He didn’t perform in court – Can I sue a barrister or expert witness?

Emma Slade, a solicitor specialising in Professional Negligence cases considers whether a claim can be brought against a judge, barrister, expert or witness for professional negligence in a Court trial.

It would be pleasant to think that a Court trial can turn on a single point, a sabre-cutting comment by the barrister, a perspicacious observation by the expert, incontrovertible evidence from an independent witness, even – dare I say it – that justice shines through. Sadly, life is not like a Perry Mason film. The outcome of most trials arises from a combination of factors that when put together, present the most compelling case.

If therefore, you have invested your heart and soul in a case, it can be utterly soul destroying to lose. In many instances, the losing party looks to see if there was something that could have been done better to bring about a different verdict; and very often the finger gets pointed at the barrister. Occasionally an expert or a witness will be criticised. But can you sue any of these people?

Firstly, let me make it clear; you cannot sue the judge. It is a point of policy that the judge must be considered independent and free from potential suit if he is to give an unbiased and impartial judgment. Your only recourse is to appeal.

The same goes for witnesses. It has long been considered that a witness owes their duty to the court, not a single party. Further, it has been the long held view that if a witness thinks there is a possibility of being sued, they will not come forward to provide evidence, thereby bringing the system to a grinding halt. Witnesses are therefore immune from suit.

The same used to be said of barristers and experts as they are in a potentially unique position: they owe a duty to the court and a duty to their client. If they are concerned that they could be sued by a disgruntled client, this might erode away their primary duty which is to the court.

Since 2000 though, this position has changed. Beforehand, there was a total immunity from suit for barristers and experts in respect of their performance in court. Barristers could be sued for advice given outside the court arena but not for their advocacy skills. This changed. The relevant cases are Arthur J S Hall & Co –v- Simons [2000] 3 WLR 543 HL for barristers and Jones v Kaney [2011] UKSC 13 for experts. There is no need to go into the details of these cases but it is clear from the judgments in both that the House of Lords and Supreme Court respectively felt that there were sufficient other legal principles and powers of the court, that there was no need for barristers and experts to hide behind such an archaic legal fiction as a total immunity from suit.

But before you get out the bunting and set off the fireworks, bringing a successful claim for negligence against a barrister (and I will confine the remainder of this article to a barrister though the principles similarly apply to an expert) is not as easy as it may sound. You still have to overcome the three tenets of professional negligence: that the barrister owed you a duty of care, that the duty of care was breached and that it caused you to suffer a loss.

If the barrister/expert in question is instructed by you, then there will probably not be any difficulty in establishing duty of care, but going on to show breach of duty of care is not as easy as it sounds. The measure is whether or not a similarly qualified and experienced barrister would have acted in the same or similar way in identical circumstances. With things such as advocacy though, there isn’t a simple, black-or-white approach to presenting the case. Each advocate will present the case in a different way. It was specifically stated in the case of Abraham –v- Jutsun (1963) 2 All ER 402 that, whilst it would be entirely unreasonable to consider that all arguments put forward by Counsel would be accepted by the Court, that does not mean it is negligent not to put them forward. Indeed, the court considered that it was the barristers’ duty:

“… to take any point which he believed to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court.”

So, just because the barrister has made a point which the court rejects does not mean that it was negligent to do so. It is only if no other reasonably competent barrister would have made such a point.

But even if you can overcome that hurdle – and it is an extraordinarily high hurdle to jump – you then have the next problem to overcome: causation.

If you are coming to me to see whether you have a case, it is invariably because you believe you have suffered a loss as a result of the action; but you have to prove that the actions of the barrister caused you to suffer a loss.

As I said at the beginning of this article, it would be wonderful if cases were so cut and dried that it was the acerbic wit, shrewdness and cutting-edge cross examination of your Counsel that wins – or loses – the day, but it rarely is. It is a combination of factors. And if you want to bring a successful claim against your barrister for poor performance, you have to show that his failure was the single most likely cause of your loss.

Let me give you an example of ‘causation’ in the case of Wilsher –v- Essex Health Authority (1988) 1 All ER 871. In that case, a premature baby was negligently administered excessive oxygen during post-natal care. The baby subsequently became blind. Medical evidence suggested that the administration of such large doses of oxygen could be one of a number of factors causing the blindness. Initially, the Court of Appeal was willing to say that the application of oxygen caused a “material increase in risk” of blindness and so awarded damages, but this was overturned by the House of Lords. It is worth quoting the relevant part of the speech as it sums it up well:

“where a plaintiff’s injury was attributable to a number of possible causes, one of which was the defendant’s negligence, the combination of the defendant’s breach of duty and the plaintiff’s injury did not give rise to a presumption that the defendant had caused the injury. Instead the burden remained on the plaintiff to proof the causative link between defendant’s negligence and his injury…”

There were any number of factors that could have caused the blindness, just as there will be any number of factors that will lead a judge to his conclusion. Connecting the loss to the performance of your advocate is going to be exceptionally difficult. Not impossible, but exceptionally difficult.

There is one other area that I should touch upon. I get many, many calls from clients who have suffered a criminal conviction which they attribute to the poor performance of their barrister. I have also had many calls from Clients saying that they were “told” to plead guilty when they were innocent of the crime.

Let me deal with the second point first. Sorry, it won’t wash. Firstly, legal counsel do not “tell” a client what to do but “advise”, They give them the pros and cons of a course of action and the client decides. Secondly, it has long been considered that, barring mental incapacity, an individual is responsible for their own actions. If a Client pleads guilty, then it is assumed that they have considered the matter for themselves and concluded that that is the appropriate way forward for them. Counsel is not responsible.

Now for the first part – being found guilty of a crime of which they are innocent.

Unless the conviction has been overturned, it is going to be almost impossible to bring a negligence claim against the barrister. Although an old case, Somasundaram –v- M Julius Melchior & Co (1989) 1 All ER 129 is still sound law. In this instance, the Claimant was charged and subsequently convicted of causing grievous bodily harm to his wife, with intent to cause hurt. In the civil courts, he tried to bring a claim for negligence against his solicitor who had been representing him in the criminal trial. C claimed that D had failed to put forward issues of mitigation on his behalf and further, he had been persuaded to change his plea to guilty. The Court of Appeal struck his claim out on the grounds that it involved an attack on the conviction of the Crown Court. Why was that?

To prove a case in the Crown Court, it has to be proven “beyond reasonable doubt”; in a Civil Court, it has to be “on the balance of probabilities”. It is clumsy to do so, but put in percentage terms, to get a conviction, a criminal court needs to be 75% satisfied that the crime took place. In a civil case, the court needs to be 51% satisfied that something occurred. By saying that a barrister conducting a criminal claim is negligent, you are asking a Civil Court to say that the original conviction was unsound and given the burden of proof required in a criminal court, it cannot do so. Unless therefore the criminal conviction is overturned, you are unlikely to be successful in a professional negligence claim.

If you feel you do have a claim against a barrister or expert witness, then call us today for a free assessment of your case.

Call us on 0808 139 1595.

Alternatively, you can contact us by e-mail at [email protected]

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