Liability for Negligence
For over 200 years, it was accepted that advocates, including in particular barristers, were immune from suit in respect of the conduct and management of cases in court. This is extended to pre-trial work which was intimately connected with the conduct of the case in court, that it can fairly be said to be a preliminary decision affecting the way in which the case is to be conducted when it is heard.
The justifications for the immunity were based on public policy. The decision of a court should not be collaterally impugned. The general immunity and privilege of things done or said in court should not be undermined. An advocate owes a duty to the court as well as his client, and it was argued that imposition of liability for negligence might inhibit performing fearlessly and independently in court.
The House of Lords determined in 2001 that public policy considerations were no longer sufficiently persuasive and in principle, advocates could be liable for negligence in the same way as another profession. The majority of the House of Lords were of the view that there was adequate protection available in elsewhere. Attempts to re-litigate matters which were already decided in court, would constitute an abuse of process of the court.
The immunity from suit afforded to statements in the course of legal proceedings took the matter no further. As it was aimed at ensuring candour in court, it was irrelevant to the question of liability for error or misjudgement. There was existing jurisdiction to make wasted costs orders against advocates, where they fail to serve the court, as well as their client. It was also perceived that the continuation of the immunity might fall foul of the right of access to courts, afforded by the European Convention on Human Rights.
Any action may be struck out if it is a collateral challenge to the decision of a court. The courts may strike out claims on this public policy ground, so as to prevent re-litigation of an issue. The principle applies where the claimant had a reasonable opportunity to present his case, and not to cases where negligence is such as to deprive the claimant of a chance of successful appeal or the service of a suitable expert to support his claim.
The prohibition on collateral attack is less stringent in the case of consent orders, even when they embody assessment which is to be approved by the court. Although subsequent proceedings in relation to the same matter, may be presumptively abusive, they may be allowed to proceed if good reason is shown why steps were not taken to challenge the original decision by appeal or otherwise and the claimant has been deprived by either a reasonable opportunity to appreciate that substantially better terms could have be obtained, or has been placed in the position of having to accept a settlement, significantly less advantaged stages which he should have had.
Barristers are generally expected to dress conservatively in a dark-coloured suit. Wigs are not mandatory, but some judges may expect them to be worn. They were formerly mandatory, but the Courts and Court Officers Act provides that a barrister or solicitor appearing in court should not be required to wear a wig of a kind formally worn, or a wig of a ceremonial type.
A barrister’s role in civil litigation will involve preparation of the pleadings, applications and motions at the instruction of a solicitor, appearing at interlocutory or intermediary steps of the proceedings and ultimately advocacy in the trial of the matter. A barrister will attend settlements and will be central in advising clients in relation to the merit of their claim and the potential quantum of damages that might be awarded.
Barristers may not generally receive instructions directly from the public. A direct access scheme exists and Legal Regulation Act proposes a further modification of the principle.
Generally, solicitors will brief barristers by way of a formal written document. This will typically contain a statement of facts and issues, together with copies of relevant documents. The documents may include statements by witnesses, relevant transaction documents and reports of experts, as the context requires. The barrister may seek clarification of instructions or additional material. Counsel may seek clarification of instructions, which may not disclose all relevant facts. There may be assumptions and implicit matters, which needs to be clarified.
The barrister may be asked to advice on the merits of the claim on the basis of instructions, and prepare documentations to initiate a claim or apply to the court. Barristers, particularly those in the early years of practice, may spend a considerable amount of time drafting most pleadings and motions. Where a senior counsel is briefed, he may provide general advices, but there will typically be a junior counsel in the case, who drafts pleadings, motions and applications.
Barristers will advise on proofs at the trial of the action in advance. This is one of the most important functions. It is critical that a barrister advises in relation to the production of evidence on all matters required to be proved at the trial. The advice on proofs will identify the facts to be proved and the manner in which they may be proved by reference with the law of evidence.
Barristers will generally be involved in settlement discussions in conjunction with the instructing solicitor and client. Settlement meetings are commonly held in the law courts. The barrister will commonly draft the key settlement agreement in written form.
Duties to the Court
Counsel has a duty to his client, fearlessly to raise every issue, and advance every argument however distasteful, if he thinks it will help his client’s case. As an officer of the court concerned in the administration of justice however, he has an overriding duty to the court to the standards of his profession and to the public. This may and does lead to conflict with his client’s wishes and what the client thinks are his personal interests.
An advocate may take any point which he fairly believes to be arguable, on behalf of his client. However, he is not to usurp the judge. He is not to determine what the effect of the legal argument must be. Counsel must not knowingly deceive the court. If he takes and argues a bad point, it is not misconduct, provided he is not dishonest and provided that he acts in good faith.
A barrister must act independently in the interest of duty. This duty overrides all obligations, including his obligation towards the client. The barristers has a duty to ensure the court is informed of relevant decisions and legislative provisions, of which he is aware, whether or not they are favourable to his client’s interest. Procedural irregularities must be brought to the court’s attention.
Counsel must not knowingly or recklessly mislead the court. In the case of an application by one party only, there is a duty to make full and frank disclosure of all the known facts, whether they are adverse or not to the applicant. It is a barrister’s duty to act with independence, in the interests of justice, He must correct misleading information as soon as he becomes aware of it.
A Barrister must not assert a personal opinion of the facts or law, unless requested by the court. A barrister must not ask questions that are scandalous or are intended to vilify insult or annoy a a witness or another person. He must avoid time wasting and incurring unnecessary expenses.
A barrister may not lend assistance to proceedings which are an abuse of process. An abuse of process may arise where the litigation process is employed for a purpose for which it is not intended or where a case is brought, knowing it to be dishonest or knowingly conniving as at incomplete disclosure of documents. On the other hand, a barrister is not acting improperly or negligently merely because the claim or defence is doomed to fail.
The Bar Council CPD scheme applies to all practising barristers. Barristers must obtain 10 points during the practice year. Barristers may chose activities relevant to their professional needs. Points are accrued per hour of activity. Barristers must keep records of CPD undertaken, and comply with the terms of the scheme.
The activity must be of significant intellectual or practical content and deal primarily with matters related to the practice of law. It must be conducted by persons or bodies with suitable qualifications. It must be relevant to the practitioner’s immediate or long-term needs. CPD activities may include attendances at conferences, courses and seminars, teaching, training, research or writing or chairing. This may include legal research and postgraduate studies.
The course must be an education programme, seminar, lecture, conference, distance learning, group discussion or training session CPD events organised by certain organisations including the Bar Council, King’s Inns, groups of barristers, advocates in other jurisdictions, third-level institutions or other professional bodies are automatically accredited as CPD activities.
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