KSL ATP PE

PROFESSIONAL NEGLIGENCE
CHARLES B G OUMA & EUNICE ARUWA
ADJUNCT FACULTY KSL ATP 2013

Topic Content
1.
2.
3.
4.
5.
6.
7.
8.
9.

Definition
Requirements
Constitutional basis
Source of the obligation
Standard of care
Mistake
The case for Immunity
The case against immunity
Professional Indemnity

Statutory provisions
Section 46 invalid agreements
Advocates
(Professional
Regulations 2004
Consumer protection Act
Article 46 CoK 2010

indemnity)

Case Law
1.
2.
3.
4.
5.
6.
7.
8.

Heaven v Pender (1883) 11 QBD 503

Derry v Peek (1889) LR 14 App Cas 337
Nocton v Lord Ashburton [1914] AC 932
Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465
Henderson v Merrett Syndicates Ltd [1994] 2 AC
145
Mbogo V Shah (1967)EA 116
White v Jones [1995] 2 AC 207
Trust bank V Portway Stores (1997)LLR 1197(CCK)

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Case Law
1.
2.
3.
4.
5.
6.
7.
8.
9.

Munster v Lamb. said ([188185] All ER Rep

Fletcher & Son -v- Jubb, Booth & Helliwel [1920] 1 KB 275
Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484 1939 HL
Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2 QB 259;
[1968] 1 All ER 543 1968 CA
Rondel vs Worsely 1969 HL)
Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
Arthur J.S Hall and Co. v Simons (2000) 3 AER 673
Giannrelli v Wraith (1988) 165 CLR 543
Kettlemen vs. Hansal Properties Ltd 1988 1 ALLER 38

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Case Law
Air Alfaraj Ltd VS Raytheon Aircraft Credit
Corporation & anor 2000 KLR 315
Champion Auto Spares vs Phadke & ors 1969 EA 42
East African Foundry Works (K) Ltd vs. KCB 2002 (2)
KLR 443
Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
Kogo vs Nyamogo & Nyamogo CA CA 53 OF 2003
2003 EKLR

Flavio Rodriguez vs Apollo Insurance Co Ltd

Part 1
Definition

Definition
Negligence may be defined as an act or
omission which constitutes a breach of a duty
of care owed to another person by the person
who acts or fails to act and which causes that
other person to suffer harm.

Definitions
There are three elements which the client
(plaintiff) must establish if he wants to
succeed.
that there was a duty of care owed by an
Advocate.
that there was a breach of that duty by an
Advocate (the defendant).
that the breach of the Advocate's duty caused
loss or damage to the client.

Definition
In the English law of tort, professional
negligence is a subset of the general rules on
negligence to cover the situation in which the
defendant has represented him or herself as
having more than average skills and abilities
From Wikipedia

Part 2
Requirements

Requirements
1.
2.
3.
4.

Duty of care situation

Foreseability
Proof that defendants conduct was careless
Causal connection between defendants
carelessness and damage
5. Extent of damage attributable to defendant
6. Monetary estimate of that damage

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Part 3
Constitutional Basis

Constitutional Basis
Consumer protection- Article 46 of the
Constitution
State to ensure access to justice- Article 48
Right of accused persons to choose their
advocates-Article 50 (g)
State to appoint advocate for accused if
substantial justice would occur otherwiseArticle 50 (h)

Part 3
Source of the obligation

Source of the obligation

1. Duties in contract- the client is purchasing legal
services, its a consumer protection issue. The
advocate warrants that he possesses the
competence to offer the services
2. Duties in tort- the law has placed the client in the
hands of the lawyer and the client is totally
dependent on the expertise of the lawyer

Source of the obligation

Duties of a fiduciary- an element of tort. A
fiduciary is depended on by another.
Statutory obligation- eg Advocate practice
rules provide minimum service standards

Part 3 : Section 1

Liability in Tort

Hedley Byrne & Co Ltd v Heller & Partners

Ltd (1964) AC 465
Where a person is so placed that others could
reasonably rely upon his judgment or his skill or
upon his ability to make careful inquiry, and a person
takes it upon himself to give information or advice to,
or allows his information or advice to be passed on
to, another person who, as he knows or should know,
will place reliance upon it, then a duty of care will
arise."

