AFE BABALOLA UNIVERSITY ADO-EKITI

NAME: ISHAKU PRISCILLA KUYET

COURSE TITLE: TORTS LAW I

Matric Number: 13/LAW01/081

COURSE LECTURER: MRS Amalachukwu Okafor

Date of submission: Monday, 2nd November , 2015

Question: Can a legal practitioner be sued for Negligence in Nigeria vis a vis the UK? If yes ;
when how and where? What are the Sections of the Legal Practitioners Act that make provision
for that?

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1.0 INTRODUCTION:

The legal profession comprises of legal practitioners who represents those who depend on their
professional advice and other services that they have the requisite acumen and expertise.

2.0 WHO IS A LEGAL PRACTITIONER?

The Legal Practitioners Act defines a legal practitioner as 1a person entitled in accordance with the
provision of this Act to practice as a barrister or as barrister and solicitor , either generally or for the
purpose of any particular office or proceedings. A barrister 2 is defined as a student of law , who has
been called to the bar, and practices as advocate in the superior courts of law .The dual system in Nigeria
allows a legal practitioner to perform both as a barrister and a solicitor.The law that guides and regulate
the conduct of members of the legal profession is known as the Legal Practitioners Act cap. L11 LFN
2004.

Recent developments have shown that lawyers would not only be disciplined for misconduct in carrying
out their duties but can also be liable for negligence in professional conduct. Whether there are remedies
or damages to be awarded to aggrieved clients, the Legal Practitioners Act is what can determine that but
before considering what the LPA states concerning remedies and damages , what are the duties a legal
practitioner actually owe to his clients?

3.0 DUTIES OF A LAWYER TO HIS CLIENTS.

The relationship between a legal practitioner and his client is in some aspects that of agent and
principal while in some other aspects, it is that of an independent contractor who is given a job to do
and who chooses his means of performing it and achieving the goal.

The duty of a lawyer to his clients can be summarized into 3 heads;

The duty of honesty3

The duty of skill and care4
The duty of professional secrecy and privilege.5

1 Legal Practitioners Act, cap.L11 LFN,2004

2 Shorter Oxford Dictionary
3 Rule 13(1) of the Rules of Professional Conduct,see e.g NBA v. Udeagha(2006) 12 NWLR (pt.994) 438, Rule
15,15(3),Williams v. Franklin (196) All NLR 218, NBA v. Koku (2006) NWLR (pt 991)431; in this case
4 R.P.C, Rule 24, Rule 15(4) (5)
5 General rule, cap E 14 LFN, 2004, Queen v. Eguabor (1962) 1 All NLR 287

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The skill and care of the ordinary lawyer cannot be judged by the standards of exceptionally good
lawyer. The test is what the reasonable competent practitioner would do having regard to the standard
usually adopted in the profession.

4.0 LIABILITY FOR NEGLIGENCE

Negligence is the failure to exercise the standard of care that a reasonable prudent person would have
exercised in similar situation; any conduct that falls below the legal standards established to protect
others against unreasonable risk of harm except for conduct that is intentionally, or willfully
disregardful of others rights.

4.1 General principles: Since a legal practitioner has a duty of care and diligence, it follows that if he
fails in the discharge of that duty that is if he is negligent and the client suffers loss thereby, he will
generally be liable to the client for the loss. However, where a lawyer acts as a solicitor, he will be liable
for misstatements and wrong legal opinion that could cause loss to the client. This general rule and
exceptions to it are all contained in the Section 9 of the Legal Practitioners Act 1975 which makes it
clear that a legal practitioner is bound to discharge his duties with care and diligence equal to that
required of solicitors of competent skill and care 6 bearing in mind that it is not permitted to limit or
contract out of that liability. The general duty of care of the Nigerian lawyer is to avoid a breach of
contract or a breach under the rules of negligence and tort. Other than this , he is exempted from
liability in the conduct of proceedings.

In Nigeria, to think that a Legal Practitioner who is incompetent is immune from being sued over the
way and manner he or she conducted a case in court or negligently handled a professional duty entrusted
onto him or her is a fallacy because the functioning of the tort of negligence and the legal profession has
been codified in the Legal Practitioners Act.

However , a lawyer is liable to pay damages for negligence only when it comes under the common law
principles of negligence under the law of tort due to the fact that there are no specific statutory
provisions for damages for breaches that do not amount to misconduct.

A lawyer will be liable where;

He brings an action against wrong parties or an action that is statute barred

6 Lawson v. Siffre 11 NLR 113

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 He gives a wrong advice
Delay in entering appearances which leads to a default in judgment against his client.
Failure to prosecute a case with due diligence that leads to the case being struck out for want of
prosecution.
Delay in instituting proceedings that leads to the action being statute barred.

