BL-2025-000402 - [2025] EWHC 2974 (Ch)

In Saif Ali v Sydney Mitchell & Co [1980] A.C. 198, the House of Lords restricted a barrister’s immunity from suit for negligence to the conduct of a court hearing and work intimately relating to it. Subject to that immunity, barristers owe the same duty to their client to take reasonable skill and care as other professionals. Lord Diplock expressed the test at 218:

“Those who hold themselves out as qualified to practise [in a profession], although they are not liable for damage caused by what in the event turns out to have been an error of judgment on some matter upon which the opinions of reasonably informed and competent members of the profession might have differed, are nevertheless liable for damage caused by their advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do.”

Lord Diplock further stated at 220-221:

“No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. … The kind of judgment which a barrister has to exercise in advising a client as to who should be made defendant to a proposed action and how the claim against him should be pleaded, if made with opportunity for reflection, does not seem to me to differ in any relevant respect from the kind of judgment which has to be made in other fields of human activity, in which prognosis by professional advisers plays a part. If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence against him will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take.”

A test which imposes legal liability on a professional only if the person does that which no reasonably competent member of the relevant profession or part of the profession would have done in the same situation is a test which sets a high threshold.

It is clearly not sufficient that the impugned decision can be shown to be an error. Lord Wilberforce in Saif Ali said at 214:

“Much if not most of a barrister's work involves exercise of judgment—it is in the realm of art not science. Indeed the solicitor normally goes to counsel precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment, which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is very unlikely to succeed.”

Lord Salmon said at 231:

“I am far from saying that if the advice or document turns out to be wrong, it necessarily follows that he who gave or drew it is liable for the loss caused by its imperfection. The barrister is under no duty to be right; he is only under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balanced problems. Diametrically opposite views may and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent.”

It is clearly not sufficient that another reasonably competent barrister might have done something differently; see Matrix Securities Ltd v Theodore Goddard [1998] P.N.L.R. 290 at 321.

Lord Diplock’s reference to a “blatant” error is therefore sometimes used as a shorthand to describe this high threshold – i.e. that the error is one which no reasonably competent barrister of similar seniority and purported experience would have made; see Sullivan LJ, giving the approved judgment of the Court of Appeal in Pritchard Joyce & Hinds (a firm) v Batcup [2009] EWCA Civ 369, [2009] P.N.L.R 28 at [97].

A decision on whether a point should or should not be pleaded is an exercise of judgment. There is no requirement that a pleader pleads every point that can be pleaded or runs every argument that can be run. A judgment has to be made as to the best way to present the case. That is part of the art of pleading. In McFarlane v Wilkinson [1997] P.N.L.R. 578, the Court of Appeal struck out a claim that a barrister had negligently failed to plead a point. In rejecting a submission that a barrister had an obligation to plead any properly arguable point which had a prospect of success Brooke LJ observed at 604:

“The exercise of judgment is an exercise in which demands are made on a barrister’s intellect, erudition, practical experience and, often, intuition. Very often indeed the decision whether a point should be pleaded draws on all four of these qualities...”

As that case makes clear, in a case where a barrister is accused of professional negligence for failure to plead a point, the question is simply whether no other reasonably competent barrister would have failed to plead that point. Brooke LJ (with whom Hutchison LJ and Saville LJ agreed) said at 601:

“It follows from this that if a barrister omits to plead a cause of action in a situation where no other reasonably competent barrister, acting with ordinary care, would have failed to plead that cause of action, then he or she will be liable to compensate the client if loss flows foreseeably from that negligence. If on the other hand other reasonably competent barristers holding themselves out as competent to practise in the relevant field and acting with ordinary care might also have decided not to plead that cause of action, then there will be no question of professional negligence.”

Where no complaint is made about the advice given by counsel which precedes the act said to be negligent, and upon which the allegedly negligent act is obviously predicated, it is very difficult to see how the impugned act can possibly be negligent: Moy v Pettman Smith (a firm) [2005] UKHL 7, [2005] 1 W.L.R. 581, per Lord Hope at [21]; Lord Carswell at [58] – [59]. The other members of the House agreed with Lord Hope and Lord Carswell.

Finally, the tribunal assessing whether any error that has been identified is negligent will be astute to ensure that it holds counsel to the standard of reasonable competence and not a higher standard. Baroness Hale observed in Moy at [26], that the court usually assumes that it can rely on its own knowledge and experience of advocacy to make the judgment whether a barrister’s conduct has fallen short of the standard; and that this assumption brings with it “an obvious risk that a judge will ask himself what he would have done in the particular circumstances of the case. But that is not the test”.

Sedley LJ in Batcup at [103] gave the following helpful guidance:

“Secondly, in a system which populates its senior bench from the practising profession, an outside observer might discern equal and opposite risks of excessively sympathetic and excessively critical appraisals of the conduct of legal practitioners. In holding, as this court does, that Underhill J has erred in the latter of these directions, we ought also to recognise his desire to maintain a high standard of professional trustworthiness. The law does not, however, demand either omniscience or infallibility in lawyers any more than it does in doctors or architects. The law’s standard of reasonable competence means not only that there will be errors which are not compensable but that legal advisers are not expected to divine every claim that a client may theoretically have.”