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Negligent Legal Advice: Can a Solicitor Rely on Counsel?
Thu, 17/11/2011 - 19:44 — Pro Neg
Emma Slade reviews the relationship between solicitor and barrister in the context of professional negligence
Explaining the difference between a solicitor and barrister is not easy. Most people liken it to the distinction between a GP and a Consultant. In this sense, a solicitor is similar to a GP dealing with a general practice whilst the barrister, like a Consultant, tends to specialise in an area and have more specific expertise. It is for this reason that solicitors will usually advise you to get an Opinion from a barrister at some point during any litigation.
But whilst a second opinion from counsel can be extremely helpful, it sometimes throws up a completely different view of the case and one which even your solicitor was not expecting. If this happens, is your solicitor negligent for simply accepting it?
The question was considered in the 1991 case of Locke –v- Camberwell Health Authority. In this case, Ms Locke brought proceedings against the Defendant for causing a disability in her right arm following a failed surgical attempt to rectify her angina problems. However, her barrister felt that her case had little prospect of success and was told to discontinue the negligence claim. The Court considered the duties of a solicitor in those circumstances and came up with three rules which were re-affirmed in the 1994 case of Ridehalgh –v- Horsefield.
- provided a barrister is properly instructed, a solicitor can rely on Counsels Advice
- if the solicitor does not have specialist experience in a particular field, then again, it is reasonable to rely on the advice
- however, if after seeing the advice, a reasonably competent solicitor would feel that it must be “obviously wrong”, then he cannot blindly rely on the advice but must exercise his independent judgment and reject it.
It is rare to find an Advice that is “obviously wrong”. Usually the opinions differ as Counsel has noticed something about the case which changes the prospects of success but either way, the solicitor does need to make sure he is satisfied with the final Advice.