Defensive Advising Strategies For Legal Professionals (Video)

• Published date: 18 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Professional Negligence, Libel & Defamation
• Law Firm: Wilberforce Chambers
• Author: Ms Emily Campbell

self

Over a series of short articles, I intend to examine ways in which legal advisers in the field of trusts and tax can methodically minimise risk in the way that they advise. This first piece examines how we have got to where we are.

The solicitors profession has longer experience of professional negligence actions against it than the Bar. The liability of a solicitor was established beyond doubt by the time of the decision in Nocton v Lord Ashburton in 1914¹. By contrast, the liability of the Bar was established relatively late. Perhaps the earliest instance of an action against a barrister is the 1792 case of Fell v Brown². It was an action for negligent pleading, and it failed on a point of principle, Lord Kenyon commenting that "he believed this action was the first, and hoped it would be the last, of the kind". In subsequent decisions, reliance was placed on a decision of 1860³, so that a barrister was immune from action even for paperwork until 1967⁴, when the immunity was limited to court work, being wholly abolished only in 2002.

This background may have informed the Bar's traditional style of advising, which was often confident and cryptic. Two anecdotes illustrate the point. The first relates to the late William OAJ Danckwerts KC (father of well-known judge). Of him, JD Casswell recalled⁵:

"It was [in a solicitor's office in Essex Street] that I first learnt the value to a barrister of a clear, logical mind going immediately to the kernel of a problem and ignoring all extraneous matters: I had drafted long, detailed instructions for an opinion by [him], on an intricate local government law case and I waited anxiously to receive the document which stated his considered views. I was somewhat disconcerted on the return of the papers to find that his opinion was as follows:

(1) No

(2) No

D".

The second relates to FE Smith (later the Earl of Birkenhead LC). As recorded in FE Smith, First Earl of Birkenhead⁶, Smith was called to the Savoy hotel in London on urgent legal business, where he encountered a stack of papers nearly four feet high. He was required to advise by nine o'clock the following morning. He ordered a bottle of champagne and two dozen oysters, working all night. The following morning he gave his opinion (correctly, as it...