When you instruct a barrister (whether through a solicitor or by direct access), you are relying upon their expertise. They are there to do as you (or your solicitor) instruct; whether to provide advice, prepare key documents, or to represent you in court or tribunal. As barristers are experts, it is entirely reasonable to expect a level of service and for things to go as planned. If your barrister makes a mistake, however, you may be able to sue them for professional negligence.
So, what do you need to show to bring a claim against your barrister? You may have a claim for breach of contract and/or in negligence. In this blog, we will look at negligence claims only.
1. A duty of care
In a claim for professional negligence, you must be able to show that your barrister owed you a duty. This means that your barrister was required to carry out their duties to the reasonable standard expected.
In most cases, it will be clear that your barrister owed you a duty of care. In fact, often, a barrister will freely accept that they owed you a duty of care. This duty may take various forms and some examples include:
- A duty to advise you fully and adequately;
- A duty to ensure that they are fully prepared and sufficiently experienced to advocate on your behalf (or to advise you generally); and
- A duty to ensure that all documents that they prepare on your behalf are complete, accurate and, importantly, that they accord with your instructions.
2. Breach of the duty of care
The second thing you need to show to successfully sue a barrister is that the barrister’s conduct fell below the standard expected of a reasonably competent barrister in that field. This is known as breach of duty. This is where claims become slightly more contentious. There are of course often differing views as to how one should act in different situations. A solicitor will be able to advise you on whether your barrister has been negligent. Examples of how a barrister may have negligently performed their duties include:
- Failing to adequately prepare for a trial or court hearing (causing you loss);
- Providing incorrect legal advice; and
- Preparing inadequate legal documents.
3. Have you suffered a loss?
The final requirements (which must be satisfied) are to show that you suffered loss and that this loss is the result of the barrister’s negligence (known as causation).
In its simplest form, to show loss and causation, you must be able to demonstrate (on the balance of probabilities) that ‘but for’ your barrister’s negligence you would likely have suffered no loss, and that the barrister’s negligence was the legal cause of the loss (i.e. it cannot be said that another is more at fault, or that an ‘intervening act’ excuses the barrister’s liability).
There are often complex arguments associated with causation and quite often parties will spend considerable time disputing it. It is therefore important that you seek expert advice.
Lastly, you must show that you have suffered actual loss. This means that the issue is more than a service complaint (inconvenience/general dissatisfaction). This loss can take various forms. For example, it may be that (due to a barrister’s negligent advice) you had to instruct (and pay the costs of) another barrister. Often though, where a barrister has been negligent there can be more serious consequences, such as the court striking out (dismissing) your claim. If this is the case (assuming your barrister is responsible for the case being struck out) you may be able to pursue your barrister, in professional negligence.
Time scales for bringing a claim against your barrister
If you are considering suing your barrister for professional negligence, you must do so without delay. There are strict deadlines which apply to these cases, which if missed, may prevent you from bringing your claim. These time scales are referred to as ‘limitation’.
Limitation is unfortunately not always straightforward.
Generally, if you want to pursue your barrister in negligence you will have six years from the date of the barrister’s alleged negligent act. Often this will not be a problem, as a barrister’s negligence will be apparent immediately. However, there may be situations where you may not discover the barrister’s negligence until after the six-year period has expired. In such cases, an exception exists. This would give you three years from the date on which you reasonably became aware of the barrister’s negligence. Whilst this protection exists, it always best to seek immediate legal advice where you feel that your barrister may have negligently advised/represented you.
Our professional negligence team has many years of experience in bringing claims against barristers who have acted negligently. Call us today on 0800 988 7756 to speak to a specialist.