Counsel—Negligence—Standard of care

Queen’s Bench Division, Technology and Construction Court, Judge Toulmin QC, 30 Jan 2009

A barrister should conduct himself in his professional work with the competence (care and skill) of a barrister of ordinary skill who would be competent to handle that type of and weight of work, and a breach of that duty occurs if the barrister commits an error which no reasonably competent member of the profession possessing those skills should have made.

Andrew Nicol (instructed by Barlow Lyde & Gilbert LLP) for the claimant. Guy Mansfield QC (instructed by Fishburns) for the defendant.

The claimant, a firm of solicitors, the firm was instructed to act for three claimants against a firm of architects (the underlying action). The defendant barrister was instructed to provide advice and represent the joint claimants at the trial of the underlying action; listed to commence in October 2005.

In September 2005, the question arose as to whether the trial should be adjourned on the basis that one of the joint claimants, C, was “not fit to conduct the action” by reason of mental illness. In addition to advice received from the Law Society, the firm was advised by the defendant that there was a real risk that C lacked capacity within the meaning of the Mental Health Act 1993 and the CPR.

Despite disagreement from C, the firm applied to adjourn the trial. The adjournment was not granted. Unless orders were made, with which C failed to comply, and the claim was therefore struck out. The joint claimants brought an action against the firm in negligence, arguing that the application for an adjournment could not have been issued by competent and skilful lawyers and was wholly untenable.

The firm settled the action and brought proceedings against the defendant for an indemnity or contribution to the settlement sum, contending that it had been bound to follow the advice of the defendant; that that advice had been negligent; and that no barrister in the defendant’s position could have considered that there was anything more than a remote risk that C was a patient, incapable by reason of mental illness from managing his property and affairs.

Judge Toulmin QC:
His lordship held that a comprehensive formulation of the standard to be applied in determining a barrister’s negligence was that the barrister had to conduct himself in his professional work with the competence (care and skill) of a barrister of ordinary skill who would be competent to handle that type of and weight of work, and a breach of that duty occurred when the error was one which no reasonably competent member of the profession possessing those skills should have made.

That formulation was consistent with the line of cases involving medical practitioners including Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643.

The conduct would be judged against that of a barrister of the same seniority. In Ridehalgh v Horsefield [1994] 3 All ER 848 the Court of Appeal added what it described as “an important qualification”. In relation to a wasted costs order in court proceedings, full allowance had to be made for “the fact that an advocate in court, like a commander in battle, often had to make decisions quickly and under pressure. In the fog of war...mistakes will often be made...it is only when, with all allowances made, an advocate’s conduct of court proceedings is plainly unjustifiable, that it can be appropriate to make a wasted costs order against him”.

Those observations were not confined to conduct in the courtroom but were general observations underlining the importance of considering a decision in the context in which it was made.

Instructing solicitor

His lordship turned to the role of the instructing solicitor. It was necessary to consider each case individually. For example, at one end of the spectrum, it was a proper use of the Bar for a solicitor without experience in a particular field to rely on counsel’s advice particularly on questions of law.

At the other end of the spectrum, the barrister might be instructed to draft pleadings or prepare schedules on the facts presented to him and should do so according to the solicitor’s instructions provided that he could comply with the rules of professional conduct. In between, the roles of the barrister and the solicitor would normally reflect the co-operative relationship between the barrister and solicitor in a particular case.

It was worth noting that frequently, by reason of the solicitor’s closer relationship with the client, the barrister would have to rely to a greater or lesser extent on the solicitor for the factual basis on which advice should be given. On the other hand, a solicitor would, subject to having regard to existing principles, be entitled to rely on the advice of counsel based on the facts as presented to him.

His lordship turned to the facts of the instant case and held that the defendant’s decision to place the issue of C’s capacity before the court could not be regarded as wrong or negligent.

Further, and in any event, once the solicitors had become concerned about C’s capacity, they themselves were under a duty—to assist in the administration of justice, and not to mislead the court—to raise the issue. In addition, the firm had an independent duty to consider and form their own judgment on the advice which the barrister had given (see Locke v Camberwell Health Authority [1990] NLJR 205).

Judgment would be given for the defendant.