NOTES OF CASES
| Author | H. W. Wilkinson |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01147.x |
| Date | 01 March 1967 |
| Published date | 01 March 1967 |
NOTES
OF
CASES
PUBLIC POLICY
AND
THE
IMMUNITY
OF
BABRISTERS
THE decision in
Rondel
v.
W.I
in the Court of Appeal has aroused
widespread interest and a great deal of generally adverse comment.2
There was disagreement amongst the members of the Court of
Appeal as to how far the barrister’s immunity from suit for negli-
gence extends but there was agreement that
on
grounds of public
policy a barrister cannot be sued for negligence in the conduct of
a civil
or
criminal case
in
court
or
in the work preparatory to the
case, such as in drawing pleadings.3 He has never been liable in
contract.
Our legal system gives the judges a discretion to use a vague
yet powerful concept which can override all considerations of indi-
vidual and private rights in the interest of the community-the
doctrine of public policy. Lord Radcliffe has said that the doctrine
of public policy
“
must express those inner convictions that sustain
the (legal) system itself. A principle which, however reluctantly,
compels the judge to deny the ordinary legal sanction to familiar
categories of transactions
known
to the law-contract and property
transfer
or
transmission, for instance-must be regarded as bursting,
as
it
were, out of the inner certainties
or
convictions of the law.”
Having vested such a power
in
the judges the public has two safe-
guards against their using
it
capriciously, first their concern for
the public good and second the authority of Parliament.
It
cannot
be doubted that the decision in
Rondel
v.
W.
was arrived at by
the court solely from a wish to preserve the highest standards in
the administration of justice although
it
can be questioned whether
public policy demands that the immunity should exist.
The court gave many reasons to justify the policy decision
and they can all be attacked.
For
example,
it
does not follow that
the court could not now decide that
a
barrister has
no
immunity
merely because
“
for centuries situations must have arisen
frequently which would call in question the position in law as to
barristers, and that position has not been called in question.”
Nor
does it follow that if a barrister were liable for negligence he
1
[1966]
3
All
E.R.
657;
[1966] 3 W.L.R. 950; reported at first instance at
[1966]
1
All
E.R.
467.
2
Leave to appeal was granted by the House of Lords after being refused by
the Court of Appeal
(The Times,
December
2,
1966).
3
Lord Denning at p.
667,
D:nckwerts
L.J.
at p.
672,
Salmon
L.J.
at
p.
679.
4
Rosenthal Lectules
1960,
5
For example, Salmon
L.J.
at p.
675--“
I
would stress that the purpose of
immunitv
is
not to confer a benefit
on
the Bench
or
Bar, jurors
or
witnesses,
The Law and its Compass,” pp.
37,
38.
butto Gotect the public interest.”
change
in
the law.
6
Danckwerts
L.J.
at p.
671.
The same objection could prevent any important
194
MAR.
1967
NOTES
OF
CASES
195
would
“
prolong the trial inordinately; in case the client should be
aggrieved and turn round
on
him and sue him for negligence.”
Solicitors are liable for negligence and they
do
not noticeably
behave in this way. Although the door is open
‘‘
to every dis-
gruntled client
”
8
to sue solicitors in negligence very few pass
through
it,
the cost of legal proceedings and the efficient screening
of Legal Aid Committees sees to that. The powerful point of
Mr.
Zander, Rondel’s solicitor, that
if
a barrister puts first his duty to
the court he has nothing to fear is not, it is suggested, answered by
saying,
‘‘
It
is a fearsome thing for a barrister to have an action
brought against him. To have his reputation besmirched by a
charge of negligence.”
So
it
is for everyone but that is not
a
reason for granting immunity.
Nor
does the
‘(
inconvenience
”
caused
‘‘
if every disappointed litigant
or
criminal could have his
case reopened,’’
lo
appear a convincing reason for the immunity.
Every other person claiming to exercise professional skill runs the
risk of being inconvenienced by being sued for negligence and the
public interest that there should be an end to litigation is not
allowed to protect such persons. Anot.her argument, that a
barrister cannot pick and choose his clients but a solicitor can is
surely not significant.ll Does a solicitor choose a client whom he
assesses will not sue him
or
pester him with an action if he is
negligent
or
appears to be negligent
on
his behalf? One has yet
to
meet the solicitor
of
such prescience.
Danckwerts
L.J.
however put the public policy question
on
an
additional ground. He adopted the argument of the defendant’s
counsel and said that
it
is the totality of the reasons which convinces
and not the examination of each reason one by one.12
If
this is
valid then
it
means that arguments which alone may be unconvinc-
ing could together be authoritative and
it
puts the matter beyond
discussion unless the House of Lords
or
Parliament feel that the
public interest has been misread.
Is
it
not truer to say that
in
a
public policy decision the courts are guided by a general feeling not
wholly
or
necessarily based
on
reason and that the community feels
it right that this should be
so?
Lord Radcliffe in his Rosenthal
Lectures stressed the overriding nature
of
the doctrine when he said
that the principle
“
invites
no
evidence, indeed
it
admits of none.
The judge is
not
to be informed by others
.
. .
as to when he is to
intervene
or
when to sit silent.”
What are the limits of the decision as it now stands
?
Lord Denning said that not only does the immunity apply to
court work and the preparation of pleadings and advice
on
evidence,
7
Lord
Denning at p.
666.
8
Ibid.
at p.
666.
9
Ibid.
at
p.
666.
10
Salmon
L.J.
at
p.
675.
11
Ibid.
at pp.
675,
676,
Danckwerts
L.J.
at
p.
672.
12
p.
671.
13
’‘
The Law and
its
Compass,” p.
38.
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