liability for negligence is a cryptic branch of the law relating to negligence.
It exists on a fundamentally different plane. There is a fine distinction
between professions and other occupations for the reason that professionals
operate in spheres where success depends upon factors beyond the professional
The position has come to be established that the professional man owes to his
client a duty in tort as well as in contract to exercise reasonable care in
giving advice or performing services.
In the event of their failure to exercise reasonable skill and care, they can be
sued for negligence.
paper attempts to analyze the application of the above law to advocates and how
the fallouts adversely affect the criminal administration of justice.
is important, at the outset, to make a distinction between civil and criminal
proceedings. Even though the criminal process is formally adversarial, it is of
a fundamentally different character to the civil process. Its purpose and
function are different. It is to enforce criminal law. The criminal law and the
criminal justice system exist in favour of society as a whole. It has a direct
social function, and does not exist to serve any private interests. Public
policy considerations are significantly wider in criminal than in civil
proceedings. Despite the above dilemma, the scope, as regards civil cases,
remains limited to the litigating parties. In criminal proceedings, the
litigating parties are the state on the one hand and the accused on the other,
since an offence is a wrong against the State. The proceedings are conducted in
public under judicial control. It is concerned to see that the guilty are
convicted and those who are not proved guilty be acquitted. There is thus the
element of public interest which needs to be protected in a criminal trial.
Hence, a distinction is warranted.
Indian position on advocates’ liability for negligence is dictated by Section
5 of the Legal Practitioner’s (Fees) Act, 1925, which provides:
No legal practitioner who
has acted or has agreed to act shall, by reason only of being a legal
practitioner be exempted from liability to be sued in respect of any loss or
injury due to any negligence in the conduct of his professional duties.
While expounding the Indian
law on the subject, the Supreme Court has sought reliance on several English
judgments delivered by the House of Lords in England. It would be pertinent to
contemporaneously overview the English position on the subject while addressing
the problem in imposing the above liability on advocates under Indian law.
set out this problem, recourse must be had to the judgment of Rondel v.
In that case, Nobby Rondel was charged for causing grievous harm to one Manning.
He was not given legal aid, but after the case had proceeded for some time, he
was afforded the facility of a dock brief, and he chose a barrister by the name
of Worsley to represent him. The case eventually ended in a conviction,
confirmed by the Court of Appeal, and Rondel underwent a sentence. Nearly six
years later, he issued a writ against Worsley, claiming damages for alleged
professional negligence in the conduct of his duty.
writ was dismissed by the House of Lords. In a well reasoned judgment while
upholding the immunity of advocates for negligence, Lord Reid held:
that, as in the present case, a convicted man sues his counsel. To succeed, he
must show not only that his counsel was guilty of professional negligence, but
also that the negligence caused him great loss. The loss would be the fact that
he was wrongly convicted by reason of his counsel’s negligence… …the whole
case would in effect have to be retried in a civil court, where the standard of
proof is different.”
is the fallout that is sought to be addressed. Would it not bring the
administration of justice into disrepute to require a court of coordinate
jurisdiction to try the question whether another court reached a wrong decision
and, if so, to inquire into the causes of doing so?
the matter of Smith v. Linskill,
the House of Lords addressed the issue again, and provided three grounds for
upholding the immunity:
The affront to any coherent system which will necessarily arise if there
be allowed to subsist two final but inconsistent decisions of courts of
The virtual impossibility of fairly retrying at a later date the issue
which was before the court on an earlier occasion; and
The importance of finality in litigation.
conviction reached after applying to the facts the criminal standard of proof
beyond reasonable doubt is necessarily inconsistent with an allegation that,
applying to the same facts the balance of probabilities, the convicted person as
a plaintiff ought to succeed. The court hearing the civil proceedings has to
decide, on a balance of probabilities, whether a judge, properly directed, would
have been satisfied to the standard required in criminal cases of the guilt of
the plaintiff after trial, which necessarily would have taken a different course
from the trial which actually did take place. That task may indeed be
characterized as virtually impossible.
position in England, however, has since been changed in its entirety by way of
the judgment in Arthur J.S. Hall v. Simons,
wherein Lord Steyn specifically held:
…the cards are now heavily stacked against the maintaining of the immunity of
advocates… …there is no longer any such immunity in criminal and civil
are several grounds of challenge that were faced those delivering the majority
judgment in the above matter. The judgment of Lord Hoffmann has dealt
with the issues under the following separate heads:
the issue of the virtual impossibility of fairly retrying at a later date the
issue that was before the court on an earlier occasion, Lord Hoffmann reasoned
that in principle, evidential difficulties have never been regarded as a reason
for declining jurisdiction. The plaintiff has to prove that the lawyer’s
negligence caused him loss. The burden of proof is on him. His case may have
become so weak with the passage of time that it may be struck, but that itself
is no reason for giving lawyer’s immunity from suit.
On the issue of the
impracticality of deciding how a judge would have reacted if the advocate has
advanced a different argument or called different evidence, Lord Hoffmann put
forth that the argument was imaginary, since it must be presumed that the judge
would have behaved rationally and judicially
the issue of relitigation by collateral means, Lord Hoffmann held that not all
relitigation of the same issue would be manifestly unfair to the party or bring
the administration of parties into disrepute, and secondly, that when
relitigation, for one or the other reason is an abuse, the court has the power
to strike it down.
absence of immunity of advocates for negligence in criminal cases also may
affect the behaviour of lawyers adversely. An advocate’s duty to the court
epitomizes the fact that the course of litigation depends on the exercise by the
counsel of an independent discretion or judgment in the conduct and management
of a case.
