Trevor Rush Mccafferty Wright V. Paton Farrell+robert Paton+peter Farrell
| Jurisdiction | Scotland |
| Judge | Lord President |
| Judgment Date | 10 February 2006 |
| Neutral Citation | [2006] CSIH 7 |
| Court | Court of Session |
| Date | 10 February 2006 |
| Published date | 10 February 2006 |
| Docket Number | A5555/01 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Osborne Lord Johnston | [2006] CSIH 7 A5555/01 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION by TREVOR RUSH McCAFFERTY WRIGHT Pursuer and Reclaimer; against PATON FARRELL and ROBERT PATON and PETER FARRELL Defenders and Respondents: _______ |
Alt: Murphy, Q.C., Shand, Q.C.; Dundas & Wilson (Defenders and Respondents)
10 February 2006
Background
[1] The broad question to which the parties to this reclaiming motion invited a judicial answer is whether a solicitor, conducting in person the defence of an accused person in criminal proceedings, can be sued by his client for damages in respect of the negligent conduct of that defence.
[2] It may be doubted whether the circumstances of this case are best suited to answering that question. The party sued by the reclaimer is a partnership, comprising at the relevant time two partners, one of whom was the individual who conducted the defence at the trial. Although, in accordance with the usual convention, the partnership (a legal entity in Scotland) is sued along with the partners "as such partners and as individuals", personal liability of a partner arises in such circumstances only in the event of failure of the firm. Further the narrative given by the reclaimer tends to suggest that the failure lying at the root of the events complained of was a failure of the firm, and not necessarily of the individual who conducted the defence at trial, prior to the trial and in preparation for it; the acts and omissions complained of in respect of the individual who conducted the defence at the trial appear to be have been largely influenced by misapprehension on his part as to a particular date, that misapprehension stemming from circumstances which proceeded the trial's commencement.
[3] In the event this reclaiming motion falls, in my view, to be disposed of on a ground unrelated to the question referred to above. However, as the way in which the trial was conducted by the solicitor is at least in part the basis of the reclaimer's case and as we have heard detailed submission on the question and were informed that the views of this court on it were regarded as of general importance, I am prepared to make certain observations on it.
[4] Lord Osborne has set out the reclaimer's averments, in so far as material, and the submissions of parties. I am grateful to him for doing so. I adopt his narrative.
[5] The task of judges is to interpret the law and to apply it to the circumstances of the particular case before the court. Where the issue is one arising at common law, that will ordinarily involve an examination of the relevant law as established by earlier decisions or by acknowledged principle and the application of that law to the circumstances presently before the court. Occasionally, a higher court may require to make a judgment based less on legal precedent or on previously acknowledged principle and more on what is appropriate as a matter of current legal policy. An answer to the question posed would, in my view, require a judgment of the latter kind. In such circumstances, while what has gone before cannot be ignored, the issue is more what is, as a matter of legal policy, right now.
Historical perspective on the issue of immunity
[6] It is clear, in my view, that over time judges of the highest distinction have, at different times and on occasions at the same time, held differing views as to whether and, if so, in what circumstances legal practitioners may be sued by clients disappointed by their performance. At one point at least in the history of Scots law a clear distinction was drawn between the position of counsel on the one hand and their instructing agents on the other. In Batchelor v Pattison and Mackersy (1876) 3 R. 914 the immunity of counsel from suit for negligence was rested by the court on the public office which an advocate held. That position was contrasted with that of the agent, whose relationship with his client was stated to be one of a contract of employment
"by virtue of which the client, for certain settled rates of remuneration, is entitled to require from the agent the exercise of care and diligence, and professional skill and experience" (per Lord President Inglis at page 918).
That observation was made in the context of a litigation in the Court of Session for the purposes of which both counsel and agent had been instructed.
