Barrister sued in negligence test case Barrister sued in test case for negligence law

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The Independent Online

Home Affairs Correspondent

A man jailed for four years for a crime he says he did not commit is suing his barrister this week in a test case which could end the immunity of counsel from negligence claims.

Mohammed Patel, a former bank accountant, alleges he was wrongly convicted of tipping off a suspected drugs dealer because of a negligent defence mounted by his barrister, Ghulam Yazdani.

But in the case, which could have enormous implications for the profession, their ruling body, the Bar Council, and their insurers, lawyers for Mr Yazdani - who strongly denies the allegations - will seek to have the action thrown out.

The Bar Council maintains that public policy, set in stone by the House of Lords in 1967, dictates that barristers should remain free to speak out and present a robust court case without fear of being sued. It is also alleged that the case is an abuse of process and that Mr Patel is simply looking for another way to prove his innocence.

The hearing could open the way for a wave of similar actions. A second case involves a Scottish man who is bringing an action against his counsel who failed to win damages when he sued for the trauma he allegedly suffered as a witness to the Piper Alpha oil rig disaster.

The Patel case may go all the way to the Law Lords. Geoffrey Robertson QC, will argue that Mr Yazdani should be answerable for the conduct of the case.

It is claimed the barrister failed to challenge evidence of an admission which Mr Patel alleges was fabricated; that he saw Mr Patel without a solicitor, thereby denying him the benefit of solicitor's advice; and that he introduced inadmissible evidence.

Mr Patel was jailed at Snaresbrook Crown Court, east London, in 1987 under the extensive powers of the Drugs Trafficking Offences Act, which had been in force for only seven days. He was said to have tipped off a bank client that drugs squad officers were investigating his account.

The only evidence against Mr Patel, 38, was two statements he was said to have made to police during questioning. He served 28 months of the four-year term.

A father of three with his life in ruins, unable to find work as an accountant and facing the shame of a conviction in his community, he has fought to clear his name ever since.

His case is being examined by both the Police Complaints Authority and Michael Howard, the Home Secretary, who has been asked to refer it back to the Court of Appeal.

Jane Hickman, Mr Patel's solicitor, said yesterday that barristers should not enjoy a privilege denied virtually every other profession."Because barristers are immune from negligence cases, an assumption has grown that they are infallible. My experience, particularly in miscarriage of justice cases, is that they are not. It would be a jolly good thing if they are called to account, admit their mistakes and develop a clear set of standards and rules.

``With proper scrutiny, standards will start to improve as they have in other professions. For example, look at how consent forms for doctors have now evolved and the amount of care they must take before deciding to operate," she said.