Home > Breach of Expert Duties, Case Law Studies, Credibility of Expert Witness, Expert Evidence, Expert Witness, Limitations to The Immunity Rule > Law practitioners — Rights and privileges of law practitioners — Barrister immune from an action for negligence in the conduct of a case and pretrial matters intimately related thereto — Law Practitioners Act 1955, s 13(2). Negligence — Arising out of special relations — Barrister conducting a case not liable: Rees v Sinclair (New Zealand)

Law practitioners — Rights and privileges of law practitioners — Barrister immune from an action for negligence in the conduct of a case and pretrial matters intimately related thereto — Law Practitioners Act 1955, s 13(2). Negligence — Arising out of special relations — Barrister conducting a case not liable: Rees v Sinclair (New Zealand)

Copyright 1973 New Zealand Council of Law Reporting
New Zealand Law Reports
Rees v Sinclair
Court of Appeal, Wellington
[1974] 1 NZLR 180; 1973 NZLR LEXIS 722
20, 21 August, 3 October 1973
DECIDED-DATE: 3 October 1973

CATCHWORDS:
[*1]

Law practitioners — Rights and privileges of law practitioners — Barrister immune from an action for negligence in the conduct of a case and pretrial matters intimately related thereto — Law Practitioners Act 1955, s 13(2).

Negligence — Arising out of special relations — Barrister conducting a case not liable.

HEADNOTES:
This was an appeal from the judgment of Mahon J reported [1973] 1 NZLR 236 dismissing an action for professional negligence brought by the appellant against the respondent. The appeal was dismissed and is reported only on the validity of a claim against a lawyer for damages for negligence in the conduct of litigation on the part of the lawyer.

Held, 1 The administration of justice requires that a barrister should be immune from an action for negligence so that he may perform his tasks fearlessly and independently in the interests of his client, but subject to his overriding duty to the Court, which may conflict with the interest of his client (see p 182, line 17; p 189, line 40).

Rondel v Worsley [1969] 1 AC 191, 227-228; [1967] 3 All ER 993, 998-999, applied.

2 Actions for negligence against barristers would make the re-trial of the original [*2] action inevitable and so prolong litigation contrary to the public interest (see p 183, line 19; p 189, line 44).

Rondel v Worsley [1969] 1 AC 191, 249-250, 251; [1967] 3 All ER 993, 1012, 1013, applied.

3 By McCarthy P. Public policy necessitates that in litigation a barrister should be immune because he is bound to undertake litigation on behalf of any client who pays his fee (see p 184, line 33).

Rondel v Worsley [1969] 1 AC 191, 281; [1967] 3 All ER 993, 1033, applied.

4 By McCarthy P. Unless a barrister was immune he could not be expected to prune his case of irrelevancies and cases would be prolonged contrary to the public interest (see p 185, line 9).

Rondel v Worsley [1969] 1 AC 191, 273; [1967] 3 All ER 99o, 1028, applied.

5 By McCarthy P. The fact that a barrister simpliciter cannot sue for his fees is not the justification for his immunity; it exists not for his benefit but in the interests of the State (see p 186, line 9).

Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993, applied.

6 In New Zealand the immunity extends to pre-trial work in so far as the particular [*3] work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way the cause is to be conducted at the hearing (see p 187, line 17; p 190, line 16).

Judgment of Mahon J affirmed.

NOTES:
Refer 9 Abridgement 249; 11 Abridgement 404.

The question was left open as to whether a solicitor-barrister should be entitled to sue for his fees as held in Robinson and Morgan-Coakle v Behan (supra), having regard to the later decision in Rondel v worsley (supra) as to the basis for the existence of a barrister’s immunity (see p 187, line 26; p 190, line 31).

The question of whether the immunity should extend to solicitors appearing in Court or performing duties incidental to such appearances was also left open (see p 186, line 47; p 190, line 26).

CASES-REF-TO:
Other cases mentioned in judgments
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575.
Le Strange v Pettefar (1939) 161 LT 300.
O’Donoghue v Downer and Co Ltd [1953] NZLR 758.
Robinson and Morgan-Coakle v Behan [1964] NZLR 650.
Singer (Re) [1929] NZLR 301; [1929] GLR 234.
Watts and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA).

