201
13 C.B.N.S. 677. 2 Mood. & R. 429.
193 202
5 Ch.App. 457. 5 H . & N . 890.
194 203
[1896] 2 Ch. 487. [1896] 2 Ch. 487, 494.
195 [ 1 9 i 4 ] p 157. 204 12 c i . & F. 91, 103.
196 205
[1935] Ch. 681. 3 R. (Ct. of Sess.) 914, 918.
197 2 6
6 L.R.Ir. 433. ° 5 Ir.Jur. 101.
207
" « 13 C.B.N.S. 677. 2 Mood. & R. 429.
A declaration. On the case being called on, Lord Abinger C.B. **•L- ® )
said he had read the declaration and did not see how this 1967
action could be maintained. Such an action was certainly not —
R
maintainable against a barrister, and in his opinion there was °ndei
no distinction between the case of a barrister and that of a Worsley
certificated special pleader. Upon this intimation of his Lord- LQRDPEARSON
ship's opinion, a conference took place between the counsel,
B and the case was settled by withdrawing a juror."
Although the essence of the ratio decidendi in Swinfen v. Lord
Chelmsford208 and Kennedy v. Broun2"" was the absence of a
contract between barrister and client in relation to litigation, I
think it appears from the course of the arguments as well as the
judgments that the reasoning should be understood as ruling out
C tortious as well as contractual liability. In Swinfen v. Lord
Chelmsford,210 after counsel had cited in argument certain cases
relating to liability for negligence in performing gratuitous services,
Bramwell B. said: " The general doctrine is clear; the only ques
tion is, whether the case of counsel is an exception." In fact the
action on the case for professional negligence, independently of
D contract, is an ancient form of action, recognised but not invented
in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.211 I do not
accept the argument, though it was cogently presented on behalf
of the appellant, that the Hedley Byrne case has altered or redis
covered anything in the barrister and client relationship, at any
rate so far as litigious business is concerned.
E Moreover, if there were any legal rights or obligations created
by this relationship, they would have to be contractual because
the arrangement is contractual in form: the client through his
solicitor makes his offer by delivering the brief, and the barrister
accepts it.
I think it is right to say that the barrister's immunity from
F liability for professional negligence in the conduct of litigation is
an exception from a general rule of professional liability. It is
based on public policy. In order to show the recognised basis and
scope of the exception, I will cite some passages from authoritative
judgments.
Q The judgment of the Court of Exchequer in Swinfen v. Lord
Chelmsford212 is important for the decision and for the reasoning
so far as it goes, but it does not fully elucidate the doctrine, be
cause there was a difference of opinion in the court on some points,
208 211
5 H. & N. 890. [1964] A.C. 465.
2 B 212
<> 13 C.B.N.S. 677. 5 H. & N. 890.
210
5 H. & N. 890, 911.
H.L. (E.) which were therefore not dealt with. There are, however, two A
1967 passages of major significance:
Rondel " W e are all of opinion that an advocate at the English
Wor'sley ^ ar « accepting a brief in the usual way, undertakes a duty,
but does not enter into any contract or promise, express or
LORD PEARSON implied. Cases may, indeed, occur, where, on an express
promise (if he made one), he would be liable in assumpsit;
but we think a barrister is to be considered, not as making a **
contract with his client, but as taking upon himself an office
or duty, in the proper discharge of which not merely the
client, but the court in which the duty is to be performed, and
the public at large, have an interest." 213
And
" A counsel is not subject to an action for calling or not C
calling a particular witness, or for putting or omitting to put
a particular question, or for honestly taking a view of the
case which may turn out to be quite erroneous. If he were
so liable, counsel would perform their duties under the peril
of an action by every disappointed and angry client." 21*
The doctrine was further developed in the judgment of the rj
Court of Common Pleas in Kennedy v. Broun.21' It was shown 216
that the suggested distinction between express or special contracts
and implied contracts was unsound. " A special contract differs
from an implied contract only in the mode of proof. . . . The
incapacity depends on the subject-matter of the contract, not on
the mode of proof." I think the most important passages in the g
judgment are these:
" We consider that a promise by a client to pay money to
a counsel for his advocacy, whether made before, or during,
or after the litigation, has no binding effect; and, further
more, that the relation of counsel and client renders the parties
mutually incapable of making any contract of hiring and
service concerning advocacy in litigation. For authority in F
support of these propositions, we place reliance on the fact
that in all the records of our law, from the earliest time till
now, there is no trace whatever either that an advocate has
ever maintained a suit against his client for his fees in
litigation, or a client against an advocate for breach of a
contract to advocate: and, as the number of precedents has
been immense, the force of this negative fact is proportionably G
great." 217
" . . . These are authorities for holding that the counsel
cannot contract for his hire in litigation. The same authorities
we rely on to shew that the client cannot contract for the
213 216
5 H. & N. 920. Ibid. 732, 733.
214 21T
Ibid. 921. Ibid. 727, 728.
215
13 C.B.N.S. 677.
A service of counsel in litigation. There is the same absence H. L.(E.)

