Rondel v Worsley

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Upjohn,Lord Pearson
Judgment Date22 November 1967
Judgment citation (vLex)[1967] UKHL J1122-1

[1967] UKHL J1122-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Pearce

Lord Upjohn

Lord Pearson

Rondel
and
Worsley

Upon Report from the Appellate Committee, to whom was referred the Cause Rondel against Worsley, that the Committee had heard Counsel, as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th, days of June last, as on Monday the 3d, Tuesday the 4th and Wednesday the 5th, days of July last, upon the Petition and Appeal of Norbert Fred Rondel, of 62 Cromwell Road, West Kensington, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal, of the 20th of October 1966, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Michael Dominic Lawrence Worsley, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 20th day of October 1966, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,

1

In 1959 the Appellant was charged at the Central Criminal Court with causing grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for some time he was informed that he could have a "dock brief". He chose the Respondent to be his counsel and, in accordance with his duty as a barrister, the Respondent agreed to act for him. During an adjournment he gave to the Respondent his account of the affair. The Respondent then cross-examined the Crown witnesses and called the Appellant and another witness. The Appellant was convicted and it is plain that he had no real defence. But he was much aggrieved by evidence that he had used a knife; he wanted to establish that he had inflicted Manning's injuries with his hands alone, or by biting, and apparently the Respondent did not ask all the questions or lead all the evidence he had suggested.

2

In February 1965 the Appellant raised the present action. His original statement of claim, apparently prepared by himself, was barely intelligible. In April the Respondent sought an order that the statement of claim be struck out as disclosing no cause of action and also as being irregular. In May the Master ordered that the Statement of Claim be struck out and the action dismissed. The Appellant appealed and Browne J. asked the Official Solicitor to instruct counsel to act as amici curiae.

3

In November 1965 Lawton J. heard argument for five days on the question whether the statement of claim disclosed any cause of action and, in a learned and elaborate judgment delivered on 21st December, he held that it did not because a barrister cannot be sued by his client for negligence or lack of skill in presenting his client's case in court. I shall not deal with attempts to improve the statement of claim by amendment. And I shall not deal with the facts beyond saying that possibly a case could be made out to the effect that the Respondent made some error of judgment—I am not in a position to express an opinion about that—but there is nothing in the facts before us to indicate any professional negligence or lack of skill on his part, and nothing to indicate that the Appellant would have been any better off if the Respondent had acted differently.

4

Leave to appeal was given and the Court of Appeal (Lord Denning, M.R. and Danckwerts and Salmon L.JJ.) on 20th October 1966 dismissed the appeal. Salmon L.J. said, I think justly, that the Appellant's claim was clearly as devoid of merit as it was of any prospect of success. But in view of the importance of the question of law involved this House gave leave to the Appellant to appeal.

5

The argument before your Lordships has been directed to the general question of barristers' liability and has ranged widely. For the Appellant it was said that all other professional men, including solicitors, are liable to be sued for damages if loss is caused to their clients by their lack of professional skill or by their failure to exercise due care; so why should not barristers be under the same liability? For the Respondent it has been shewn that for at least two hundred years no judge or text writer has questioned the fact that barristers cannot be so sued, and a variety of reasons have been adduced why the present position should continue.

6

I do not propose to examine the numerous authorities. It is, I think, clear that the existing rule was based on considerations of public policy. But public policy is not immutable and doubts appear to have arisen in many quarters whether that rule is justifiable in present day conditions in this country. So it appears to me to be proper to re-examine the whole matter. In doing so I shall confine my attention to conditions in England and Scotland, between which there appears to me to be no relevant difference. I do not know enough about conditions in any other country to express any opinion as to what public policy may there require.

7

There is no doubt about the position and duties of a barrister or advocate appearing in Court on behalf of a client. It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he practices, and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannot be seen to be done otherwise. If counsel is bound to act for such a person, no reasonable man could think the less of any counsel because of his association with such a client, but, if counsel could pick and choose, his reputation might suffer if he chose to act for such a client, and the client might have great difficulty in obtaining proper legal assistance.

8

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 or might seek legal redress if that were open to him.

9

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 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 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.

10

And there is another factor which I fear might operate in a much greater number of cases. Every counsel in practice knows that daily he is faced with the question whether in his client's interest he should raise a new issue, put another witness in the box, or ask further questions of the witness whom he is examining or cross-examining. That is seldom an easy question but I think that most experienced counsel would agree that the golden rule is—when in doubt stop. Far more cases have been lost by going on too long than by stopping too soon. But the client does not know that. To him brevity may indicate incompetence or negligence and sometimes stopping too soon is an error of...

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