Friday Law Report 18 June 1999 - Barrister owed no duty to opposing client

Connolly-Martin v Davis

Court of Appeal (Lord Justice Beldam, Lord Justice Brooke and Lord Justice Mummery) 27 May 1999

AS A matter of principle, counsel on one side of litigation was not, in the absence of any special assumption of responsibility, sufficiently "proximate" to the opposing party in the litigation for any question of a legally enforceable duty of care to arise.

The Court of Appeal allowed the defendant's appeal against a decision reversing an order that the plaintiff's claim against him in negligence should be struck out.

The plaintiff claimed damages in negligence against the defendant in respect of his conduct as counsel for the defendant, Spearhead Technical Consultancy Ltd (STC), in proceedings brought by Ashley Site Management Ltd (ASM), a company of which she was principal shareholder and manager, in which ASM claimed that STC owed it pounds 153,795.80 for services rendered.

It was the plaintiff's case that ASM would, had it not been for the defendant's negligence with regard to an undertaking signed by him in the absence of instructions from STC, have succeeded in its action against STC. The defendant successfully applied to the master to have the writ and statement of claim struck out as disclosing no reasonable cause of action or as an abuse of the process of the court.

The judge allowed the plaintiff's appeal against the master's order, finding two incidents of reliance which arguably gave rise, on the facts of the case, to a duty of care owed by counsel on one side of litigation to the opposing party in that litigation. The defendant appealed.

David Richardson (Giffen Couch & Archer) for the plaintiff; Marion Smith (Biddle & Co) for the defendant.

Lord Justice Brooke said that it was well settled that as a general principle counsel owed a duty to his lay client to do for him all that he properly could, with due care and attention. He owed no such duty, however, to those who were not his clients. He was no guardian of their interests, and indeed what he did for his client might be hostile and injurious to his opponents.

Counsel did not assume a voluntary responsibility to the other side, on which it might reasonably rely, to advise and to continue to advise his client of the legal effect of an undertaking he had given to the court on its behalf. The other side might hope or expect that he or his instructing solicitor would give the client the requisite advice, but was not entitled to place reliance on his doing so.

Without expressing any settled opinion on the best course open to ASM, the present case was not one in which it was clear that the law did not offer ASM a potential remedy, and there was, therefore, no need to accede to any temptation to depart from the principled development of the law of negligence simply because the justice of the case seemed to demand it.

As a matter of principle, counsel on one side of litigation was not, in the absence of any special assumption of responsibility, sufficiently "proximate" to the opposing party in the litigation for any question of a legally enforceable duty of care to arise.

The judge below had been persuaded, in the light of certain passages towards the end of the judgment of Lord Woolf MR in R v Legal Aid Board, ex p Kaim Todner [1998] 3 All ER 541, that it would be appropriate to grant the defendant anonymity in connection with any report in the present interlocutory proceedings, which he had heard in chambers. The present case was not, however, an appropriate case for departing from the usual principles relating to hearings which were conducted, as in the Court of Appeal, in open court.

The events in issue in the present action had aready been in the public domain as a result of earlier hearings, and in those circumstances the considerations which had led Lord Woolf to indicate that in interlocutory proceedings it might sometimes be appropriate to afford a defendant anonymity until trial did not apply to the facts of the present case. The name of the defendant might therefore be mentioned in any report of the case.