of any precedent for such an action: and the reason for the 1957
one incapacity is good for both. . . . The proposition is con- — -—
Ro del
fined to incapacity for contracts concerning advocacy in litiga- "
tion. This class of contracts is distinguished from other classes Worsley
on account of the privileges and responsibility attached to LORD~PEARSON
such advocacy: and, on this ground we consider the cases
g unconnected with such advocacy to be irrelevant. Thus, the
barrister who contracted to serve as returning officer—Egan
v. The Guardians of the Kensington Union218; and the bar
risters who contracted to serve as arbitrators—Vivary [sic]
v. Warned Hoggins V. Gordon,220 Marsack v. Webber221;
and the barristers who contracted either for an annual sum
by way of retainer (39 H. 6, fol. 21, pi. 31), for an annuity
_, pro consilio impenso et impendendo (Plowd. Com. pages 32,
150)—made contracts not concerning litigation, and therefore
not within the incapacity here in question. . . ." 2 2 2
" If the authorities were doubtful, and it was necessary to
resort to principle, the same proposition appears to us to be
founded on good reason. . . ." 2 2 3
_. " On principle, then, as well as on authority, we think that
there is good reason for holding that the relation of counsel and
client in litigation creates the incapacity to make a contract
of hiring as an advocate. It follows that the requests and
promises of the defendant, and the services of the plaintiff,
created neither an obligation nor an inception of obligation,
nor any inchoate right whatever capable of being completed
and made into a contract by any subsequent promise." 224
E
In a Scottish case, Batchelor v. Pattison and Mackersy22* the
advocate and the agent (a writer to the signet) were sued by the
client for alleged mishandling of- the case in court. The sheriff-
substitute found that the pursuer's allegations were irrelevant and
insufficient to support the conclusions of the action, and he there-
p fore dismissed the action. The sheriff adhered. On appeal the
First Division of the Court of Session upheld the decision and
refused the appeal. The Lord President in his judgment dealt
both with the position of the advocate and with the position of
the agent. As to the advocate he said 2 2 6 :
" A n advocate in undertaking the conduct of a cause in
G this court enters into no contract with his client, but takes on
not to his client only, but also to the court, to the members
218 222
219
(1841) 3 Q.B. 935n. 223
13 C.B.N.S. 677, 729.
Viramy v. Warne (1801) 4 224
Ibid. 736.
Esp. 47. Ibid. 739. 740.
220 225
(1842) 3 Q.B. 466. 3 R.(Ct. of Sess.) 914.
221 226
(1860) 6 H. & N. 1, 5. Ibid. 918.
H. L.(E.) of his own profession, and to the public. From this it follows ^
1967 that he is not at liberty to decline, except in very special
circumstances, to act for any litigant who applies for his
Rondel advice and aid, and that he is bound in any cause that comes
Worsley into
t0
court to take the retainer of the party who first applies
LORD"PEIRSON *"m- *l f °ll° w s > ^ s 0 ' t n a t he cannot demand or recover
by action any remuneration for his services, though in prac
tice he receives honoraria in consideration of these services. n
counsel whenever he pleases, and employ another, it is by
no means easy for a counsel to get rid of his client. O n the
other hand, the nature of the advocate's office makes it clear
that in the performance of his duty he must be entirely
independent, and act according to his own discretion and
judgment in the conduct of the cause for his client. . . . " „
In the case of In re Le Brasseur and Oakley,221 a barrister was
claiming to set off fees payable to him by solicitors for his acting
as counsel in proceedings before a Parliamentary Committee
against sums due from him to the same solicitors. The barrister's
claim was rejected by Kekewich J. and the Court of Appeal.
Lindley L J . said 2 2 8 : JJ
" . . . I think it is of the utmost importance that the court
should not assist barristers to recover their fees. If they do so,
the whole relation between a barrister and his professional
client will be altered, and a door will be opened which will
inevitable result will be to do away with that which is the
great protection of counsel against an action of negligence by E
his client."
Lopes L.J. said 229:
" I entirely agree that the court cannot and ought not to
assist a barrister in recovering his fees. Their payment is
only a matter of honour. It is open to counsel, if h e thinks
fit, not to accept a brief unless the fee is prepaid, and it would p
be contrary to all the decisions, and I think against good
policy, to hold that counsel's fees are recoverable. The deci
sion of the Court of Common Pleas in Kennedy v. Broun230
has always been acted upon, and it establishes the unqualified
doctrine that the relation of counsel and solicitor renders the
parties mutually incapable of making any legal contract of
hiring and service in regard to litigation. That rule has existed
for a long time, and, speaking for myself, I should be very G
sorry to see it in any way impugned."
Rigby L J . agreed 2 S 1 with the order and the reasons for it and
especially with what had been said about counsel's fees.
227 2S0
[1896] 2 Ch. 487. 13 C.B.N.S. 677.
228 231
[1896] 2 Ch. 494. [1896] 2 Ch. 487, 496.
229
Ibid. 495. 496.
A It has been suggested that the reasoning of the Court of H..L.(E.)