INTRODUCTION:
Appeal
This was an [*4] appeal from the judgment of Mahon J [1973] 1 NZLR 236.

COUNSEL:
A L Hassall for the appellant.

R K Davison QC and R W Worth for the respondent.

JUDGMENT-READ: Cur adv vult

JUDGES: McCarthy P, Macarthur and Beattie JJ

JUDGMENT BY: McCARTHY P.

MACARTHUR J.

BEATTIE J.

JUDGMENTS: McCARTHY P. This is an appeal against a judgment of Mahon J in which he dismissed an action brought by the appellant, a retired barrister and solicitor of Auckland, aged 79, against a practising barrister and solicitor, Mr J B Sinclair, for damages for negligence by Mr Sincair while acting for the appellant, Mr Hawea Rees.

[After disposing of the appeal his Honour continued:] As the matter of the immunity of barristers from actions for negligence was argued at considerable length, it is fitting, I think, to say something about that, notwithstanding that what I say may appear unnecessary. The House of Lords took the same course in Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993, where after making it plain that they thought that the appeal before them was entirely without merit and must fail on the facts, proceeded to deal with the law at length and in detail.

When Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 [*5] was decided by the House of Lords, much speculation developed whether the immunity of barristers from suits for negligence would survive. There were many who thought that it should not, for, so they said, it confers an unwarranted protection on lawyers which other professional men who, too, have obligations to society do not enjoy. The House was alive to this thinking, and so saw the vital question as being whether in this day and age this protection should be maintained, or abandoned, in the public interest. It held unanimously that it should be maintained. In each of the opinions delivered by the five members of the House, the different consideration urged for and against this conclusion are discussed and weighed. All of these may not have the same importance in the New Zealand scene, but those to {182} which the House seem to me to have given the greatest weight do apply here. I shall say what they are presently, and to what extent they apply; but first I must emphasise that the House was concerned with the immunity of a member of the English Bar, a barrister practising his profession in a country where the professions of barrister and solcitor are completely separate.  [*6] That situation is very different from the situation in this country where most practitioners are both barristers and solicitors.

Another aspect of Rondel v Worsley, which I should emphasise, is that the House was concerned with public policy in England and Scotland. Lord Reid stresses this and said that he did not know enough about conditions in any other country to express any opinion as to what public policy might there require (ibid, 227; 998). Now we, of course, are concerned with the requirements of public policy in New Zealand, and it does not necessarily follow that the requirements are the same here as in the United Kingdom.

The first consideration stressed by the House in Rondel v Worsley in favour of the immunity is that the administration of justice requires that a barrister should be able to perform his tasks fearlessly and independently in the interests of his client but at the same time discharge the duty which he owes to the court and the administration of justice generally, which is a higher duty than that which he owes to his client. The two can conflict. To extend this point, I would take a citation from the opinion of Lord Reid, pointing out first in relation [*7] to this and to the other citations which I will make in relation to other considerations which the House relied on, that a like viewpoint appears in the opinions of all the Members. The citations are unavoidably rather long. Lord Reid said:

“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 profession, 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 not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would [*8] or might seek legal redress if that were open to him.

Is it in the public interest that barristers and advocates should be protected against such actions? Like so many questions which raise the public interest, a decision one way will cause hardships to individuals while a decision the other way will involve disadvantage to the public interest. On the one hand, if the existing rule of immunity continues there will be cases, rare though they may be, where a client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So the issue appears to me to 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 {183} by the possibility of an action being raised against him to such an extent that he would knowingly depart from his duty to the court or to his profession. But although the line between proper and improper conduct may be easy to state in general terms, it is by no means easy to draw in many borderline cases. At present it can be said with confidence in this country that where there is any doubt [*9] 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 much to promote the smooth and speedy conduct of the administration 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” ([1969] 1 AC 191, 227-228).

This consideration and the words of Lord Reid seem to me to apply just as much in New Zealand as in England.

