When the House of Lords in Arthur JS Hall v Simons (2000) abolished a barrister’s automatic immunity from law suits for negligent work carried out in court, there were fears that the floodgates would open and that disgruntled unsuccessful litigants, or defendants in criminal cases, would bring claims against their former barristers and that insurance premiums would rise accordingly.
The Lawyer (3 September 2001) reported that “advocates are now much more in the firing line”. While it is true that claims can now be made against barristers which were unlikely to have got off the ground before Hall v Simons, this is not necessarily the case in reality. According to the bar’s insurers, Bar Mutual Indemnity Fund Limited (BMIF), the number of claims notified is stable, and although premiums have risen for barristers carrying out some categories of work, they have fallen in other areas by way of compensation. BMIF has noticed a slight rise in the number of claims made in respect of alleged under-settlement of personal injury claims, but this is far from a “trend”.
There have been some claims brought where a claimant criticises a barrister’s conduct in court, but a large proportion of those claimants have been litigants-in-person. There have been some serious claims, of course, one such being Chetan Popat v Barnes (2004). The claimant was convicted of various offences in July 1997 and his appeal was dismissed in March 1998; on both occasions he was represented by the defendant barrister. The case went back to the Court of Appeal in July 1999 through the Criminal Cases Review Commission, and a retrial was ordered at which the claimant’s conviction was quashed; the defendant did not represent the claimant at the second Court of Appeal hearing or at the retrial. At the first trial, a Notice of Alibi had been served on behalf of the claimant and the claimant’s parents had given evidence that the claimant had been with them when the alleged offences were committed. The first trial judge did not give an alibi direction to the jury in his summing up. The only allegation raised by the claimant against the defendant in the professional negligence action was that her “failure” to draw this omission to the attention of the trial judge and to the first Court of Appeal had lost the claimant the chance of obtaining a not guilty verdict at the first trial, or of having the verdict overturned at the first appeal. The judge hearing the professional negligence action, Mr Justice Buckley, accepted evidence from the defendant that she had discussed the issue with counsel for the prosecution at the first trial and that she honestly believed that to recall the jury for them to be given an alibi direction by the first trial judge would be against the claimant’s best interests and that the claimant had agreed with this approach at the time. The defendant did not believe it was appropriate to raise the point as a ground of appeal at the first appeal in light of the claimant’s consent. Barristers have to take many tactical decisions and Judge Buckley was able to come to the view that the decisions by the defendant not to draw the lack of an alibi direction to the trial judge’s attention, nor to use the lack of such a direction as a ground of appeal, were not decisions that no reasonably competent member of the bar would have taken.
That a barrister cannot be held to have acted negligently unless they have made an error “such as no reasonably well-informed and competent” barrister would have made (the words used in Saif Ali v Sydney Mitchell & Co (1980) by Lord Salmon) appear time and again in the law reports. Not only was the defendant barrister in Popat making a tactical decision which any other reasonably competent barrister could have taken, but the barristers in Bark v Hawley & Rodgers (2004) and Luke and Anor v Wansbroughs and Anor (2003) were advising in a way in which other barristers could have advised.
The Bark case in particular is interesting. The claimant had cerebral palsy from birth in 1969 and had consulted solicitors in 1996 in respect of a possible claim against her GP arising out of these events. Legal aid was obtained. The solicitors had instructed the barrister in 1999 and 2000, but the barrister’s advice on the second occasion was that an application under Section 33 of the Limitation Act 1980 would almost inevitably fail. No proceedings were commenced against the GP. However, the claimant then commenced proceedings against the solicitors, alleging that they had negligently failed to commence proceedings against the GP. Naturally, the solicitor’s firm defended the claim, alleging that the potential claim against the GP would not have got off the ground as it was stale by the time it was instructed in 1996, but it also commenced Part 20 proceedings against the barrister on the basis that if it was liable to the claimant, then so too was the barrister for advising in 2000 that a claim against the GP brought out of time, but under Section 33 of the Limitation Act, would inevitably fail. On the face of it, this was a risky tactic by the solicitors’ firm, as it exposed it to a large claim for costs if it defeated the claimant’s claim. In any event, the barrister applied for summary judgment in the Part 20 claim, or in the alternative for it to be struck out. Mr Justice Hughes struck out the Part 20 claim. His view was that the barrister’s advice was one that could have been given by a reasonably competent member of the bar and, moreover, was in fact correct. The judge commented that the solicitors had not believed that the barrister’s advice was wrong when the firm had received it and nor had it sought a second opinion. Although not as persuasive as the fact that in Popat the barrister had obtained the lay client’s consent to her proposed course of action, the firm’s lack of concern over the barrister’s advice in Bark cannot have helped its case.
Therefore, if a barrister considers the relevant authorities or makes an informed tactical decision, a finding of negligence in respect of the barrister’s advice is unlikely if that advice was one which a reasonably competent member of the bar could have given.
Previously, barristers have seldom retained notebooks or papers or made notes of why they gave a particular piece of advice, but this too is changing, making it easier to provide evidence to support the barrister’s defence.
If the courts continue to adopt the same robust approach as the judges in Popat and Bark, then a flood of cases against the bar would appear unlikely.
John Bennett is a partner at Weightmans