Caparo Industries plc. v Dickman

(1990) 2 AC 605
The criteria for a duty of care in giving advice
were stated in more restricted terms "What
can be deduced from the Hedley Byrne case,
therefore, is that the necessary relationship
between the maker of a statement or giver of
advice (the adviser) and the recipient who
acts in reliance on it (the advisee) may
typically be held to exist where four conditions
exist

Caparo:Condition 1 and 2
The advice is required for a purpose, whether
particularly specified or generally described, which is
made known, either actually or inferentially, to the
adviser at the time when the advice is given
the adviser knows, either actually or inferentially,
that his advice will be communicated to the advisee,
either specifically or as a member of an ascertainable
class, in order that it should be used by the advisee
for that purpose

Caparo: Condition 3 and 4

It is known, either actually or inferentially, that
the advice so communicated is likely to be
acted on by the advisee for that purpose
without independent inquiry and
It is so acted on by the advisee to his
detriment.

White v Jones [1995] 2 AC 207

In this case, which was only carried by a 3:2
majority, a solicitor was told to draw up a
new will, splitting the testator's estate
between the two plaintiffs, his daughters. He
negligently failed to do this by the time of the
testator's death, and the estate passed in
accordance with the testator's wishes
expressed in a previous will.

White v Jones [1995] 2 AC 207

The daughters sued the solicitor in
negligence. It was held that the solicitor had
assumed a special relationship towards them,
creating a duty of care which he had carried
out negligently, and therefore had to
indemnify them for their loss. Once again this
extended Hedley Byrne liability to a
proximate third party.

Part 3: Section 2
Liability in Contract

Contractual liability
In principle, the tortious liability runs in parallel to
liability in contract. Subject to the rules of privity of
contract, one who has entered into a contract can
sue or be sued on the contract which will set out the
terms of the service to be provided by the
professional person, and if there is no express term
to this effect, there will be an implied term that the
service will be performed with reasonable care and
skill

Henderson v Merrett Syndicates Ltd

[1994] 2 AC 145
This case concerned the near collapse of
Lloyd's of London when hurricanes in
America devastated its property holdings. It
called upon its "Names" (the shareholders) to
indemnify them for its losses.
The Names sued the shareholding company
for mismanagement and negligence

Henderson v Merrett Syndicates Ltd

[1994] 2 AC 145
It was held that Merrett Syndicates was liable to
both types of shareholders, as there was enough
foreseeability to extend pure economic loss
liability to "un-proximate" third parties.
The major significance here was, however, the
allowance of claims in both contract and tort,
which blurred the divide between the two.
Some of the first party Names claimed in
contract to overcome the three-year limit in
which an action must be taken in tort.

Part 3 Section 3
Liability to proximate
third parties

White v Jones [1995] 2 AC 207

In this case, which was only carried by a 3:2
majority, a solicitor was told to draw up a
new will, splitting the testator's estate
between the two plaintiffs, his daughters. He
negligently failed to do this by the time of the
testator's death, and the estate passed in
accordance with the testator's wishes
expressed in a previous will.

White v Jones [1995] 2 AC 207

The daughters sued the solicitor in
negligence. It was held that the solicitor had
assumed a special relationship towards them,
creating a duty of care which he had carried
out negligently, and therefore had to
indemnify them for their loss. Once again this
extended Hedley Byrne liability to a
proximate third party.

Prospective vs. Actual client

Togstad v. Vesely, Otto, Miller & Keefe, 291
NW 2d 686 - Minn: Supreme
The duties to a prospective client are no less
than the duties to an actual client

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Part 3: Section 4

Liability of a fiduciary

Nocton v Lord Ashburton [1914] AC

932
Lord Ashburton was buying a property for
60,000 on Church Street, Kensington, London.
His solicitor was Mr. Nocton. Mr. Nocton
advised Lord Ashburton to release part of the
mortgage security.
This was a bad idea, because as Mr. Nocton in
fact knew, this meant that the security would
become insufficient.
Lord Ashburton alleged the advice was not given
in good faith, but rather in Mr. Nocton's self
interest.