The second consideration discussed by the House and which, like the first, I believe applies equally in this country, is that actions for negligence against barristers would make the retrial of the original action inevitable and so prolong litigation contrary to the public interest. Here, to explain the point, I take a citation from Lord Morris of Borth-y-Gest:

“It will be useful to consider some of the circumstances that would arise if such actions were permitted. If someone has [*10] been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been 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 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 conviction by a majority verdict of ten to two, could one of the ten 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 [*11] that the additional questions had been put, there probably would have been an 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 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 {184} 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 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 [*12] imposed might have been served (as in the present case) long before. If in the civil action the suggestion was made that, had there been further evidence called or further questions put in the criminal case, there might have been a disagreement rather than a conviction, this only serves to demonstrate how difficult in would be for a court to decide on a balance of probabilities what the jury in the criminal case would have done had there been different material before them. A trial upon a trial would raise speculation upon speculation” ([1969] 1 AC 191, 249-250).

And again:

“Many of these considerations have parallel validity in regard to complaints of lack of care and skill in a civil action. It is true that courts must not avoid reaching decisions merely because there are difficulties involved in reaching them. It may not be impossible in certain circumstances for one civil court to decide that an 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,  [*13] be undesirable in the interests of the 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 appals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation” ([1969] 1 AC 191, 251).

The third consideration, another which has application in New Zealand to a practitioner whose services are sought purely as counsel, relates to the obligation of a barrister to accept any client, however difficult. I turn to Lord Upjohn:

“Therefore, the immunity of the barrister, if it exists at all, must depend on some other ground than his status, his inability to sue or his incapability to contract. I think that public policy necessitates 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 professional practice and that he is properly instructed or, to put it more bluntly, properly  [*14] paid according to his standing at the Bar. Whatever may be the powers of counsel to compromise civil litigation 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 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:

{185} ‘From the moment when any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the courts where he daily sits to practice, 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” ([1969] 1 AC 191, 281; [1967] 3 All ER 993, 1033).

The fourth and final consideration which I propose to extract is closely related to the second, and is most clearly expounded in the opinion of Lord Pearce:

“It is  [*15] 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 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 proportion to the work they do is much fewer than in other countries, this is undoubtedly due in great measure to the fact that  [*16] 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 questions 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” ([1969] 1 AC 191, 273; [1967] 3 All ER 993, 1028).

The force of this observation in a climate of escalating case loads in courts of first instance and at appellate levels in this country, as elsewhere, is obvious. It is very much in the public interest that justice be administered with reasonable despatch. As Lord Reid observes, it is the opinion of most men of experience in handling litigation that the lengthening of trials does not lead to closer approximation to ideal justice (ibid, 229; 999).

In New Zealand it has been generally considered that insofar as the work of a barrister in relation to Court proceedings is concerned, the same immunity applies, but there is [*17] no satisfactory decision of a superior Court in this country which says so. Watt and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA) seems to have been treated, when it reached this Court, as a claim for negligence as a solicitor. But it has been held that where a practitioner is both a barrister and solicitor, he can sue for his fees. The early history of the {186} proposition and the cases concerning it in New Zealand and overseas are discussed in a most careful judgment of Perry J in Robinson and Morgan-Coakle v Behan [1964] NZLR 650. I shall have something more to say about this later, but at this point I assume that he can sue. It has therefore sometimes been contended that as the immunity of an English barrister had often been stated to be founded on the fact that he has no contractual relationship with his client and cannot sue for his fees, there could be no reason why a New Zealand barrister and solicitor, if he is entitled to sue for his fees, should receive this same protection. But the House of Lords has said quite decisively in Rondel v Worsley that the fact that the English barrister cannot sue is not the justification for the immunity: it exists not for [*18] his benefit but in the interests of the State.

The legal profession in New Zealand is often described as a “fused” profession, because a practitioner may practice both as a barrister and a solicitor. Indeed most practitioners do, though there are some who practice solely as a barrister, including, of course, Queen’s Counsel, and there are some who practice solely as solicitors. But the use of the term “fused” may possibly lead to misconceptions as Perry J observed in Robinson and Morgan-Coakle v Behan. There are separate rolls for the two professions. There is a roll for barristers and another for solicitors (ss 3 and 4 of the Law Practitioners Act 1955). The necessary qualifications for the two professions are stated separately and are somewhat different (ss 6 and 7). There are other provisions in the Act which relate to barristers only, and others to solicitors only. Included in the former is s 13 which says:

“Barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.”