If advocates in criminal cases were to be exposed to the risk of being held
liable for negligence, the existence of that risk would influence the exercise
of their independent judgment in order to avoid the possibility of being sued.
The temptation, in order to avoid the possibility, would be to pursue every
conceivable point, good or bad, in examination, to ensure that no argument was
left untouched and no stone was left uncovered. The exercise of independent
judgment would be subordinated to the instincts of the of the litigant in person
who insists on pursuing every question without any regard to the interests of
the court and to the interests of the administration of justice generally.
the absence of such immunity may give rise to a large number of vexatious
claims, attempting, in a wholly unbalanced manner, to re-open, without
justification a case which a party lost and which, by brooding over it, can no
longer see it in an objective light. Disgruntled by a decision, it reflects on
various side issues of which it considers that the judge failed to take any
account or any sufficient account.
is also pertinent to note that if the defence advocate is to be exposed to a
civil liability in respect of his discharge of his public duty and the role will
be unique among all the participants. All the others- the public prosecutor, the
judge and the witness- are in public interest immune. The same logic applies to
the defence advocate whose role derived from the public interest as that of the
other participants. If he alone is to be subjected to civil liability, he will
be unable to obtain a contribution from any other participant, although they may
be equally blameworthy for what went wrong.
Indian Supreme Court, in the matter of M. Veerappa v. Evelyn
has held that a legal practitioner cannot claim exemption from liability in
respect of any loss of injury suffered by the client due to any negligence in
the conduct of his professional duties merely be reason of being a legal
practitioner. But whether or not this
is to be considered to be the established position is shrouded with ambiguity in
light of the following words of the court:
…we are not expressing any opinion on the matter except to point out that
there is a specific provision in the Legal Practitioner’s (Fees) Act, 1926
setting out the legal practitioners would also be liable for being sued by their
clients if they had been negligent in the performance of their professional
is also relevant here to mention the judgment of Manjit Kaur v. Deol
Bus Service Ltd., wherein reliance was
placed on Veerappa’s case.
Justice S.S. Sodhi held:
there is a duty of care that a counsel owes to his party which clearly extends
to ensuring that the interests of his party are not in any manner hurt by his
doing of what is required to be done or omitting to do what is required to and
necessary in the discharge of his duty as a counsel… …The law is thus well
settled that if a counsel, by his acts or omission, causes the interest of the
party engaging him, in any legal proceedings to be prejudicially affected, he
does so at his peril.
is a definite element of doubt in the above judgments when read in succession.
in the matter of Srimathi v. Union of India,
the services performed by advocates were held to be services within the ambit of
Section 2(1)(o) of the Consumer Protection Act, 1986, and it was laid down that
it is open for aggrieved clients to institute proceedings against the advocates
in the Consumer Redressal Forum. This would include actions for negligence. But
this too, does not resolve the crisis of relitigation, giving rise to
conflicting judgments by courts of competent jurisdiction.
is evident that the law in not well settled on this issue. The solution proposed
in Arthur J.S. Hall v. Simons
was that such actions for negligence must be allowed once the Criminal Cases
Review Commission has set the conviction aside. In India, this would mean
setting aside the conviction on appeal to the High Court or the Supreme Court.
However, there may be occasions when a conviction is quashed on appeal, but no
valid grounds may exist for alleging that the conduct of the defence counsel
amounted to negligence. If an error has been made in the course of the trial, it
may have been made in the course of the trial, it may have been made by the
trial judge in his ruling on the point of law admissibility of evidence or his
summing up of the matter. All the other participants in a criminal trial are
immune from actions for negligence. In such circumstances, it would be abusive
of public policy to vex the advocate for suit for negligence in such a manner.
light of the above, the issue stands thus: Should Section 5 of the Legal
Practitioner’s (Fees) Act, 1926 be read down so as to exclude the liability of
advocates for negligence in criminal cases? Do the advantages outweigh the
disadvantages so as to justify the preservation of Section 5 in its original
form? On the ground of fundamental rights, it can be argued that allowing of
such immunity may be violative of the fundamental right of the people to
approach the courts for the determination of their rights. But in direct
conflict to this would be the adverse effect on the proficiency of lawyers
acting under a constant threat of damages, making their duty to the court
subservient to their duty to the client and mitigating the public confidence in
the criminal administration of justice. This would again be unacceptable. The
issue must now be dealt with exhaustively and conclusively, so as to ensure that
it does result in a lacuna in the law relating to the professional negligence in
Indian Medical Association v. V.P. Shantha,
(1995) 6 SCC 651 para 22 at p 665 per S.C. Agrawal J
Jackson and Powell on Professional Negligence, 3rd Edition
para 1-04, 1-05 and 1-56
 3 All ER 993
ibid at p 1000
 2 All ER 353
Acton v. Graham Pearce & Co.,  3 All
ER 909 at p 925 per Chadwick J
 3 All ER 673
ibid at pg 685
Gianarelli v. Wraith,  81 A.L.R., at p 556
per Mason CJ
Arthur J.S. Hall v. Simons,  3 All ER 673
at p 716 per Lord Hope of Craighead
ibid at p 744 per Lord Hobhouse
(1988) 1 SCC 557
ibid para 24 at p 571 per A.P. Sen J
AIR 1989 P&H 183
(1988) 1 SCC 557
AIR 1989 P&H 183 para 9-10 at p 185
AIR 1996 Mad 427
 3 All ER 973