Saif Ali v Sydney Mitchell & Company

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date13 May 1977
Judgment citation (vLex)[1977] EWCA Civ J0513-2
Docket Number1976 A. 4933

[1977] EWCA Civ J0513-2

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice Queen's Bench Division

(Mr. Justice Kerr)


The Master of The Rolls (Lord Denning)

Lord Justice Lawton and

Lord Justice Bridge

1976 A. 4933
Saif Ali
Sydney Mitchell & Co. (a firm)
1st Defendant
A.W. Smith & Co. (a firm)
2nd Defendant
Christopher John Smith
3rd Defendant
Third Party

MR. G. LIGHTMAN (instructed by Messrs Sydney Mitchell & Co., Solicitors, Solihull) appeared on behalf of the Defendants (Respondents).

MR. A. LEGGATT, Q.C. and MR. C. SMITH (instructed by Messrs. Hewitt Woollacot & Chown, Solicitors, London) appeared on behalf of the Third Party (Appellant).


As long ago as the 26th March, 1966 there was a motor accident. Mr. Mohammed Akram was driving a Morris van at Morley in the Vest Riding, Mr. Saif Ali was a passenger in the van. There was a collision with a motor car driven by a lady, Mrs Sugden. She vas driving her children to school. It looked as if it was her fault entirely. At any rate, on the 18th October, 1966 she pleaded guilty before the magistrates to driving without due care and attention.


In 1967 both Mr. Akram the driver and Mr. All the passenger consulted a solicitor with the intention of making a claim. The solicitor went to a barrister for advice. In October 1968 the solicitor, on behalf of both Mr. Akram and Mr. Ali, instructed the barrister to settle proceedings and to advise. The barrister settled a draft writ and a draft statement of claim claiming damages against Mr. William Sugden only. He was the husband and owner of the car driven by Mrs. Sugden. In the draft statement of claim, the barrister alleged that Mrs. Sugden drove as agent of her husband Mr. Sugden.


On the 14th November 1968 the solicitor issued the writ and statement of claim as settled by the barrister, but they did not serve it at that time. Later on the solicitor had a meeting with the insurers of Mr. Sugden, the owner of the car. The insurers alleged that there was contributory negligence by Mr. Akram the driver of the van; and also that the agency of Mrs. Sugden might be in issue. The solicitor says that he spoke to the barrister in the coffee room at the Law Courts and told him of what the insurers had said: but that the barrister did not advise any change in the writ or the statement of claim. This was, it is said, a mistake by the barrister. The three year period of limitation would expire on the 26th March, 1969. Thebarrister. It is said, ought to have advised the passenger Mr. All to he separately represented and to sue both drivers Mrs. Sugden and Mr. Akram.


At any rate, on the 26th March, 1969 the limitation period expired without any amendment having bees made. The writ was served on the 29th August. 1969 on Mr. Sugden. In November 1969 the barrister advised that Mr. All should be separately represented. So the action continued against Mr. Sugden with the plaintiffs Mr. Akram and Mr. All being separately represented. Mr. Sugden put in a defence in which he admitted that his wife Mrs. Sugden was acting as his agent. Then the case seems to have dragged along for two years or more. The admission of agency remained on the record until January 1972 when Mr. Sugden applied for leave to withdraw it and to deny that his wife was acting as his agent. (This was the consequence, no doubt, of the case of Launchbury v. Morgans then about to be heard by the House of Lords. Leave was given. The admission of agency was withdrawn. The House of Lords gave their decision on the 9th May, 1972 (see(1973) Appeal Cases 127). Mr. All's advisers seem to have thought that that decision made it Impossible for the case to continue against Mr. Sugden. So they discontinued the action against him. The result of this discontinuation was fatal to Mr. All. By 1972 the period of limitation had long since expired. Mr. All could not issue a fresh writ against either driver. His action against them was barred altogether. So he turned round on the solicitors who had represented both Mr. Akram and him until September 1969. On the 19th September. 1974 he Issued a writ against them. He alleged that, nearly six years previously they were negligent in that they failed to advise him to take proceedings against either or both the drivers.


The solicitors then turned round on the barrister. They said that he had been at fault in advising the plaintiff to sue Mr. Sugden alone and in not suing the wife who was driving. (Mr. All as a passenger had an unanswerable claim against the wife for full damages as she was clearly negligent? and even if Mr. Akram was also negligent, that would not reduce Mr. All's damages). So the solicitors on the 29th May, 1975 issued a third party notice against the barrister asking that he should indemnify them. Mr. All followed suit. He joined the barrister as an additional defendant to his claim against the solicitors. The barrister took out a summons to dismiss the claim against him on the ground that it disclosed no reasonable cause of action. The registrar struck it out. But Mr. Justice Kerr restored it. He did it with some hesitation, but he felt that the point was so important that it should be tried out.


Now in fairness to the barrister, it should not be taken for granted that he was negligent. At the time when he advised in 1968 and 1969 I venture to think that everyone in the profession would have thought that the husband Mr. Sugden was liable for the negligent driving of his wife. He was the owner of the car. He was the person insured. She was driving the children to school and was doing it, no doubt, on his behalf as well as hers. The previous authorities would appear conclusively to show that she was acting as his agent. (These authorities will be found summarised in Launchburv v. Morgans in this court (1971) 2 Queen's Bench at page 254). Those authorities were not overruled by the House of Lords (1973) Appeal Cases 127 The decision of the House turned on the very unusual facts. The husband was driving his wife's car on a "pub crawl". It was a frolic of his own, if ever there was one.


Nevertheless for present purposes it is to be assumed that the barrister was negligent. And the question Is whether an action lies against him in that account. The position of a barrister was much considered in Rondel v. Worsley (1969) 1 Appeal Cases 191. It is not necessary to discuss the principles at length today. It is settled that a barrister is not liable for negligence in the conduct of a case in court. The only question in the present case is whether the principle extends to negligent advice before the issue of proceedings, such as here where counsel advised that Mr. Sugden alone should be sued: when the proper advice would have been to sue the driver Mrs. Sugden also.


To my mind the public policy, which grants immunity, applies to advice before proceedings are begun: just as much as to the conduct of the case in the court itself. The duty of counsel to the court is paramount. He must do it even at the risk of losing his client. He must be fearless in doing it. He must be independent of the wishes of the client, no matter how pressing and no matter how high the fee. He must not allow a charge of fraud to be made unless there is evidence to support it. He must not sanction the issue of proceedings if there is ground for supposing that they are to be used as an instrument of extortion or of oppression or blackmail. In giving his opinion beforehand he must only advise proceedings if there is a reasonable case to be made - putting away from himself, like the plague, any thought of the extra fees which would come to him If the case was fought - and remembering the hardship on the other side if harrased unfairly. This is his responsibility in every case but especially in legal aid cases where the litigation is at the expense of the States and the area committees rely much on the opinion of counsel.A barrister would not be able to give his advice properly as he ought if he vas liable to be sued by every dissatisfied or disappointed client. It is to ensure his independence that he is granted immunity.


In support of this, I would quote one sentence, if I may. from my own...

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