Now the immunity from suits for negligence which barristers possess in England could be argued to be a privilege. “A privilege describes some [*19] advantage to an individual or group of individuals, a right enjoyed by a few as opposed to a right enjoyed by all”: Le Strange v Pettefar (1939) 161 LT 300, 301, per Luxmoore LJ. So it may be that by virtue of this provision alone, a barrister in New Zealand is entitled to this same immunity, at least one who is practising as a barrister only. But I do not wish to dispose of the issue in this way. I prefer to consider the question solely in the light of the public interest. Doing that I come to the conclusion that the considerations which I have mentioned and which, as I have said, seem to me to have persuaded the House of Lords, are sufficiently powerful in New Zealand to call for the same result in this country.

But I have been speaking of barristers simpliciter. What of the practitioner who practises both as a barrister and solicitor? Should a different result be arrived at in that case? I think not. The considerations which I have mentioned seem to apply with equal force to such a practitioner. The protection, I repeat, is not conferred for the benefit of the individual, but in the interests of the administration of justice. It may be argued [*20] that on this reasoning the protection should also be extended to solicitors, when they are appearing in Court or performing duties incidental to such appearances. Some of the members of the House in Rondel v Worsley thought that that result followed. Perhaps that is also the situation in New Zealand, but the point is not before us, and has not been argued. So I do not decide it.

In Rondel v Worsley the House held that the immunity covered not {187} merely the conduct and management of a cause in Court, but also preliminary work in connection therewith, such as the drawing of pleadings. More than one member of the House commented on the difficulty of drawing the line of demarcation in certain classes of barristerial work. Mr Hassall has contended that the difficulty is even greater in New Zealand, where the delineations between the work of a barrister on the one hand and a solicitor on the other are less clearly marked than they are in England. Therefore, he says, we should restrict the coverage to the actual Court appearance. I agree that the boundaries are less certain in New Zealand, and that it is most difficult to draw in advance any statement of them which will satisfactorily [*21] dispose of all debatable areas, but that should not deter us from declaring the principle. I agree, too, that, having regard to the capacity of practitioners in New Zealand to be both barristers and solicitors, we should not be controlled by the divisional lines adopted in England. But I cannot narrow the protection to what is done in Court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated.

I return now to the matter of the right of a barrister-solicitor to sue for fees, a right upheld in Robinson and Morgan-Coakle v Behan (supra.) That case was decided before the immunity of barristers was said [*22] by the House of Lords to be justifiable only on the ground of public interest and not on those which had often been advanced in the past, and when it was doubtful whether the immunity enjoyed by the English barrister applies in New Zealand. Now it may possibly be that the same requirement of public interest could be relevant to the barrister-solicitor’s right to sue. So I would like to ensure that the question is kept open for consideration when it arises.

Now applying what I have said to this particular case, it seems to me that the vital matter amongst the different matters complained of by the appellant was Mr Sinclair’s decision not to raise on the application for permanent maintenance the conduct of Mrs Frances Rees prior to the separation agreement. Once a decision was made not to bring that material into the contest, the other matters referred to in the complaints seem to me to be purely incidental and unimportant. In my view Mr Sinclair’s advice on this central feature was intimately connected with the manner in which the case was to be conducted at the hearing; it governed the tactics to be adopted in court. Unquestionably it would be covered by the English immunity,  [*23] and I think it should be covered in New Zealand. So, even if I thought that there was negligence on the part of Mr Sinclair in giving this advice and making all consequential decisions, which I do not, I would be prepared to hold that the appellant could not succeed at law.

I would dismiss the appeal.

MACARTHUR J. I have had the advantage of reading in advance the judgment of McCarthy P. I am entirely in agreement with him that {188} the appeal fails on the facts. The findings of Mahon J are perfectly clear, and I am quite unable to accept Mr Hassall’s argument that this Court should take a different view. On Mahon J’s findings there was no negligence on the part of Mr Sinclair, in respect of any of the five grounds put forward by Mr Hassall. Consequently the appeal must fail.

