Public Policy and the Immunity of Advocates
| Date | 01 May 1968 |
| Published date | 01 May 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01192.x |
| Author | H. W. Wilkinson |
MAY
1968
NOTES
OF
CASES
829
of
its
servants makes a false
or
misleading statement in the course
of his employment, even though he has
no
reason to doubt
its
accuracy, if some other servant, who is responsible for the matters
concerned in the statement, has negligently failed to inform the
maker about those matters.
This decision is a striking illustration of the blurring of the
distinction between liability in contract and tort, with a consequent
readjustment of the business risks involved in ordinary commercial
transactions, that is implicit in
Ziedley Byrne.
In
effect, the
defendants found themselves giving a guarantee, admittedly limited
rather than absolute, of their principal's credit but with no corre-
sponding incrcase in their remuneration for taking
on
this additional
obligation. The plaintiffs obtained the benefit of an effective
insurance of their trade profits, for they recovered the full contract
price of the goods sold to Taylor~,~' without the necessity of paying
a
premium. Such consequences will not
go
unremarked in the
world of commerce and it will be interesting to see how the new
morality of accountability for economic negligence survives in the
hard-headed world of competitive trade. MICHAEL
DEAN.
PUBLIC
POLICY
AND
TEE
IMMUNITY
OF
ADVOCATES
IN
the course of its passage from Master Lawrence, who ordered
that the plaintiff's statement of claim be struck out, to the House
of
Lords,
nine judgments have been delivered
in
the case of
Rondel
v.
Worsley.'
Every judge has held that on the ground
of
public
policy a barrister is immune from an action for negligence at the
suit of his client for his conduct of a case in court, and most said
that the immunity covers the preliminary work on the conduct and
management of a case such as the drawing of pleadings. The judg-
ments of the House of Lords are much fuller, better reasoned and
more persuasive than those of the Court of Appeal but some
commentators have remained unconvinced.
The Times
and the
Solicitors' Journal
condemned the decision, the
New Law Journal
was generally critical.5 On the other hand the Chairman
of
the
Bar Council said that the Bar would regard the decision as satis-
factory and the
Law Society Gazette
said, with a certain self-
interest in view of the new divorce hearings in the county court,'
27
It is doubtful whether
loss
of
expected profits, aa oppoeed
to
108s
of
existing
assets, may be recovered in
deceit,
as
such
damages are more characteristic
of
contract than tort. Mayne and McGregor,
Damages,
12th
ed.,
5
955
et
scq.
Cl.
Street.
Tort,
3rd
ed.,
at
p.
387.
Cairns
J.
awarded thc plaintitr wholesalers
the price at which they sold, thereby including their
profit,
rather than the
cost
to
themselves, without argument.
I
[1967] 3
W.L.R.
1666; [1967] 3
All
E.R.
993. [1966] 3
All
E.R.
657.
3
Novernher
23, 1967,
p.
11,
"
An Impolitic Immunity."
Vol.
111,
No.
48.
p.
917,
''
as a matter
of
principle and practice the immt~nity
cannot be justified."
Vol.
117,
p.
1255.
6
The
Times,
November
23, 1967,
p.
1.
'I
No
moaning at the Bar," commented
the
.?'em
Law Journal,
ibid.
p.
1255.
Matrimonial Causes
Act
1967,
88.
1, 2.
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