4.1 EXEMPTIONS TO LIABILITY

For every rule, there is an exception likewise the rule in Section 9(1) of the Act. There are basically two
exceptions to this rule;

Free service: this is dealt with in Section 9(2) of the Legal Practitioners Act , 1975 which
preserves the right of the legal practitioner to exclude or limit his liability in negligence.
Immunity of Barrister conducting court proceedings: Section 9(3) of the Legal Practitioners
Act, 1975 provides that the liability stated in sub-section one shall not affect the application
to a legal practitioner of the rule of law exempting barristers from the liability aforesaid in so far
as that rule applies to the conduct of proceedings in the face of any court, tribunal or body.
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Rondel v. Worsely is the most recent authority on this point. The question was directed to
barristers liability. 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?.

The extent of his liability is contained in Section 9(1) of the Legal practitioners Act 8. A counsel who
handles the case of his client carelessly or negligently and thereby creates a situation that causes an
injury on the client paces himself at the risk of being sued for professional negligence. He may be sued
in tort, contact or be prosecuted for criminal offences. His professional liability is limited to common
law. This was the decision in the case of Ayua v Agbaka9, and any such liability may not be exceeded or
limited by contract.

The immunity given to the legal practitioner in section 9(3) only protects him against an action in court.
If his negligence even in conducting proceedings in the face of the court amounts to unprofessional
conduct, the legal practitioner may be dealt with accordingly by the Legal Practitioners Disciplinary
Committee.
7 (1967)3All E.R. 993
8 Recent Development in the Liability of Lawyers to Clients and Third Parties: The Nigerian Perspective by Yusuf . O.Ali
9 Orojo

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4.2 DAMAGES FOR BREACH OF DUTY.

Under the Nigerian laws , there are no specific statutory provisions yet that apportion any type of
damage for breach of any of these duties by a lawyer.10

An action may be brought for damages against a legal practitioner by a client who suffers loss as a result
of his negligence. This is the usual remedy but the alternative is for the Legal Practitioner to pay for the
cost of the action in an appropriate case. This will also depend on the nature of transaction and the loss
suffered.

5.1 THE UNITED KINGDOM

Considering whether or not legal practitioners in the UK can be sued has been argued in two cases ; for
the support of immunity and against immunity for legal practitioners. These cases are Rondel v.
Worsely and Hall v. Simons. Before the Rondels case, the argument about immunity had been decided
in several other cases such as in Swinfen v Lord Chelmsford,11 the court held that barristers enjoyed
immunity from negligent actions to a very broad extent. The principal basis behind this decision was
that barristers could be retained at the choice of their client therefore no contract between both parties
upon which the barrister can be sued.

The case of Hedley Byrne v. Heller contrasted the decision in Swinfen; the decision was that a person
could still be held liable if he acts negligently even if there is no contract between the client and the
party.

In Rondel v Worsley, the House of Lords based the immunity squarely on grounds of public policy. It is
not that policy grounds were altogether absent from earlier decisions; rather, they were overshadowed,
because the nature of the relationship between barrister and client was considered to be determinative.
Swinfen v Lord Chelmsford itself refers to the duty owed by barristers to the courts and to the
administration of justice as relevant to the immunity.

This decision though limited to acts done in the conduct of litigation was decided based on some
considerations such as to ensure every person receives a fair and equal representation irrespective of the

10 Recent Development in the Liability of Lawyers to Clients and Third Parties: The Nigerian Perspective by Yusuf . O.Ali
11 (1860) 5 H & N 890 [157 ER 1436

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type of case ( the cab rank rule). Secondly a duty to the client might create divided loyalty leading to
improper conduct.

Thirdly, In proceedings brought to establish negligence against a barrister, it would be necessary to

prove that the outcome of the earlier case would have been different. This gives rise to the possibility of
two conflicting judgments, a circumstance which, obviously, is highly undesirable.

In England, the immunity continued to be maintained, and maintained within the same limits, until the
decision in Arthur J S Hall in 200012. It was observed in that case that barristers had enjoyed the
protection given by the immunity for some 200 years. However, the true purpose of the immunity was
not to protect barristers; it was to protect the administration of justice. There were many decisions that
tried to counter the decision of this case ;even some minority members of the court in Arthurs case
insisted that immunity should not be abolished because of criminal proceedings.

However, there does not appear to have been a flood of litigation in England since the decision in Arthur
J S Hall. Although consideration was given to abolition of the immunity in Australia, by statute that has
not occurred. Apart from England, US and Canada have also abolished or tried to limit immunity of
Barristers; till today Australia still maintains its position on immunity.

5.0 Conclusion

The issue of whether legal practitioners can be sued has been settled according to the provisions of the
Legal practitioners Act which contains both immunity and exceptions in Section 9 of the Act.

The immunity if allowed should work for the interest of fairness so that it doesnt become a necessary
evil to the body of legal practitioner and the Nation As a whole.

References

1) The Legal Practitioners Act, cap L11 2004, as amended May 16th 1975.
2) Rules for Professional Conduct, 2007.
3) Actions for Negligence against barristers in England and Australia by Hon. Justice Susan
Kietel Ac High Court of Australia. Accessed on 30/10/2015.

12 Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 676

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