Appeal, especially Lord Lindley, in the case of In re Le Brasseur 1967
and Oakley232 was defective, in that it was being said that because Rondei
a barrister could not sue for his fees therefore he must be immune „, v-.
Worsley
from any liability for negligence. But I think that this criticism is
RD
based on a misunderstanding of the reasoning, which was entirely i
B sound. The reasoning was that the relation between the barrister
and the client (acting through his solicitor) is non-contractual.
and does not create legal rights or obligations on either side, so
that the barrister can neither sue for his fees nor be sued for
negligence; but if the courts were to decide that the barrister could
sue for his fees, the decision would mean that there is a con-
C tractual relationship, and it would follow that he could be sued for
negligence in the conduct of a case.
These are, I think, the principal passages in the authorities,
the passages which state the doctrine most clearly. I find them
convincing. The doctrine is logical and consistent and supported
by adequate reasons of public policy, and it has remained unchal-
D lenged for more than a hundred years until it was challenged
in the present case.
There remains the question whether the relevant requirements
of public policy may have changed in the meantime. I think a
negative answer should be given. I have had the advantage of
reading in advance the speeches of my noble and learned friends
E and I agree with what they have said on the aspects of public
policy involved and I cannot usefully add anything.
There are two further questions. They do not arise for decision
in this appeal, but they are closely connected with the dominant
principle which, in my view, determines the result of this appeal
and they were considered in the judgments of Lawton J. and the
F Court of Appeal. I will say a few words about them.
Does the barrister's immunity extend to " pure paper work,"
that is to say, drafting and advisory work unconnected with
litigation? The authorities to which I have referred above do not
show it. Indeed, the judgment in Kennedy v. Broun233 emphatic
ally and repeatedly confined the proposition—the barrister's and
G client's mutual incapacity to contract—to matters of litigation.
There is a case Mostyn v. Mostyn23* where it was held that a
barrister was not entitled to claim for fees for work done by him
as conveyancing counsel in giving advice and settling conveyances.
It would follow, according to the doctrine as I understand it, that
232 234
[1896] 2 Ch. 487. 5 Ch.App. 457.
288 13 C.B.N.S. 677.
1 A.C. 1969. 11
H. L.(E.) he could not have been sued for negligence in doing such work. A
1967 But Giffard L.J. in giving judgment did not draw that conclusion,
R 0n d e i a n d did not go deeply into the question involved. While express-
m
Worsley & w a r m approval of the judgment in Kennedy v. Broun,235 he
made no mention of its emphatic and repeated limitation of the
proposition to matters of litigation. It seems to me that Mostyn
v. Mostyn236 is not a convincing authority, at any rate on the B
question of immunity, and it is at least doubtful whether barristers
have any immunity from liability for negligence in doing " pure
paper work " in the sense of which I have indicated.
Does a solicitor advocate have the same immunity as a bar
rister advocate from liability for negligence? Logically it seems
right that he should, because the same reasons of public policy C
seem equally applicable to both of them. There are, however,
some difficulties. The principle of a barrister's incapacity to con
tract is not readily (if at all) applicable to a solicitor. The existing
position, as usually understood, is that the solicitor by accepting
instructions makes with his client a contract, under which the
solicitor has a legal right to remuneration and legal obligations to D
carry out the instructions and to exercise due care and skill in
doing so. I am not aware of any decision or even dictum in a
judgment to the effect that there is an exception relating to the
solicitor's work as an advocate—that in respect of such work there
is no legal right or legal obligation. If public policy requires that
a solicitor must have immunity from legal liability in respect of his E
advocacy work, what is to be the contractual position? The
solicitor may accept composite instructions, both to do the ordinary
work of a solicitor (for instance, to interview witnesses and take
their proofs and arrange for their attendance at the trial) and to
conduct the case in court as an advocate. In such a case how
much of the arrangement between the solicitor and the client is F
contractual and how much is non-contractual? That is not an easy
question to answer. There are problems involved. They are not
necessarily insoluble. But I think they would be more
appropriately considered at length in a case where the question
of a solicitor's liability for advocacy work was raised for decision.
Appeal dismissed.
Solicitors: Michael Zander; Forsyte, Kerman & Phillips.

