Mar 15, 2018

What is locus classicus? | Tobi Olatunbi



Locus classicus is the legal right or stand a person has to prosecute or be a witness in a matter.

Cases that supports these are: Rondel v Worsley(House of Lords)
Lord Reid, Lord  Morris of borth -Y- Gest.

Lord Pearce
Lord Upjohn
Lord Pearson. Nov. 22,1967.


Summary -In May 1959, the appellant was tried on charges of causing bodily harm to one M with intent to do so. He pleaded that the acts (which he did not deny) were justified. His defence was undertaken on a dock brief by the respondent a barrister- at- law but he was convicted and sentenced to imprisonment and his application for leave to appeal which included complaints against his counsel was refused.
Nearly six years later in February 1965, he issued a writ claiming damages for professional negligence against his Counsel,followed by a statement of claim drawn by himself which was in all respects defective and which the master ordered to be struck out . The appellant appealed from that order to a Judge in chambers who after hearing argument on behalf of the Official Solicitor as amicus curiae on the question "whether an action for negligence could lie against a barrister and after giving the appellant full opportunity to amend his Statement of Claim ,dismissed the action ,expressing the opinion that ,for reasons of public policy ,an advocate whether Barrister or Solicitor was immune from actions for negligence in and about the conduct of a client's case in court.

On appeal:
 Held, dismissing the appeal that a Barrister was immune from an action for negligence at the suit of a client in respect of his conduct and management of a case in court and the preliminary work connected therewith such as the drawing of pleadings . That immunity was not based on the absence of contract between barrister and client but on public policy and long usage in that (a) the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently;
(b) actions for negligence against barristers 1ould make the retrying of the original actions inevitable and so prolong litigation, contrary to the public interest; and

(c) a barrister was obliged to accept any client, however difficult who sought his services..

LORD REID: Had this to say :My Lords,in 1959 the appellant was charged at the central criminal court with causing grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for sometimes, he was informed  that he could have a "dock brief ". He chose the respondent His counsel and in accordance with his duty as a barrister ,the respondent agreed to act for him. During an adjournment he gave to the respondent his account of the affair. The respondent then cross- examined the Crown witnesses and called the appellant and another witness. The appellant was convicted and it is plain that he had no real defence but he was much aggrieved by evidence that he had used a knife;he wanted to establish that he had inflicted Manning's injuries with his hands alone or by biting and apparently, the respondent did not ask all the questions or lead all the evidence he had suggested.
In February 1965,the appellant raised the present action -His original statement of clam ,apparently prepared by himself was barely intelligible. In April,the respondent sought an order that the statement of claim be struck out as disclosing no cause of action and also as being irregular. In May,the master ordered that the statement of claim be struck out and the action dismissed. The appellant appealed and Browne J. asked the official Solicitor to instruct Counsel to act as amicus curiae.

In November 1965,Lawton J. heard argument for five days on the question whether the statement of claim disclosed any cause of action and held that it did not because a barrister cannot be sued by his client for negligence or lack of skill in presenting his client's case in court. I shall not deal with attempts to improve the statement of claim by amendment. And I shall not deal with the facts beyond saying that possibly a case could be made out to the effect that the respondent made some error of judgment -I am not in a position to express an opinion about that -but there is nothing in the facts before us to indicate any professional negligence or lack of skill on his part, and nothing to indicate that the appellant would have been any better off if the respondent had acted differently.

Leave to appeal was given and the Court of Appeal (Lord Denning M.R and Danckwerts & Salmon L.J J) on Oct 20,1966 dismissed the appeal. Salmon L.J said ,I think justly that the appellant's claim was clearly as devoid of merit as it was of any prospect of success, but in view of the importance of the question of law involved this House gave leave to the appellant to appeal.

The argument before your Lordships 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. 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.

0 comments:

Post a Comment