In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister could not be sued by a client for negligence or breach of duty because a barrister’s services were deemed to be gratuitous and therefore he could not sue or even make a contract for his fees with a client or with a solicitor who represented the client and correspondingly a barrister could not be sued by a client for breach of duty or negligence.
The position is summarised by Prof. Winfield in all the editions of his book ON Torts from 1937 onwards as under:
The reasons for this exemption is that in theory his services are gratuitous, and although that, by itself, is not a sufficient ground for preventing a legal duty from arising in other circumstances, the rule with regard to a barrister is inveterate, whatever be its justification.
The assumption, however, suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne & Co. Ltd. V. Heller & Partners 1963 (2) All E.R. 575. The principle has been enunciated in the speech of Lord Morris of Borth-Y-Gest as under:
If someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise.
By reason of this decision, the Court of Appeals in Rondel v. W. 1966 (3) All E.R. 657 and the House of Lord in Rondel v. Worsely 1967 (3) All E.R. 993 had to rest the immunity of a barrister from being sued for professional negligence in the conduct of a cause on grounds of public policy. The facts in Rondel’s case were that he was charged for having caused grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for some time, he was afforded the facility of a “Dock Brief” and he chose a barrister by name Mr. Worsley to act for him. The case eventually ended in conviction and the conviction was confirmed by the Appellate Court and Rondel underwent the sentence. Nearly six years later he issued a writ against Mr. Warsley claiming damages for alleged professional negligence in the conduct of his duty. The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the conduct of the case especially when the action would amount to seeking a review of the correctness of the conviction awarded to Rondel in the earlier proceedings.
In Heywood v. Wellers 1976 (1) All E.R. 300 the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff consequent on the solicitor’s negligent failure to enforce the injunction, obtained against one Reginald Marrion. In that case, the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her. The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction, they failed to enforce the injunction by bringing the defendant before the Court. As a result of the failure to enforce the injunction, the plaintiff was again molested by Marrion on 25th May and on 8th November. She suffered mental distress in consequence of the molestation committed on those dates. In an action brought by her against the firm of solicitors, it was held that she was entitled to recover damages as well as the costs incurred by her from the firm of solicitors.
In Midland Bank Trust Co. Ltd. and Anr. v. Hett, Stubbs & Kemp 1978 (3) All E.R. 571 a firm of solicitors was sued for damages for their failure to register a formal agreement, as a consequence of which the plaintiff could not enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been conveyed to another. It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client not to injure him by failing to do that which they had undertaken to do.
RE Bell’s Indenture Bell and Anr. v. Hickley and Ors. 1980 (3) All E.R. 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a constructive trustee. What happened, in that case, was that money was paid into the firm’s client account in the name of express trustees. The express trustees misappropriated the money with the solicitor’s knowledge. It was held that the solicitor was liable to replace the money as a constructive trustee.
In India, the matter is governed by the Legal Practitioners (Fees) Act, 1926. In the Legal Practitioners Act, 1879 a legal practitioner has been defined as “an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent.” The preamble to the Legal Practitioners (Fees) Act, 1926 reads as follows:
An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties.
Sections 2 to 5 are important and hence they are extracted below:
Section 2. For the purposes of this Act, unless there is anything repugnant in the subject or context,-
(a) “legal practitioner” means a legal practitioner as defined in Section 3 of the Legal Practitioners Act, 1879; and
(b) a legal practitioner shall not be deemed to “act” if he only pleads, or to “agree to act” if he agrees only to plead.
3. Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services.
4. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.
5. No legal practitioner who has acted or agree to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
A reading of these sections would go to show that any legal practitioner who acts or agrees to act for any ‘ person may settle with the said person the terms of his engagement and the fee to be paid for his professional services; that the legal practitioner will be entitled under law to institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no pre-settlement of the fee; and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner. As to whether Section 2(b) will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it. For the present we are not expressing any opinion on the matter except to point out that there is a specific provision in the Legal Practitioner’s (Fees) Act [Now abolished in India by Advocates Act] setting out that legal practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties.
Legal Practioners Act, 1879 and the Legal Practitioners (Fees) Act, 1929 regarding the liability of counsel to pay damages to their clients for breach of duty or negligence.