I think that I should add a few words, however, on the question of the liability for professional negligence on the part of barristers in New Zealand. Mr Davison commented that this question has not been decided in any previous case. It is true that in Watt and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA), Edwards J, the Judge at first instance, appears to have considered that a barrister in [*24] New Zealand could be successfully sued for negligence in relation to litigation conducted by him, either before or at the trial. The plaintiffs in the case were a firm of solicitors who had acted for the defendant in a suit for specific performance of a contract for the sale of a lease. They sued for their costs. The defendant counterclaimed damages for negligence: the suit for specific performance had failed because the lease in question was in fact an under-lease. The plaintiff Mr Cohen, who was also a barrister and who was in charge of the common law department of the firm, had conducted the litigation. It was held that he was negligent in not making sure that the defendant had a good title which the purchaser could be compelled to take. The Court of Appeal (Stout CJ and Williams and Chapman JJ) affirmed the judgment of Edwards J which was in favour of the defendant. The case appears to have been decided, however, on the basis that Mr Cohen’s negligence was negligence as a solicitor, that is, in failing to search the title. It is clear that this view was taken by Stout CJ and Williams J, although Chapman J does appear to have regarded the matter as negligence on the part [*25] of counsel. But clearly the negligence was not related to the actual conduct of the litigation in Court. I agree with Mahon J’s conclusion that Watt and Cohen v Willis cannot be relied upon by the appellant in the present case as supporting his claim for damages against the respondent for alleged negligence as counsel in the conduct of the proceedings.

In his very careful judgment in Robinson and Morgan-Coakle v Behan [1964] NZLR 650 Perry J records the history of the legislation relating to the practice of the profession of the law in New Zealand. He shows that ever since 1861 the legislation has provided for separate rolls of barristers and solicitors, and that the statutes have permitted practitioners with the exception of Queen’s Counsel to practise both as barristers and solicitors. The statute now in force is the Law Practitioners Act 1955 and s 13 of that Act contains a provision similar to that which appears in the 1861 Act, viz:

“Barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.”

I agree with Mahon J’s statement in his judgment now under consideration that there is probably only one material difference [*26] between the status of barristers in New Zealand and the status of barristers in the United Kingdom. This difference is that in New Zealand a person on the roll of barristers may also be on the roll of solicitors, a situation not permitted in England. Section 15 of the Law Practitioners Act 1955 provides that no barrister of the rank of Queen’s Counsel shall practise as a solicitor, and that no practising certificate as a solicitor shall be issued to him; but a Queen’s Counsel may still remain on the roll of solicitors. A practitioner practising alone takes out a practising certificate {189} as a barrister only. A Queen’s Counsel and a practitioner practising solely as a barrister must be instructed by a solicitor: there is a rule of professional etiquette that they are precluded from receiving instructions from a lay client direct. Practitioners who practice both as barristers and as solicitors, however, are entitled to be instructed direct by a lay client even in respect of work which is exclusively barrister’s work. The expression “fused profession”, as Perry J pointed out in the judgment mentioned above, is a loose expression which does not describe accurately the system [*27] of practice in New Zealand. True fusion would mean the coalition of the two branches into one profession.

In Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 the House of Lords held that a barrister in England was immune from 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. Their Lordships held that that immunity was not based on the absence of contract between barrister and client, but on public policy and long usage. I am not going to burden this judgment with a repetition of any part of the speeches in the House of Lords. It is sufficient to say, in summary, that the three grounds of public policy relied on by their Lordships were (a) that the administration of justice required that a barrister should be able to carry out not only his duty to his client, but also his overriding duty to the Court fearlessly and independently; (b) that actions for negligence against barristers would make the retrying of the original causes inevitable and so prolong litigation, contrary to the public interest; and (c) that a barrister was obliged to accept [*28] any client, however difficult, who sought his services. It should be noted that the majority of their Lordships were of the view that on the grounds of public interest a solicitor while acting as an advocate has the same immunity from an action for negligence as a barrister does. There was some difference of opinion, however, on the question whether the immunity for a barrister extends to chamber work. Three of their Lordships (Lord Reid, Lord Morris of Borth-y-Gest and Lord Upjohn) were of the view that 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.

