Advocates Liability For Negligence In Criminal Cases: The Fallouts

Professional 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 man’s control.[1]

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.[2] In the event of their failure to exercise reasonable skill and care, they can be sued for negligence.
This paper attempts to analyze the application of the above law to advocates and how the fallouts adversely affect the criminal administration of justice.
It 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.

The 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.

To set out this problem, recourse must be had to the judgment of Rondel v. Worsley.[3] 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.

Thus writ was dismissed by the House of Lords. In a well reasoned judgment while upholding the immunity of advocates for negligence, Lord Reid held:
“Suppose 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.”[4]

 This 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?

In the matter of Smith v. Linskill,[5] 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 competent jurisdiction;

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.

A 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.[6]

The position in England, however, has since been changed in its entirety by way of the judgment in Arthur J.S. Hall v. Simons,[7] 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 cases.”[8]

There 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:

Evidential Difficulties
On 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.

Invidious Judgments
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 Conflicting Judgments.

On 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. 
The 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.[9] 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.[10]

Also, 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.

It 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.[11]

The Indian Supreme Court, in the matter of M. Veerappa v. Evelyn Sequira,[12] 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.[13] 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 duties.”[14].

It is also relevant here to mention the judgment of Manjit Kaur v. Deol Bus Service Ltd.,[15] wherein reliance was placed on Veerappa’s case.[16] Justice S.S. Sodhi held:
Indeed, 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.[17]

There is a definite element of doubt in the above judgments when read in succession.

Further, in the matter of Srimathi v. Union of India,[18] 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.

It is evident that the law in not well settled on this issue. The solution proposed in Arthur J.S. Hall v. Simons[19] 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.

In 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 India.

References:
[1] Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651 para 22 at p 665 per S.C. Agrawal J
[2] Jackson and Powell on Professional Negligence, 3rd Edition para 1-04, 1-05 and 1-56
[3] [1967] 3 All ER 993
[4] ibid at p 1000
[5] [1996] 2 All ER 353
[6] Acton v. Graham Pearce & Co., [1997] 3 All ER 909 at p 925 per Chadwick J
[7] [2000] 3 All ER 673
[8] ibid at pg 685
[9] Gianarelli v. Wraith, [1988] 81 A.L.R., at p 556 per Mason CJ
[10] Arthur J.S. Hall v. Simons, [2000] 3 All ER 673 at p 716 per Lord Hope of Craighead
[11] ibid at p 744 per Lord Hobhouse
[12] (1988) 1 SCC 557
[13] ibid para 24 at p 571 per A.P. Sen J
[14] ibid
[15] AIR 1989 P&H 183
[16] (1988) 1 SCC 557
[17] AIR 1989 P&H 183 para 9-10 at p 185
[18] AIR 1996 Mad 427
[19] [2000] 3 All ER 973

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