Description
The Claimant was a firm of solicitors who had instructed a barrister to provide advice and represent three claimants at the trial of the underlying action. Shortly before trial both solicitors and Counsel became concerned as to whether one of the claimants was capable of providing instructions. After consultation an application was made to the Court to adjourn the trial in order to determine whether that claimant should be represented by a litigation friend. Despite being ordered to attend the application the claimant absented himself from the jurisdiction. The Court issued an unless order in respect of that claimant's claim requiring him to submit to a medical examination. The Claimant failed to. Proceedings were then brought against the firm on the basis that they should not have issued the application and had lost the claimant the opportunity of obtaining judgment. The firm compromised the claim and sought an indemnity and / or contribution from the barrister. The firm contended that it had been bound to follow the advice of the Defendant and that advice given by the Defendant was negligent. The Court had to consider the appropriate test to be applied in determining whether the Defendant was negligent and the relationship between solicitor and barrister. First, it was a proper use of the Bar for a solicitor without experience in a particular field to rely on counsel's advice particularly on questions of law. The test to apply was that a barrister should conduct himself in his professional work with the care and skill of a barrister of ordinary skill who would be competent to handle that type of and weight of work, and a breach of that duty occurred when the error was one which no reasonably competent member of the profession possessing those skills should have made. A relevant consideration was the number of years call of that barrister. Second, the barrister might be instructed to draft pleadings or prepare schedules on the facts presented to him and should do so according to the solicitor's instructions provided that he could comply with the rules of professional conduct. In between, the roles of the barrister and the solicitor would normally reflect the co-operative relationship between the barrister and solicitor in a particular case. By reason of the solicitor's closer relationship with the client, the barrister would have to rely to a greater or lesser extent on the solicitor for the factual basis on which advice should be given. The advice of the barrister was appropriate in the circumstances and even if it had been wrong it would have been a mere error of judgment not amounting to negligence.
