Should the Rule of Immunity of Lawyers in Cases of Negligencce Be Allowed to Continue to Exist in Nigeria. Essay

Submitted By mmuojekwu
Words: 4036
Pages: 17

The approach to this question does require that one should look at the meanings of some concepts or terms used in it. These may include: lawyer/legal practitioner, immunity and negligence as the case may be.
In England, the legal profession has two branches outside the bench- barristers and solicitors. The barrister is mainly involved in advocacy or litigation while the solicitor is the general legal adviser to the citizens.
In Nigeria, the position is different. The two are fused. Every lawyer on enrolment practices both as a barrister and as a solicitor.
In addition, section 24 of the Legal Practitioner’s Act defines a legal practioner as a person entitled in accordance with the provisions of the Act to practice as a barrister either generally or for the purpose of any particular office or proceedings.
Immunity on the other hand is from latin (immunitas) which means an exemption from a legal obligation (munus), imposed on a person or his property by law, custom, or the order of a superior. Therefore, this exemption is a kind of privilege. It confers a status on a person or body that places him/her/it above the law and makes that person or body free from otherwise legal obligations such as liability for torts of damages or prosecution under criminal law for criminal acts.
Negligence is the failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm except for conduct that is intentionally, wantonly, or willfully disregardful of others rights.
In addition, section 217 Anambra State Torts Law 1986 defines negligence as “the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff”
From the above definition, three essential ingredients are involved in an action for negligence. These include:
1. A legal duty of care owed by the defendant to the plaintiff.
2. Breach of that legal duty by the defendant.
3. Consequential damage to the plaintiff.
For more than two centuries barristers have enjoyed immunity from actions in negligence. The reasons for this immunity were various. It included the dignity of the Bar, the "cab rank" principle, the assumption that barristers may not sue for their fees, the undesirability of relitigating cases decided or settled, and the duty of a barrister to the court:5 However, things assumed a different turn after the decision of the House of Lords in the case of Rondel v. Worsley. In that case, it was held 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. The immunity was not based on the absence of contract between a barrister and his client but on public policy and long usage. The dignity of the Bar was no longer regarded as a reason which justified conferring immunity on advocates whilst withholding it from all other professional men.
In Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. the rule was established that irrespective of contract, if someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the barrister did not enter into a contract with his client ceased to be a ground of justification for the immunity. Nevertheless, in a unanimous decision, the House in Rondel v. Worsley upheld the ancient immunity on considerations of "public policy which is not immutable.” It is worth recalling that in that case the appellant had obtained the services of the respondent to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
It is undoubtedly right, as counsel for