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Professional Negligence and Liability

Chapter 15


Authored by ALICE NASH


1. The scope of this chapter

15.1 When compared with the volume of claims against other professionals, claims against barristers remain relatively rare. Historically, this was because until the landmark decision of the House of Lords in Hall v. Simons 1 barristers were immune from suit for acts and omissions in court and “intimately connected” with the conduct of the case in court.2 More recently, the relatively small size of the profession, the continuing applicability of the rule against collateral attack where there is a subsisting criminal conviction3 and the fact that much of what barristers do involves an exercise of judgment4 are all factors likely to have contributed to the absence of claims. Whatever the reason, many areas of the law relating to barristers’ negligence are accordingly comparatively under-developed.5 Where there is little or no case law relating directly to barristers the cases on solicitors are likely to provide the best guidance as to the applicable law. Thus where the principles relating to solicitors and barristers are the same they are in general dealt with in Chapter 9. The exceptions are negligent advocacy and the rule against abusive collateral attack, which are dealt with in this chapter.6

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