Rondel v Worsley
| Jurisdiction | England & Wales |
| Judge | The Master Of The Rolls,Lord Justice Danckwerts,Lord Justice Salmon |
| Judgment Date | 20 October 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1020-2 |
| Date | 20 October 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J1020-2
The Master Of The Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Lawton
THE APPELLANT appeared in person.
MR G. SWANWICK, Q.C. and MR REGINALD BATT (Instructed by Messrs Forsyte, Kerman & Phillips) appeared as Counsel for the Respondent.
MR PATRICK O'CONNOR, Q.C. and MR L.I. STRANGER-JONES (instructed by the Official Solicitor) appeared as amicus curiae.
in stating the facts I have had recourse not only to the papers put before us by the parties but also to further papers which I have bespoken from the Court of Criminal Appeal.
During the night of Saturday to Sunday, 5th April, 1959, there was a dance at a house, 13 St. Stephen's Gardens, W.2. In the early hours, at 2.30 in the morning, a man named Manning was at the door. He was the doorkeeper. Norbert Fred Rondel went to the house. He went, he says, on behalf of Peter Rachman, the landlord. He spoke to Manning. There was an outburst of violence. Manning was severely injured. His hand was so damaged that it had to have nine stitches. And he lost the lobe of his right ear. Rondel admits that he did it, but he says that he was attacked by Manning. He was looking for prostitution and acted in self-defence. When it was suggested that he used a knife, he hotly denied it. He claims to be an expert in judo and karate. It would be degrading, he says, for him to use a knife. He told the Judge in chambers: "I tore his hand in half and bit part of his ear off". Even before this Court he exulted in his achievement. "It sounds difficult in cold blood", he said, "but I can demonstrate it". We did not accept the offer.
On Thursday, 28th May, 1959, Rondel was arraigned in the dock at the Old Bailey before the Recorder of London. He was charged with causing grievous bodily harm to Manning with intent so to do. He pleaded not guilty and was put in charge of the jury. At that stage he was not represented by counsel. The counsel for the prosecution opened the case and called the first witness, Manning. After Manning had given evidence–in–chief, the Recorder told Rondel he could cross–examine Manning. Rondel asked if he could have legal aid. The Recorder refused his re–quest, but told him that if he had £2. 4s.6d. he could have the services of any of the barristers then in the Court. What we call a "dock brief". Rondel did not have £2. 4s.6d. but someone in the gallery found the money. Rondel then picked upon abarrister of nearly four years standing, Mr Michael Worsley. In accordance with the tenets of the Bar, Mr Worsley accepted the task of defending Rondel. The Recorder adjourned the case so as to enable Mr Worsley to see Rondel and prepare his defence. Mr Worsley saw Rondel. He heard his account of how the harm was done to Manning and of the witnesses available. On the next day the trial was continued. Mr Worsley cross-examined the witnesses for the prosecution, including Manning himself, a doctor and a detective sergeant. Mr Worsley called Rondel to give evidence on his own behalf and also a witness, Miss Hogan. He addressed the jury on Rondel's behalf. The Recorder summed up. The jury found Rondel guilty of causing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to eighteen months imprisonment.
After his conviction Rondel applied to the Court of Criminal Appeal for leave to appeal. His grounds covered fifteen closely written pages. His main concern was to show that the injuries to Manning's hand were not caused by a knife but by his hands. But he also made complaints against Mr Worsley, saying: "My Court brief barrister actually got minor facts mixed up and his knowledge of some quite important facts was inadequate for cross-examination purposes. my idiotic counsel, all I wanted him for is to get me an adjournment to call witnesses and arrange for his (harming's) hand to be examined. I gave these instructions to him in writing. I felt somehow my counsel did not believe in my complete honesty and therefore did not examine that night doctor. I would have examined him for hours if necessary. It seemed my barrister had another client waiting, for he seemed in a terrible hurry. He did not even ask Sergeant McCann whether he saw a bottle (broken) at entrance to porch. I can prove I was working for Rachman by ordering inspection of the firm's books". If there was anything in these complaints – sufficient to suggest there might have been a miscarriage of justice – the Court of Criminal Appeal would no doubt have given leave to appeal. Butthey evidently thought there was nothing in them. They refused his application. So the conviction and sentence stood.