[7] While, accordingly, Batchelor was not to any extent concerned with the relationship between an agent (or solicitor) exercising a right of audience in a lower court, whether civil or criminal, and his client, there is no doubt, in my view, that such a relationship was and is essentially of a contractual or other obligatory character with, subject to an argument as to classification subsequently to be addressed, duties of care arising out of that relationship. Lord Osborne has examined the pre-1967 authorities touching on the relationship between a client and an agent performing court-related functions for that client. While no case deals precisely with conduct of the kind criticised in the present action, I agree with Lord Osborne that there is no suggestion that an agent enjoyed immunity from suit in respect of his conduct of litigation in a lower court in which he was exercising a right of audience. Despite counsel's careful analysis of passages from Bankton's Institutes, I am not persuaded that they give adequate support to the proposition that immunity attached to the function of "advocacy" (whatever precisely its parameters) such that an agent, exercising that function in a lower court, was essentially in the same position as counsel. Even if that proposition might have been maintainable at one stage in the development of the law, there is no support for its survival into the nineteenth century. Had it so survived, it is difficult to understand how the principles enunciated in Batchelor could have been expressed in the way they were. That said, none of the authorities discussed by Lord Osborne directly addressed, far less determined, the question whether a solicitor exercising a right of audience enjoyed immunity from suit; none of them, in my view, precludes this court, in the light of the current requirements of the due administration of criminal justice, from determining that question one way or the other.
[8] Important developments subsequently occurred, concerned immediately with the liability to suit of barristers appearing in the courts of England and Wales. In Rondel v Worsley [1969] 1 A.C. 191 (the speeches in which were delivered in November 1967) the House of Lords held that a barrister was immune from an action for negligence at the suit of a client in respect of his conduct and management of a case in court and in respect of preliminary work connected with court proceedings. The immunity, it was held, was not based on the absence of a contractual relationship between the barrister and the client but on certain public policy considerations (Lord Reid at page 227). Although the case concerned an English barrister and an accused person from whom he had accepted a dock brief, many Scottish authorities, including Batchelor, were cited in argument. Lord Reid, delivering the first speech and expressing the view that the existing rule was based on considerations of public policy, stated that there appeared to him to be no relevant difference in that respect between conditions in England and in Scotland (page 227). Although no issue arose in that case about the liability of solicitors, Lord Reid thought that some assistance could be got from looking at the record of solicitors (page 230). He observed:
"They are liable to be sued for negligence in conducting cases and they do conduct an immense number of cases in the lower courts".
Although reported decisions were few, Lord Reid noted that there had been
"one or two Scottish cases where a solicitor has been held negligent in carrying out work in court which would have been done by an advocate if counsel had been instructed" (page 231);
His Lordship does not name the Scottish cases which he had in mind but Ritchie v Macrosty (1854) 16 D. 554, Urquhart v Grigor (1857) 19 D. 853, Smith v Grant and Leslie (1858) 20 D. 1077 and Murray v Reilly 1963 S.L.T. (N) 49 are noted as having been cited in argument (page 207). Having held that, for the public policy reasons which he had expressed, it was in the public interest to retain, to the extent indicated, the existing immunity of barristers from actions for professional negligence, Lord Reid returned to the position of solicitors. At page 232 he indicated his "present view" as being that
"the public interest does require that a solicitor should not be liable for negligence in carrying out work in litigation which would have been carried out by counsel if counsel had been engaged".
[9] While that observation was obiter and expressed in an English case, it was, in my view, the logical consequence of the reasoning which had led Lord Reid to his conclusion in relation to barristers' immunity. The logic was endorsed by Lord Pearce at page 267, by Lord Upjohn at page 284 and by Lord Pearson at page 294. Thus, while there were prior indications, although not fully considered decisions, to the effect that solicitors were liable to be sued for negligence in the conduct of cases in the lower courts, public policy considerations, as at 1967 and equally applicable in Scotland as in England, pointed to the conclusion that solicitors should, in respect of equivalent work, have the same immunity as barristers or advocates.
[10] At page 227 Lord Reid had observed that public policy was not immutable. In Saif Ali v Sidney Mitchell & Co. [1980] A.C. 198 the House of Lords required to consider the scope of the immunity from suit enjoyed by a barrister - on this occasion in...
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