Hendry vs Pelland US Court of Appeal for

the DC 1996
An action for a breach of a fiduciary duty should be a
more frightening proposition to an advocate than a
typical malpractice action which require proof of
harm Recognizing this barrier to legal malpractice
claims, more and more plaintiffs are pursuing claims
for breach of a lawyers fiduciary duties along with,
or instead of, legal malpractice claims. A breach of
fiduciary duty claim carries a distinct advantage for a
plaintiff: Often, the plaintiff need not show that the
breach of duty harmed him in any way

Part 3 Section 5
A statutory obligation

Section 46(b) Illegal Agreements

S 46 (b) any agreement relieving any advocate
from responsibility for professional negligence
or any other responsibility to which he would
otherwise be subject as an advocate; or

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The Advocates Act

S46 of the advocates act outlaws agreements
absolving advocates from liability for negligence. By
necessary implication the statute presupposes the
existence of a duty not to be negligent
Advocates (Professional indemnity) Regulations
2004 require advocates to take out mandatory
professional indemnity insurance cover. The object of
this requirement is to guarantee clients protection
against negligent conduct by advocates

Part 4

The Standard of Care

Fletcher & Son -v- Jubb, Booth & Helliwel

[1920] 1 KB 275
Scrutton LJ said: "it would be extremely difficult to define
the exact limit by which the skill and diligence which a
solicitor undertakes to furnish in the conduct of a case is
bounded, or to trace precisely the dividing line between
that reasonable skill and diligence which appears to
satisfy his undertaking, and that crassa negligentia, or
lata culpa mentioned in some of the cases, for which he
is undoubtedly responsible. It is a question of degree and
there is a borderland within which it is difficult to say
whether a breach of duty has or has not been
committed."

Champion Auto Spares vs Phadke & ors 1969

EA 42
No Liability for reasonable error of judgment
or for ignorance of some obscure point of law
but for an act of gross negligence or ignorance
of some elementary matters of law constantly
arising in practice

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Kogo vs Nyamogo & Nyamogo C.A C.A 53

OF 2003 2003 EKLR
It is not the duty of the advocate to help the
appellant in gathering evidence with which
to prove his case

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Part 5

Mistake

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Mistakes of advocates
Generally will not be visited on the client if he is if
the mistake is in good faith , the client is blameless
and no prejudice that cannot be compensated in
costs will be occasioned
But clients should not over rely on the mistakes of
their advocates
The courts consider whether the mistake was
genuine or excusable.
Ger vs Marmannet Forest Coop & Credit Society
Ltd 1987 KLR 543
Kiarie vs Njoroge 1986 KLR 202
Nzoia Sugar Co v Fungutuku 1986 KLR 295

Mistakes of advocates
Kettlemen vs. Hansal Properties Ltd 1988 1
ALLER 38 at 62
Litigation must be conducted efficiently
That includes allowing the consequences of
negligence to fall on the head of solicitors

Mistakes of advocates
Omwoyo vs. AH & P Co Ltd 2002 1 KLR 68
The courts cannot afford the luxury of
entertaining the negligence of advocates in
litigation
The time has come when advocates must
bear the consequences of their mistakes

Trust Bank V Portway Stores

(1997)LLR 1197 (CCK)
Ringera J If acts or omissions of other agenst
with actual or ostensible authority in other
spheres of life are not without consequence
on their principals, why should it be different
in the legal profession?

