UK: Barristers´ Liability - The Current Landscape

Originally published in BLG Lawyers' Liability Briefing: Issue 22.

In Awoyomi v Radford (2007) the defendant barrister relied on immunity from suit in a criminal matter because the relevant events all took place in 1995, well before the House of Lords ruled on abolition.

The court rejected this argument on the basis that the Lords in Hall had concluded that the change in the law to remove immunity from suit applied retrospectively to the conduct that formed the subject of the appeals, which had occurred in 1991. Further, there was nothing in the judgment of the majority to suggest that the abolition of immunity should be applied to a more recent date for criminal proceedings than for civil proceedings. As the relevant acts in Awoyomi had occurred in 1995, by which time barristers no longer enjoyed immunity, the barrister could not rely on this defence.

It appears, therefore, that as from 1991 at least, it was no longer justifiable to rely on immunity from suit and that any defence based on immunity would fail if the events in question took place after that time. Whether immunity remains for claims involving events pre-dating 1991 is uncertain.

From our experience, Hall has not opened the floodgates to more claims being made against barristers. However, there have been claims made against barristers that once might have been thought to be hopeless.

The courts have also had to grapple with the extent of responsibility counsel should bear in relation to advice given at the courtroom door, including where both solicitors and counsel are in the firing line.

In Moy v Pettman Smith (2005), for example, the barrister's advice at the door of the court was alleged to have been negligent. The barrister had advised the claimant to reject a Part 36 offer of £150,000 on the ground that he should beat it and he would be better off proceeding with the action. The barrister did not add that her chances of persuading the court to admit key evidence that would increase the value of the claim was only 50:50. Without this evidence, the existing offer was a reasonable one. The court did not admit the evidence, the claimant was no longer able to accept the Part 36 offer and he had to accept a smaller amount.

The Court of Appeal found that the barrister's advice was not negligent. However, she had negligently failed to give more detailed advice. In particular, she should have given more detailed advice on the chances of getting the key evidence admitted. The House of Lords agreed with the Court of Appeal that the advice itself was not negligent. However, unlike the Court of Appeal, it did not consider that she was negligent for failing to "spell out" her advice to the claimant.

A crucial factor was that both the Court of Appeal and House of Lords recognised that the difficulties and pressures on a barrister advising at the door of the court "can be heavy" and "in such circumstances it would be surprising if every piece of such advice were reasoned with as much comprehensive precision as may be applied in hindsight by an appellate tribunal which has the benefit of extensive argument and leisurely reflection." Lord Hope added that "...Judges need to be careful lest the decision in the case depends on the standard they would set for themselves. If this were to happen, it would vary from judge to judge and become arbitrary."

It is encouraging to note that judges recognise that they have to steer away from reflecting on what they themselves might have done, often with the bright beam of hindsight, and focus instead on what a reasonably competent barrister or solicitor would have done in the same circumstances.

It is frequently the case that claims against barristers will also include a claim against the instructing solicitor. These claims often give rise to a debate on the extent to which the solicitor is entitled to rely on the barrister's advice to escape liability.

In Regent Leisuretime Ltd v Skerrett (2006), the solicitor sought specialist advice from the barrister in a potential claim against a bank for fraudulent misrepresentation. The court confirmed that a solicitor is entitled to rely on a barrister's advice when properly instructed, although the solicitor cannot rely on the advice without exercising his own independent judgement. The more specialist the field, the more reasonable it will be for the solicitor to accept and act upon the barrister's advice although, even then, if the solicitor is also a specialist in the field, it is less likely that it is reasonable for the solicitor to rely on the advice without exercising his own independent judgement. In Leisuretime, the court found that it was reasonable for the solicitor to rely on counsel's advice because it was in a specialist field.

However, in Hickman v Blake Lapthorn (2006), the claimant instructed the solicitor in relation to his claim for damages against the Motor Insurers Bureau (MIB) for a severe head injury arising out of a motor accident involving an uninsured driver. The solicitor instructed the barrister to advise on liability, and he was given copies of the claimant's medical reports. The solicitor had no previous experience of valuing serious head injury claims but had studied the medical reports in detail. These medical reports suggested that his future employment prospects could be limited due to his injuries. The claimant agreed to have a split trial on liability. At the door of the court, the MIB offered the claimant £70,000. The barrister had not considered fully the value of the claim but he advised the claimant to accept the offer. He calculated that it was a generous one. However, this calculation appears to have been made on the assumption that the claimant would return to full time employment. However, when he was unable to return to work, the claimant brought a claim against both solicitor and barrister on the basis that neither had taken into account the possibility that he would not work again. He said he would not have accepted the offer had he been advised of the potential size of his claim.

The court held that the barrister should have been familiar with the medical reports and should not have advised on settlement until he was. His decision was not an error of judgement, as further enquiry would have revealed the full situation, which would have then had an impact on the advice given. He also held that it was the solicitor's duty to intervene, and she had breached her duties as a solicitor by failing to alert the barrister to the possibility that the claimant may not have been able to return to full time employment. However, the fact that the barrister was more senior, had greater experience and he led the valuation of the claim, led to liability apportioned as two thirds to the barrister and one third to the solicitor.

This finding is consistent with the accepted position that even in a specialist sphere, if the barrister's advice is based on the wrong facts the solicitor cannot expect to escape liability if he or she is aware of the error.

Most recently, in Pritchard Joyce and Hinds v Batcup (2008), in which the solicitors were awarded a 75 per cent contribution from counsel to a settlement they had made to the client who had sued for failure to advise on an action within the limitation period, the court held that whilst the causal contributions of solicitors and counsel were equal, counsel should bear a greater extent of the responsibility. The relationship was one where the solicitors looked to counsel for guidance on the key strategic issues concerning the conduct of the litigation.

In summary, it appears to us that, whilst the floodgates have not opened, barristers are facing claims that once might have been considered to be covered by immunity. In addition, it appears that, increasingly, the courts are being required to consider the role played by barristers and the division of responsibility in claims where solicitors are also sued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.