The decision in Rondel v Worsley is not directly applicable in New Zealand but of course it is strongly persuasive. In my opinion the first two grounds of public policy relied upon by their Lordships in that case are equally applicable to New Zealand conditions. I refer to (i) the duty which the barrister owes to his client and to the Court, which must be carried  [*29] out fearlessly and independently, and (ii) actions for negligence against barristers would make the retrying of the original action inevitable, and so prolong litigation. These matters are undoubtedly of great importance in the administration of justice in New Zealand, as in England. The question that has to be decided is — having regard to the different conditions of practice operating in New Zealand should Rondel v Worsley be applied here, and if so, to what extent? I have no doubt that a measure of immunity should, on the reasoning in that case, apply to a barrister who practises solely as a barrister. Moreover I can see no reason why a similar measure of immunity should not also apply to a barrister and solicitor in so far as he is acting qua {190} barrister. Logically there is no difference between the positions of those two types of practitioner, as far as the question of immunity is concerned. Moreover I think that, as the basis of immunity in this connection is the public interest, the immunity should apply equally to contractual situations as to duty situations actionable in negligence. But what is the measure of the immunity that the public interest requires in  [*30] New Zealand? Clearly it should cover the barrister’s conduct and management of a cause in Court. In Rondel v Worsley their Lordships went further: they held that the immunity also covered the preliminary work connected with the cause, such as the drawing of pleadings. In practice in New Zealand, however, I do not think there is a clear line of demarcation between solicitor’s work and counsel’s work: the one tends to merge into the other. In practice, pleadings are not always drawn by counsel. The instructing solicitor (who almost invariably holds a barrister’s practising certificate as well) not infrequently carries out this work. I think that the only practical test is to confine the immunity to the true work of an advocate; and here I am content to adopt the definition propounded by McCarthy P, that is, that the protection covers the barrister’s conduct and management of a cause in Court and other work so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way in which the cause is to be conducted when it comes to a hearing. I agree with McCarthy P that those are the limits within which the barrister [*31] in New Zealand should be held immune from an action for negligence at the suit of a client.

There appears to be good reason for applying the same rule of immunity in respect of solicitor-advocates. This was the view of the majority of their Lordships in Rondel v Worsley, although it was of course obiter. The point does not arise in the present case and I therefore do not express a decided opinion on it.

I would leave open the question whether reconsideration may possibly have to be given to the decisions relating the the recovery of barristers’ fees, for example, Re Singer [1929] NZLR 301; [1929] GLR 234, O’Donoghue v Downer and Co Ltd [1953] NZLR 758, and Robinson and Morgan-Coakle v Behan (supra). There are those who would question the rightness of a legal situation in which a barrister may sue for his fees and yet be immune from a claim for professional negligence. The point does not arise for decision, however, in the present case.

In the present case the respondent was consulted as a barrister and solicitor; and I agree with Mahon J that there was a contract of retainer embracing all aspects of the work which the respondent was instructed to perform. The work comprised both [*32] solicitor’s work and counsel’s work. As regards the counsel’s work, the respondent is immune from suit for professional negligence in so far as his conduct comes within the definition set out above; but as regards the solicitor’s work he would be liable for professional negligence in connection with that work. Applying the foregoing definition of immunity to the relevant allegations in the present case it is clear that these allegation of negligence all come within the immunity. They are all directly concerned with Mr Sinclair’s conduct and management of the cause in Court. Hence in law the appellant cannot succeed in any claim based on negligence as regards those allegations. In respect of the remaining allegations the appellant has failed to establish any negligence.

{191} I am for dismissing the appeal.

BEATTIE J. I also agree that this appal should be dismissed.

ORDER:
Appeal dismissed.

SOLICITORS:
Solicitors for the appellant: Hassall, O’Neill, Allen & Parker (Hamilton).

Solicitors for the respondent: Butler, White & Hanna (Auckland). #020509M001USPENK#

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