NEGLIGENCE BY LEGAL PROFESSIONALS
By: Robin Pandey Date: 06/03/2022
A person who undertakes to perform work should not do so without possessing the requisite degree of skill and competence required for the work.
Legal Position in England: In England, for over a century, it has been held that barristers cannot be sued for breach of professional duty. This rule was initially based on the ground that they work under no contractual obligation towards their clients and the fees received by them is considered in the nature of honorarium. Thus, in Swinfen v. Chemsford (Lord), (1860), Pollock said, "We are all of the opinion that an advocate in the English Bar accepting a brief in the usual way, undertakes a duty, but does not enter into any contract or promise, express or implied. Cases may indeed, occur where. on an express promise (if he made one) he would be liable in assuming it; but we think a barrister is to be considered not making a contract with his client but as taking upon himself an office or duty, in the professional discharge of which not merely the client, but the court in which the duty is to be performed, and the public at large, have an interest.
Halsbury's Laws of England states the law as follows: "If a barrister acts honestly in the discharge of his duty, he is not liable to an action by his client for negligence or for want of skill, discretion or diligence in respect of any act done in the conduct of a cause or in setting drafts or in advising. No action is maintainable against a barrister of unskillfully drawing pleading. The law requires of counsel nothing but the honest discharge of his duty to the best of his judgment; and it means what he does to be for the benefit of his client, he is not responsible to his client for anything he does. The immunity, from action is not confined to litigation, but extends to all cases where the relation of counsel and client exists." This statement, however, is prefaced by a statement that the client is precluded from suing counsel by the mutual incapacity of counsel and client to contract for the services of counsel.
Nearly all the textbooks and cases were based on his incapacity to sue for fees. But in 1969, this immunity of a barrister on the basis of his incapacity Se Was given a new interpretation by the House of Lords in an important age of Rondal v. Worsley, (1969), where a new concept of Public Policy was introduced as a ground for non-liability (immunity) of a barrister. It was held that, "a barrister was immune from action for negligence at the suit of a client in respect of his conduct and management of a cause in court and the preliminary work connected therewith, such as the drawing of pleading." The immunity was not based on the absence of contract between the barrister and client but on Public Policy and long usage in that (a) the administration of Justice required that a barrister should be able to carry out his duty to the court fearlessly and independently; (b) action for negligence against a barrister would make retrying of the original actions inevitable and so prolong litigations, contrary to public interest, and (c) a barrister was obliged to accept any client, however, difficult who sought his services. It was further held that "public policy did not require that barrister should be immune from action for negligence in relation to matters 'unconnected cases in court, for if he failed to exercise that ordinary care and skill that can reasonably be expected of him he should be and is in no better position than any other professional man".
Thus, in England it has long been settled that immunity of a counsel or barrister from being sued for professional negligence in the conduct of a case criminal or civil, is based on public policy, not on his contractual incapacity to sue for fees, and it is in the public interest that the immunity should be retained, one factor being that counsel owes a duty to the court for the true administration of justice. This immunity of a barrister or counsel is now statutorily recognised by Section 62 of the Courts and Legal Services Act, 1990. Legal Position in India: In India, Section 5 of the Legal Practitioners (Fees) Act, 1926, provides that "'no legal practitioner who has acted or agreed 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". Thus, in N. Veerappa v. Evelyn Squiral , 1988, the Supreme Court held that an Advocate who has been engaged to act is clearly liable for negligence to his client. The Supreme Court in this case did not decide whether an Advocate who has been engaged only to plead can be sued for negligence.
Thus, an advocate, pleader, vakil, mukhtiar, revenue agent who has agreed to represent his/her client before a Court of law will be held liable for negligence if the client suffers damages on account of his apathy, carelessness, or non-appearance before court on the appointed date and time. In Manjeel Kaur v. Deval Bus Service, 1989, appellant's husband was killed in a road accident. She filed an appeal for enhancement of the amount of compensation awarded to her but her lawyer continuously failed to appear before the Court despite several dates being given to him. Nor did he make any alternative arrangement to represent his client. The Court of Appeal therefore, passed ex-parte judgment against the appellant. The appeal for re hearing was also dismissed being time-barred. The High Court has held that the advocate had violated the Code of conduct prescribed for advocates and he was ordered to pay Rs. 1,000/- as compensation to his client who lost the case because of his negligence.