This principle was first seriously challenged in the 1969 case of Rondel v Worsley14, where it was decided that: “.
.. the ancient immunity should be continued on considerations of public policy [which are] not immutable”15. In May 1959, Norbert Fred Rondel was convicted of causing grievous bodily harm (charges that he did not deny), and was sentenced to a term of 18 months imprisonment.His defence had been conducted by Michael Dominic Lawrence Worsley, a barrister, who had appeared to be asleep during part of the course of the trial. Some six years later in February 1965, Rondel sued Worsley, claiming damages for professional negligence; eventually the Court of Appeal16 decided that Worsley was immune from any action in respect of his conduct in court.However, the immunity in this particular case was not based on the usual barrister-client premise of the absence of a contract, but on public policy 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) actions for negligence against barristers would make the retrying of the original action inevitable and so prolong litigation and, (c) because a barrister was obliged to accept any client, however difficult, who sought his services.
Rondel v Worsley therefore set a precedent that applied to other cases that would follow. Eleven years later in 1980, Lord Wilberforce reconsidered the scope of a barrister’s immunity in the House of Lords during the complex case of Saif Ali v Sidney Mitchell ; Co. pointing out that: “… barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss”17.This theme was taken further still in the matter of Arthur J S Hall ; Co.
v Simons ; others18 in 2002, where the House of Lords re-evaluated public policy issues introduced as part of the Courts and Legal Services Act 199019 and the Access to Justice Act 199920. Statutory regulation had established the question of whether the immunity was needed to ensure that barristers would respect their duty to the court. In 1969, Rondel v Worsley had shown that the answer was that assertions of negligence would tend to erode this duty and accorded a special status to barristers21.By 2002, a comparison with other professionals demonstrated that a barrister’s immunity was anomalous, and that even allowing for a civil action it was unlikely to produce a flood of claims. Besides, the judges reasoned, even if some claims did emerge, a claimant alleging that poor advocacy resulted in an unfavourable outcome would face the very great difficulty of showing that a better standard of advocacy would have resulted in a more favourable outcome.Unmeritorious and vexatious claims against barristers are simply struck out.
Thus, it was no longer in the public interest that the immunity in favour of barristers should remain in either civil or criminal cases. This does not imply that Rondel v Worsley was wrongly decided; but in today’s world, that decision simply no longer correctly reflects public policy. The basis of the immunity of barristers has gone, and exactly the same reasoning is applied to solicitor advocates22. Following the ruling in Arthur J S Hall ; Co.
v Simons and others, a barrister can now be sued for negligent conduct of a case in court, and also for negligent preparation at the pre-trial stage as well.While this is most definitely a step in the right direction, there continues to be demands from outside the legal profession that it should be stripped of all powers of self-regulation23, that the profession share the burden of self-regulation with other professions24, or, that there should be other adjustments to the existing system25.No doubt with similar thoughts running through his mind, a worried Stephen Hocking QC, Chairman of the Bar 2006, addressing members of the Bar explained new figures which highlight the trend towards a massive rise in the numbers of barristers who are digressing from the Bar Council Code of Conduct: “..
. there are more than 14,000 practicing barristers in England and Wales, of whom over 11,500 practice from Chambers as self-employed advocates and specialist advisors26. “The number of barristers disbarred during the five years 1984-198827 was just fifteen28.Of these, five were disbarred for incompetence, six for criminal convictions (other than fraud), while the remaining four barristers were disbarred for ‘other reasons’29. However, the Bar Council Complaints Disciplinary Findings lists a total of twelve barristers who have already been disbarred this year” (up to and including 2 November 2006)30.
While these figures are never the less alarming, the number of disbarred barristers does actually compare somewhat favourably with those for solicitors struck-off during the same period: 18 in 1984, 22 in 1985, 20 in 1986, 32 in 1987 and 29 in 198831.That number has risen to 63 solicitors struck-off in 200632. Of course, it must always be borne in mind that there are significantly more solicitors practicing in England and Wales than barristers (126,142 Solicitors33 [of whom, 100,938 had a practising certificate] as opposed to just 14,000 barristers). Reasons given by The Law Society for solicitors being struck-off vary from ‘dishonestly misappropriating client’s money’, to ‘failure to discharge their professional duties honestly and reliably’34.Figures for Bar Council disciplinary hearings are only available as far back as 1999, when 469 complaints from the public against barristers were heard35. Figures remained comparable in 2000, and 2001 with 450 and 464 complaints respectively36.
Then in 2002, the number of complaints nearly doubled to 743, with only a slight drop to 685 in 2003, and 667 in 200437. There was another huge rise in 2005, to an all-time high of 877 complaints made against barristers38.This prompted Independent Complaints Commissioner, Michael Scott to address the matter in his 2005 Annual Report to the Bar Council, as: “…
reflecting barristers’ seemingly inadequate personal administration by failing to complete the required Continuing Professional Development hours, or to acquire a Practising Certificate. A 10% rise in lay complaints is unusual, compared with the plateau of previous years”39; he went on to point out that: “Of the responses received, only 16. 5% of sole practitioners had a formal written complaints procedure. There is evidence to suggest that consideration should be given to the development of a separate approach to complaints handling by sole practitioners”40.This would indicate an enormous increase in the number of barristers who are either: (a) operating outside the rules of the Code of Conduct or, (b) being discovered more frequently and brought before Bar Council disciplinary hearings.
Regardless of which is the more accurate representation, the truth of the matter is that over the last 20 years the number of barristers who have been exposed, interrogated and punished for divergences from the Bar Council Code of Conduct has shown a huge increase, while the numbers of practicing barristers has remained relatively constant during this period.What could possibly have been happening? Are large numbers of barristers and solicitors suddenly losing sight of their ethical duties? Or could it be perhaps that the careful balance between morals and principles on the one hand, and the temptations of the real world on the other have finally found some parity in the minds of those whom in the past we have always trusted to be beyond such inducements?