Safer to fight than to settle?

Just how vulnerable are barristers acting in family law cases to negligence claims? John Harvey examines the evidence. John Harvey is a barrister at 4 King's Bench Walk.

The liability of a barrister for negligence was restated clearly in Ridehalgh v Horsfield (1994) as follows: “The law imposes a duty on lawyers to exercise reasonable care and skill in conducting their clients' affairs. This is a duty owed to and enforceable by the client to protect him against loss caused by his lawyer's default. But it is not an absolute duty. Considerations of public policy have been held to require, and statute now confirms, that in relation to proceedings in court and work closely related to proceedings in court advocates should be accorded immunity from claims for negligence by their clients.”

This summarised Rondel v Worsley (1969), Saif Ali v Sydney Mitchell (1980) and section 62 of the Courts and Legal Services Act 1990. The case concerned liability for wasted costs. The amendments of the Act make it clear that an advocate may be liable to be made subject to a wasted costs order if costs incurred by a party are wasted as a result of “any improper, unreasonable, or negligent act or omission”.

The court construed “negligent” in the context of wasted costs as “failure to act with competence reasonably to be expected of ordinary members of the profession”. It stated that this was wider than “negligent” used as a term of art, but then added that the applicant would not have to prove any less in a wasted costs application than in a negligence action.

All of the appeals heard with Ridehalgh resulted in no order for wasted costs being made against the various lawyers involved. It is not clear whether any of the original litigants sued their own lawyers. While the reasoning of the court suggests that wasted costs orders may be made whenever an advocate has acted “negligently”, application of this reasoning to the facts of the individual appeals suggest that they will be made much more sparingly than this. It seems unlikely that an advocate will be made the subject of a wasted costs order simply because no responsible lawyer would have pursued such a case to its eventual loss when viewing the likely outcome of the facts as a whole. The court in Ridehalgh recognised that an advocate is not liable in negligence simply because he or she pursues a case which is “doomed to fail”. The same follows from the actual decisions in relation to wasted costs.

The statement in Ridehalgh that “…in relation to proceedings in court and work closely related to proceedings in court advocates should be accorded immunity from claims in negligence by their clients” needs to be reconsidered in the light of the decision of the Court of Appeal in Kelley v Corston (10 July, 1997). However, see The Lawyer, 2 September 1997, where Lord Justice Judge's minority judgment is reported. Ancillary relief proceedings were compromised at the door of the court.

The critical allegation of negligence was that the overall effect of the settlement meant that the wife was unable to finance the mortgage repayments on the former matrimonial home after it was transferred into her name. Negligence was denied in the defence, which also alleged that the statement of claim did not disclose a reasonable cause of action “in that each and every act or omission of the defendant relied upon is covered by the immunity from suit of the defendant as a barrister”.

The appeal centred on an application to strike out the claim for that reason. The majority of the court held that there was general immunity for barristers in respect of settlements made at the door of the court.

Lord Justice Butler Sloss said: “The problem is where to draw the line. It is important not to extend the protection of the advocate beyond that which is genuinely needed to maintain the integrity of public justice. It is also important to have a clear, workable rule which would be well understood that the advocate was or was not covered by immunity from suit at the door of the court. There may be an illogicality in protecting the advocate in giving his advice on the day of the hearing and not protecting him in giving the same advice in chambers or the office the day before.”

The unfortunate result for matrimonial ancillary relief and other civil cases is that, while the pressure from on high and from the public is for early settlement, such settlement will not attract immunity for negligence. On the other hand, the limited use of the sanction of wasted costs makes it safer to fight than to settle – at least until the doors of the court are reached.