J. A. G.
235 236
13 C.B.N.S. 677. 5 Ch.App. 457.

(1969) 1 A.C. 191

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1 A.C.

AND PRIVY COUNCIL 191

"■ [HOUSE OF LORDS]

RONDEL APPELLANT H.L.(E.)»

H. L.(E.) ( a ) t h e administration of justice required that a barrister should ^

A P P E A L from the Court of Appeal.

H. L. (E.) therefore authorised to go onto the premises where the incidents \

Alleged immunity based on the absence of contractual

A Pippin v. Sheppard 21 and Everett v. Griffiths,22 per Scrutton L.J., H - L - <E-)

The nature of the profession

Alleged immunity from actions for negligence

H.L. (E.) curiosity, experiment and neglect; Anderdon v. Burrows" and A

H. L. (E.) Public policy as relevant to a barrister's immunity generally A

H. L. (E.) Grounds upon which public policy is said to rest A

A Solicitors'duty to take care H. L.(E)

H. L. (E.) convicted as a result of his counsel's negligence. In any event it is ^

A privilege on a class of professional men to the detriment of the H. L. (E.)

A circumstances. The decision in the Hedley Byrne case106 rests on a H L

H. L. (E.) anc j w e n t ^ c k j n th e authorities to the earliest times. It relies both A

A It is to be observed that under American law there can be H.L. (E.)

H. L. (E.) it i s incorrect to state as does the appellant that here is a new A

H. L. (E.) j j i e statement of principle propounded by Lord Loreburn L.C. A

A of a case and therefore it is pertinent to ask if he was dealing with H- L. (E.)

H. L. (E.) It was said that if there were no immunity convicted criminals A

A Rigby222; Mercer v. King223; Hawkins v. Harwood22i; Scudder v. H. L.(B.)

H.L.(E.) t 0 the respondent his account of the affair. T h e respondent then A.

HiL.(E.) It would, in my view, be incongruous if counsel were immune A

H. L.(E.) impending. But there are extensive fields of advisory work or \

A consequence than would seem apparent from a narrative of the H.L.(E.)

H. L. (E.) appellant delivered an undated statement of claim. The respondent A

On appeal to the judge in chambers the learned judge (Browne J.) B

action for damages for negligence, an action would lie against a Q

A Lord Kenyon in 1792, in Turner v. Philipps,™ mentioned the H!L-(E.)

H.L.(E.) possession of her estates At the trial of the case (Kennedy v. j^

A advocate in litigation to make a contract of hiring affects the H.L.(E.)

A In Purves v. Landell,44, Lord Campbell said that against the H.L.(E.)

H. L.(E.) and, as she asserted, also contrary to her express instructions, A

H. L. (EO apply to the advocate in litigation whether he be either a barrister A

A an attorney to take proceedings against their apprentices for mis- H.L.CE)

H.L.(E.) «jf a person holds himself out as possessing special skill A

A act done in the conduct of a cause, or in settling drafts, or in H.L.(E.)

H. L. (E.) answer to an allegation of negligence to say that the course that A

H.L.(E.) any fear 0 f having an action brought against him on account of A

^ In Watson v. M'Ewan7i it was held that the privilege which H.L.(E.)

H. L. (E.) warranted by the various considerations of the public interest to A

H. L.(E.) would have been acquitted. Another frequent symptom of such A

A In Ireland in Mullican V. M'Donagh*2 Pigott C.B., giving the H.L.(E.)

H. L.(E.) n o t t 0 n j s c ii e n t only, but also to the court, to the members A

«» 13 C.B.N.S. 677. »* 13 C.B.N.S. 677, 731.

A remuneration from, the plaintiff, the immunity no longer holds H.L.(E.)

H. L. (E.) guided by a sense of duty, that is to say, duty to his client, A.

A which is the great protection of counsel against an action H. L.(E.)

A in negligence to Lord Ashburton although the solicitor was not H.L.(E.)

A as the advocate for a person charged in that court with an H. L.CE.)

H. L. (E.) consideration. F o r the present independence of counsel is a care- A

A " N o action lies in respect of evidence given by witnesses H. L.(E.)

A unreasonable or undesirable, wants to have counsel's advice or H. L.(E.)

LORD UPJOHN. My Lords, if a barrister on his way to plead

A on the result (see Bayley J. in Morris v. Hunt154). This incapacity H - L -(E)

H. L.(E.) person who enters into a learned profession undertakes to bring A

A ment. It comes to this, that if counsel is incapable of contracting H.L.(E.)

A although acting as advocate, will be liable for negligence if he H.L.(E.)

H..L.(E.) of counsel in relation to litigation should start at that letter before A