Solicitors negligence in law of torts

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  • 1. Solicitor’s Negligence In Law Of Torts By- Tuhin Batra
  • 2. What Is Solicitor’s Negligence?
    • A solicitor is liable for the consequences of ignorance or non observance of the rules of practice of the court for the want care in the preparation of the cause of the trial.
  • 3. Position In England
    • In England there is a distinction between a barrister and other professionals. A barrister cannot be sued by a client for breach of duty because his services are deemed to be gratuitous.
    • But a solicitor is liable for the consequences of ignorance or non observance of the rules of practice of the court for the want care in the preparation of the cause of the trial.
  • 4.
    • In Godefroy v. Jay, (1831) it was held that a solicitor is liable if his client proves his negligence by allowing the claim to be barred by limitation.
    • Negligence of solicitor’s agent or partner.
    • In Ross v. counters , the solicitor’s negligence in not noticing the mistake in attestation of a will which he was engaged to draw by the testator, resulted in depriving the plaintiff of her legacy on the testator’s deathand a suit for claiming damages in negligence for the loss of the bequest under the will, solicitors were held liable.
  • 5. Liability towards Third Party
    • Hedley Byrne & Co Ltd v Heller & Partners Ltd and Donoghue v Stevenson [1932] AC 562, a solicitor who is instructed by a client to carry out a transaction that will confer a benefit on an unidentified third party owes a duty of care towards the third party in carrying out that transaction, in that the third party is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omissions that he can reasonably foresee that the third party is likely to be injured by those acts or omissions.
  • 6.
    • Ross v. Caunters [1970] 3 AER 580, holds that lawyers can owe a duty of care both to their clients and to third parties who suffer loss or damage. In that case, the solicitors failed to prevent a beneficiary from attesting the will. They admitted negligence but denied that they were liable to the claimant, contending (i) that a solicitor was liable only to his client and then only in contract and not in tort and could not, therefore, be liable in tort to a third party, (ii) that for reasons of policy, a solicitor ought not to be liable in negligence to anyone except his client, and (iii) that in any event, the Plaintiff had no cause of action in negligence because the damage suffered was purely financial.
  • 7. Position In India
    • In india a legal practitioner is both a counsel and a solicitor. Any act done by him
    • The matter is governed by Legal Practitioners (Fees) Act, 1926.
    • Preamble of the Act reads,
      • “ An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties.”
  • 8.
    • Section 5- “No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.”
  • 9.
    • A legal practitioner in India does not enjoy all the privileges of an English barrister and is not subject to all liabilities of a solicitor.
    • There is nothing in Indian law which can give a solicitor same privileges as barrister enjoying in England.