Part 6
The case for immunity

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The case for immunity

The first relates to the special role of the advocate
and the potential impact on the administration of
justice. Advocates duties as an officer of the court
would be impaired the threat of law suits by
disgruntled clients
The second relates to the negative effect on the
administration of justice if issues were relitigated and
court decisions subject to collateral attack
The third relates to the cab rank rule. It is unfair to
compel to act if there is a potential for being sued by
the client
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Munster v Lamb ([188185] All ER Rep

A solicitor was sued for defamatory words
which he had spoken while defending an
accused person
Held; an absolute immunity applies

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Munster v Lamb. said ([188185] All ER

Rep
Sir Baliol Brett MR at p 792, letter c; (1883), 11 QBD
at p 599
To my mind it is illogical to argue that the protection
of privilege ought not to exist for a counsel, who
deliberately and maliciously slanders another person.
The reason of the rule is, that a counsel who is not
malicious and who is acting bona fide may not be in
danger of having actions brought against him.

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Munster v Lamb. said ([188185] All ER

Rep
Fry LJ dealing with the analogous cases of judges
and witnesses said ((1883), 11 QBD at p 607, [1881
85] All ER Rep at p 797):
The rule of law exists, not because the conduct of
those persons ought not of itself to be actionable,
but because if their conduct was actionable, actions
would be brought against judges and witnesses in
cases in which they had not spoken with malice, in
cases in which they had not spoken with falsehood
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Munster v Lamb. said ([188185] All ER

Rep
It is not a desire to prevent actions from
being brought in cases where they ought to be
maintained that has led to the adoption of the
present rule of law: but it is the fear that if the
rule were otherwise numerous actions would
be brought against persons who were merely
discharging their duty. Fry LJ ibid

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Munster v Lamb. said ([188185] All ER Rep

It must always be borne in mind that it is not

intended to protect malicious and untruthful
persons, but that it is intended to protect
persons acting bona fide who under a
different rule would be liable, not perhaps to
verdicts and judgments against them but to
the vexation of defending actions. Per Fry J
Ibid
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SALMON LJ: in Rondel vs. Worsely In the

Court of Appeal
The Bar has traditionally carried out these
duties, and the confidence which the Bench is
able to repose in the Bar fearlessly to do so is
vital to the efficient and speedy
administration of justice.

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SALMON LJ: in Rondel vs. Worsely In

the Court of Appeal
Otherwise the high standard of our courts
would be jeopardised. This is the real reason
why public policy demands that there should
be no risk of counsel being deflected from
their duty by the fear of being harassed in the
courts by every litigant or, criminal who has
lost his case or been convicted.

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Lord Reid Rondel vs Worsely 1969 HL

The argument before your lordship has been directed

to the general question of barristers liability and has
ranged widely. For the appellant it was said that all
other professional men, including solicitors, are liable
to be sued for damages if loss is caused to their
clients by their lack of professional skill or by their
failure to exercise due care; so why should not
barristers be under the same liability.

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Lord Reid Rondel vs Worsely 1969 HL

For the respondent it has been shown that for
at least two hundred years no judge or text
writer has questioned the fact that barristers
cannot be so sued, and a variety of reasons
have been adduced why the present position
should continue

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Lord Reid Rondel vs Worsely 1969 HL

It is, I think, clear that the existing rule was
based on considerations of public policy; but
public policy is not immutable and doubts
appear to have arisen in many quarters
whether that rule is justifiable in present day
conditions in this country. So it appears to me
to be proper to re-examine the whole matter

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Should advocates be granted

immunity?
Lord Morris Of Borth-Y-Gest: in Rondel vs.
Worsely :
The quality of an advocates work would
suffer if, when deciding as a matter of
discretion how best to conduct a case, he was
made to feel that divergence from any
expressed wish of the client might become
the basis for a future suggestion that the
success of the cause had thereby been
frustrated
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Lord Reid Rondel vs Worsely 1969 HL

Lord Morris Of Borth-Y-Gest: in Rondel vs.
Worsely : [In the Court of Appeal
In my view, the public advantages [of the
immunity] outweigh the disadvantages. They
do so overwhelmingly in respect of criminal
cases and considerably so in respect of civil
cases

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Per Lord Pearce Rondel vs Worsely (1969) HL