After serving his sentence, Rondel was released. He soon got into trouble again. In September 1960 he was sentenced to three years imprisonment for causing grievous bodily harm. After serving that sentence he got work as a club doorman. Whilst so employed, on 15th February 1965, nearly six years after the original trial, Rondel issued a writ against Mr Worsley claiming "damages for professional negligence". He acted in person and wrote out his own statement of claim. A few months later he was in trouble again. On 14th July, 1965, he was sentenced to eighteen months imprisonment for stealing. Whilst in prison he wrote out another statement of claim against Mr Worsley, which the Judge in chambers described as "well–nigh unintelligible". Eventually he was represented by a solicitor, Mr Zander, who prepared a draft statement of claim in proper shape. I will not read it in full. Summarised, it is a complaint that Mr Worsley was negligent–in the conduct of the case in three respects:–
First, he failed to cross–examine the witnesses for the prosecution so as to show that it was Impossible for the injury to have been caused by a knife.
Secondly, he failed to elicit from Miss Hogan, one of the witnesses for the defence, that Manning had several friends who could have assisted him in the fight.
Thirdly, he failed to elicit, or to call witnesses to prove, that Rondel was employed as rent collector and caretaker and was authorised to go on to the premises.
The draft statement of claim also alleged that, in consequence of this negligence, Rondel was wrongly convicted and sentenced to eighteen months imprisonment.
I desire to say at once that, if an action does lie against a barrister for negligence in the conduct of a case, the draft statement of claim does disclose a cause of action. The question is whether such an action does lie.
THE LAW AS IT STOOD BEFORE HEDLEY BYRNE
I will first consider the law as it was understood by the profession up till May of 1963 when the House of Lords decided the case of Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. 1964 A.C. 465. Beyond doubt the barrister was treated differently from other professional men. He could not sue for his fees. He could not even make a contract for them with his client. Nor with the solicitor who represented the client. The obligation to pay him was an obligation which was binding in honour, not in law. Such was the position of the advocate in the Roman law. Such was the position of the barrister in our English law. It was the tradition of centuries that what he received from the client was a gift or honorarium, and not a stipulated wage. To this day his very robe bears witness. At the back of it there is still the flap of the little pocket where the client could place his gratuity. In the pretence that the barrister did not know he was being given a reward! Over 200 years ago Sir William Blackstone compared our serjeants at law and barristers with the ancient Roman orators: "These indeed practised gratis, for honour merely, or at most for the sake of gaining influence: and so likewise it is established with us that a counsel may maintain no action for his fees; which are given not as locatio vel conduction, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation", see Blackstone's Commentaries, Vol.III, p. 28. This statement of Blackstone was challenged 100 years ago in the great case of Kennedy v. Broun (1863) 13 C.B., N.S., 677. Mr Kennedy was a "local" counsel practising in Birmingham. He was instructed by Mrs Patience Swinfen to recover for her a vast estate. He moved to London and took chambers in the Temple for the purpose. She promised him £20,000 if he won the estate for her. After years of endeavour he succeeded. She got the estate, which was valued at £60,000. And then she refused to pay him. He cited all the authorities on the subject, both from theRoman law and from our English law. Yet he failed. He did not recover a penny for all the work he had done. The Court of Common Pleas, consisting of Chief Justice Erle, Mr Justice Williams, Mr Justice Byles and Mr Justice Keating held that "the relation of counsel and client in litigation creates an incapacity for hiring and service as an advocate". That case was regarded as decisive. It was ever after accepted that a barrister could not sue for his fees. The reason given was because he was incapable of making a contract for them.
This incapacity was considered by the lawyers of that time as carrying with it an important consequence. The coin had its obverse. They turned it over to see what was on the other side. On the one there was the obligation of the barrister to render services. On the other there was the obligation of the client to pay his fee. Just as the one obligation was binding in honour, but not in law, so was the other. Just as the reason of the one was rooted in an incapacity to contract, so was the other. Both were thought to stand or fall together. So we find that, just as the Judges rejected...
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