Saif Ali v Sydney Mitchell & Company

CourtHouse of Lords
JudgeLord Wilberforce, Lord Diplock, Lord Salmon, Lord Russell of Killowen, Lord Keith of Kinkel
Judgment Date02 Nov 1978
JurisdictionEngland & Wales

[1978] UKHL J1102-2

House of Lords

Lord Wilberforce

Lord Diplock

Lord Salmon

Lord Russell of Killowen

Lord Keith of Kinkel

Saif Ali and Another
(Respondents)
and
Sydney Mitchell and Company (A Firm) and Others
(Appellants)

Upon Report from the Appellate Committee to whom was referred the Cause Saif Ali and another against Sydney Mitchell and Company (a firm) and others, That the Committee had heard Counsel as well on Monday the 10th as on Tuesday the 11th and Wednesday the 12th days of July last upon the Petition and Appeal of Sydney Mitchell and Company (a firm), A. W. Smith and Company (a firm) both of 6 Herbert Road, Solihull, and Christopher John Smith of 77 Etwall Road, Hall Green, Birmingham 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 13th day of May 1977 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 Petitioners 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 Richard Sidney Lindley Penn 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 13th day of May 1977 complained of in the said Appeal be, and the same is hereby, Reversed and that the Order of the Honourable Mr. Justice Kerr in chambers of the 24th day of February 1977, set aside by the Court of Appeal be, and the same is hereby, Restored: And it is further Ordered, That the Third Party Respondent Richard Sidney Lindley Penn do pay or cause to be paid to the said Appellants the Costs incurred by them in the Courts below and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Wilberforce

My Lords,

1

In Rondel v. Worsley [1969] 1 A.C. 191, this House decided that a barrister was immune from any action for professional negligence in respect of acts or omissions during the trial of criminal proceedings against his lay client. Now in this case it is necessary to decide whether the barrister's immunity covers pre-trial acts or omissions in connection with civil proceedings brought by his lay client.

2

The plaintiff, Mr. Saif Ali, a passenger in a motor car driven by his friend, Mr. Akram, was injured on 26th March 1966 in a collision with another car driven by Mrs. Sugden, to whose husband the car belonged. There is no doubt that Mrs. Sugden was to blame, and possibly wholly to blame. On the instructions of solicitors the barrister settled proceedings and drafted a pleading on behalf of Mr. Ali and Mr. Akram against Mr. Sugden. This was on the basis that as Mrs. Sugden was using the car to drive their children to school, Mr. Sugden was responsible for her negligence. Though, with hindsight, it might have been wise to sue Mrs. Sugden as well as her husband, the course adopted, to sue Mr. Sugden who was the insured party, was correct in law. Indeed it appeared at first that Mr. Sugden would not deny responsibility. However, when his insurers took charge of the matter, they suggested (a) that Mrs. Sugden's agency for Mr. Sugden might be disputed and (b) that a case of contributory negligence might be raised against Mr. Akram. The barrister was informed of this and instructions were sent to him to consider amendment of the pleading. By this time, 24th February 1969, such was the leisurely pace of proceeding, there was little time left before the three year period of limitation from the date of the accident (on the 26th March 1969) would expire. The barrister, however, so it is said in the third party notice, orally confirmed his advice that no amendment was necessary, on what date is not stated, and later, on 1st April 1969, advised in writing. When he did this the three year period had elapsed, and the advice was that it was too late for the plaintiff to sue Mr. Akram. It was also, of course, too late to sue Mrs. Sugden. Mr. Sugden in his first defence dated 16th October 1969 denied Mrs. Sugden's agency, but by an amendment in June 1971 admitted it. Later still (apparently in June 1972) he asked leave to re-amend so as to deny the agency. This seems to have been agreed to unconditionally by the plaintiff's solicitors, and leave was given. Later, on the advice, it is said, of leading counsel, proceedings against Mr. Sugden were dropped, so the plaintiff, who started with an impregnable claim for damages, found after 5 years that he had nobody he could sue. He therefore brought proceedings against his solicitors for negligence, and the solicitors brought third party proceedings against the barrister. Later, the plaintiff also brought direct proceedings against the barrister. This appeal is concerned with the third party proceedings only. The Court of Appeal has struck them out on the ground that the barrister is immune from suit.

3

It is important to see what is the precise negligence alleged. According to the amended third party notice the negligence consisted of:

(i) delaying until after the expiry of the limitation period to advise whether the proceedings should be resettled in view of the non-admission by Mr. Sugden that Mrs. Sugden was driving as his agent and the possible negligence of Mr. Akram.

(ii) failing to advise until a late stage that there might be a conflict of interest between the plaintiff and Mr. Akram.

(iii) failing to advise the plaintiff that he should take proceedings against Mr. Sugden and/or Mrs. Sugden and/or Mr. Akram and advising that proceedings should be issued against Mr. Sugden only.

4

For the purposes of this appeal it has to be assumed that the factual basis for these allegations (as set out above) is correct, that there was some degree of negligence on the barrister's part as regards one at least of the three matters, that such negligence resulted in damage and that the solicitors are entitled to indemnity or contribution from the barrister. All of these assumptions may turn out to be incorrect if the matter goes to trial, but cannot be challenged at this stage.

5

The question now for this House is whether on the assumptions stated the claim by the solicitors against the barrister is so clearly unfounded that it ought to be struck out. This involves a reconsideration of Rondel v. Worsley in order to see what rule of law is to be extracted from it.

6

Rondel v. Worsley gave rise to a restatement of the traditional principle of barristers' immunity in the light particularly of the decision of this House in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465. Previously an important if not the main reason for the immunity was supposed to lie in the fact that a barrister could not sue for his fees: this reason, if valid, would of course have thrown a blanket of immunity over all barristers' actions, in or out of court, whatever their nature. This House, however, in 1967 took the inevitable view that this reason no longer applied: liability for negligence might exist in the absence of a contract for reward. Nevertheless the immunity was held to exist on grounds, essentially, of public policy; mainly upon the ground that a barrister owes a duty to the court as well as to his client and should not be inhibited, through fear of an action by his client, from performing it; partly upon the undesirability of relitigation as between barrister and client of what was litigated between the client and his opponent. This necessarily involved a removal of the total blanket immunity and a restriction of it to such cases as might fall within the area of public policy.

7

Rondel v. Worsley was concerned and only concerned with matters taking place in court which resulted in an outcome unfavourable to the client. But the speeches contain considered observations as to the extent of barristers' immunity for matters taking place outside court and in barristers' chambers. Since the case was not concerned with such matters, these observations have the status of obiter dicta. However, not all obiter dicta have the same weight, or lack of weight, in later cases. Of those then made in the House two things may be said. First, they were considered and deliberate observations after discussion of the same matters had taken place in the Court of Appeal and in the light of judgments in the Court of Appeal. It may be true that the counsel in the case did not present detailed arguments as to the position outside the court room—they had no interest in doing so—but I cannot agree that this invalidates or weakens judicial pronouncements. Judges are more than mere selectors between rival views— they are entitled to and do think for themselves. Secondly, it would have been impossible for their Lordships to have dealt with the extent of barristers' immunity for acts in court without relating this to their immunity for other acts. As I shall shortly show their Lordships attached the immunity to the conduct of litigation. But litigation takes some time to arrive in court for trial, so unless they were prepared to confine the immunity to that part of litigation which occurs in the court room, it was not only appropriate but necessary to deal with such acts—in relation to litigation—as occur outside the court room. A statement of principle which stopped at the door of the court would have been...

To continue reading

Request your trial