Is one, then, to compel counsel to advise or to
defend or conduct an action for such a person who,
as anybody can see, is wholly unreasonable, has a
very poor case, will assuredly blame some one other
than himself for his defeat and who will, if it be open
to him, sue his counsel in order to ventilate his
grievance by a second hearing, either issuing a writ
immediately after his defeat or brooding over his
wrongs until they grow greater with the passing
years and then issuing the writ nearly six years later
(as in the present case.
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Per Lord Pearce Rondel vs Worsely (1969) HL

I think it is right to say that the barristers

immunity from liability for professional
negligence in the conduct of litigation is an
exception from a general rule of professional
liability. It is based on public policy. On order
to show the recognised basis and scope of the
exception, I will cite some passages from
authoritative judgments. . Per Lord Pearce
Rondel vs Worsely (1969) HL
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Giannarelli v Wraith
(1988) 165 CLR 543
Giannarelli confirmed by a 4:3 majority the
existence of the advocates immunity from
suit for in-court work.
Not surprisingly, this decision has been
criticised, particularly by those professionals
who contrast the imposition upon them of
ever more stringent obligations of care with
the immunity accorded by the law to its own
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Allen -v- Alfred MacAlpine and Sons Ltd [1968] 2

QB 259; [1968] 1 All ER 543 1968 CA

The court described the peculiarly difficult

position of a solicitor sued for the negligence
of losing litigation for his client by reason of
having his client's claim struck out: "It is true
that if the action for professional negligence
were fought, the court which tried it would
have to assess what those chances were

Part 7
The case against Immunity

Arthur J.S Hall and Co. v Simons

(2000) 3 AER 673
The lords re-evaluated the public policy issues. The
critical factor was the duty of a barrister to the court
under ss27(2a) and 28(2A) courts and legal services
act 1990 (inserted by s42 access to justice act 1999).
The question was whether the immunity is needed
to ensure that barristers will respect their duty to
the court

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Arthur J.S Hall and Co. v Simons

(2000) 3 AER 673
In 1967, the answer?was that assertions of
negligence would tend to erode this duty and
accorded a special status to barristers.
Nowadays a comparison with other
professionals demonstrated that barristers'
immunity against being sued in negligence
was anomalous

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Arthur J.S Hall and Co. v Simons

(2000) 3 AER 673
Allowing civil action as unlikely to produce a
flood of claims and, even if some claims did
emerge, a claimant alleging that poor
advocacy resulted in an unfavorable outcome
would face the very great difficulty of
showing that a better standard of advocacy
would have resulted in a more favorable
outcome. Unmeritorious and vexatious claims
against barristers are simply struck out
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Arthur J.S Hall and Co. v Simons

(2000) 3 AER 673
Thus, it was no longer in the public interest
that the immunity in favour of barristers
should remain in either civil or criminal cases.
This did not imply that Rondel v Worsley was
wrongly decided.
But in today's world, that decision no longer
correctly reflected public policy. The basis of
the immunity of barristers has gone.
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Rationale for no immunity

Other professionals dont have immunity
The danger to advocates as officers of the
court was probably overstated
The danger to the administration of justice
was probably overstated
The demand for immunity longer reflects
public policy

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Part 8
Professional Indemnity

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Requirement of professional indemnity

insurance
2. (1) Every advocate practising on his own behalf
shall purchase a policy of insurance (in these
Regulations referred to as the professional
indemnity cover) the value of which shall be not
less than three million shillings
4. No practising certificate shall be issued to an
advocate to whom these regulations apply, unless
the requirements in paragraph (2) are complied with.

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Purpose of indemnity insurance

3. The professional indemnity cover shall be used in
the compensation of clients for loss or damage from
claims in respect of any civil liability or breach of
trust by the advocate or his employees
5. Nothing in these Regulations shall be taken to
preclude any agreement between an advocate or a
firm of advocates and a client in respect of any
insurance cover as may be deemed appropriate.

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END OF PRESENTATION: THANKS

FOR YOUR KIND ATTENTION
QUESTIONS OR COMMENTS WELCOME
CHARLES B G OUMA &EUNICE ARUWA
FACULTY KSL ATP 2013