•
AN ANALYSIS OF THE LAW ON PROFESSIONAL NEGLIGENCE IN THE LEGAL
PROFESSION (ACASE FOR UGANDA)
BY
MUGABIJOHN
LLB/31886/102/DU
A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL
FULFILMENT TO THE REQUIREMENTS FOR THE AWARD OF THE
BACHELORS DEGREE OF LAWS OF KAMPALA
INTERNATIONAL UNIVERSITY
0
MAY 2014
DECLARATION
I the undersigned do hereby declare that this research work is a result of my on
independent effort and that save for the acknowledgments thereof given to respective
Authors and Authorities herein cited, the work has never been examined in any
University.
Declared by me:
MUGABI JOHN DECLARANT
.. ~ .. Dated At Kampala thi~ ... day of ... ~~2014
APPROVAL
I the undersigned do hereby approve this research Paper, having supervised the student and do recommend it for acceptance by the School of Law Kampala International Univer~.
Approved this .. ~ ...... day of.. .... ~./. ...... 2014
MR.MUUKO JULIUS @.,:::9~3 SUPERVISOR
ii
DEDICATION
I dedicate this work to you my beloved wife Garret Hope Mugabi
iii
ACKNOWLEDGEMENT
The almighty God who has enabled me reach this far and allowed me to live, and accomplish my tasks here on earth.
I would like to extend my gratitude to my learned supervisor Mr. Muliko Julius for his generosity in sharing the knowledge and kindly agreeing to be my supervisor and his professional guidance extended to me during the time of preparing this work.
To My beloved mother Ms Jenifer Biryeri for fighting hard to see that your children become value adding persons to the development of Uganda. The Late Mr. Kakaire should have lived to see this success unfortunately circumstance could not allow him, His contribution while here on earth till 1993 is well accredited.
To my wife Garret Hopes Mugabi for standing by my side even when I spent sleepless nights working on this research and for the entire four years I spent in Law school. You tolerated my mood with well-disguised resignation; you understood my predicament.
My Gratitude to the family of Mr & Mrs Scott Volz, all the support you have rendered to me in the journey to Success.
Iam indebted and owe gratitude to Pr.& Mrs Steven Mayanja Ddamulila, Pr.& Mrs Ronald Devore, Pr Mrs Brian Bandelman, Pr. & Mrs David Easterly, Pr & Mrs Waiswa Robert.
I am indebted to Dr & Mrs Duane Carter, Thank you for being my good friends and I owe a particular debt of gratitude.
My friends Dr. Brad & Anya Schmitz.
I wish to extend and record my often unspoken debt of gratitude to my mother in Christ Ms Mary Braden; your moral and financial assistance can never go unmentioned in my Journey to Success.
I am indebted to the family of Mr & Mrs Merritt Hunt, I cannot forget your loving hearts deserve a bunch of gratitude.
To my friend and mentor Mr. Tweyanze Lawrence who encouraged me to pursue the Law career having identified the abilities in me.
To my brother Menya Rogers, to my brother Kakaire Daniel, to my Brother Tusubira Simon, to my sister Kwagala Sharon.
iv
UST OF STATUTES
The Advocates Act Cap 266
The Advocates Amendment Act of 2002
The Commissioners for oaths Advocates Act of 1950
The Judicature Act
The Notary Publics Act of 1950
v
USTOFCASES
AI-Kandari v J.R. Brown & Co. (1988) QB 665
Arthur J.S Hall and Co. v Simons (2000) 3 AER 673
Bolam v Friern Hospital (1957) 1 WLR 583
Bolitho v City and Hackney Health Authority (1997) 4 AER 771
Caparo Industries pic. V Dickman (1990) 2 AC 605
Carr-Glynn v Frearsons [1997] 2 AER 614
Clarke v Bruce Lance & Co. (1988) 1 WLR 881
Darker and others v Chief Constable of West Midlands Police (2000) 3 WLR 747
Donoghue v Stevenson [1932] AC 562
Edward Wong Finance Co. Ltd. v Johnson Stokes & Master (1984) 1 AC 296
Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335
Evans v London Hospital Medical College (1981) 1 WLR 184
Gran Gelato Ltd. v Richcliff (Group) Ltd. (1992) Ch 560
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
Hucks v Cole reported in (1993) 4 Med. L.R. 393
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
James McNaughton Papers Group Ltd. v Hicks Anderson & Co. (1991) 1 AER 134
Ridehalgh v Horsefield (1994) Ch 205
Rondel v Worsley (1969) 1 AC 191 at 227
Sa if Ali v Sydney Smith Mitchell & Co. (1980) AC 198
Stanton v Callaghan (1999) 2 WLR 745
vi
Thake v Maurice [1984] 2 All ER 513
Watson v M'Ewan (1905) AC 480
White v Jones [1995] 1 AER 691
Edgeworth Construction v Lea and Walji [1993] 66 B.L.R.56 (Canadian Supreme Court)
vii
liST OF ACRONYMS
In this report, unless otherwise clearly expressed by the researcher:
JLOS- refers to the Justice Law and order sector.
ULS-refers to the Uganda Law society.
JSC- refers to the Judicial service Commission.
AC- refers to Appeal Cases
AER-refers to All England Reports
WLR-refers to Weekly Law Reports.
QB-refers to Queens Bench
viii
TABLE OF CONTENTS DECLARATION ......................................................................................................................... i
APPROVAL ............................................................................................................................... ii
DEDICATION .......................................................................................................................... iii
ACKNOWLEDGEMENT .......................................................................................................... iv
LIST OF STATUTES ................................................................................................................ v
LIST OF CASES ...................................................................................................................... vi
LIST OF ACRONYMS ........................................................................................................... viii
TABLE OF CONTENTS .......................................................................................................... ix
ABSTRACT ............................................................................................................................. xii
CHAPTER ONE: ........................................................................................................... 1
GENERAL INTRODUCTION ...................................................................................... 1
1.0. Introduction .................................................................................................................... 1
1.1. The meaning of a profession .................................................................................... 1
1.2. Historical Background ................................................................................................... 1
1.3. The Tort of Negligence ................................................................................................. 2
1.4. Professional Negligence in general ............................................................................. 3
1.4.1. The relationship between contract and tort ........................................................... s
1.4.2. Legal Negiligence ....................................................................................................... 9
1.4.3. Expert Witnesses ...................................................................................................... 13
1.4.4. Statement of the problem ....................................................................................... 15
1.4.5. Objective of the study .............................................................................................. 16
1.4.6. Research questions ...................................... : ........................................................... 16
1.4. 7. Conceptual Flame work ........................................................................................... 17
1.4.8. Significance of the study ......................................................................................... 17
1.4.9. Scope of the study ................................................................................................... 18
1.4.10.Chapterisation .......................................................................................................... 18
ix
CHAPTER TWO: ........................................................................................................ 19
LITRATURE REVIEW ............................................................................................... 19
2.1. Introduction .................................................................................................................. 19
2.2. The Acts of Parliament. ............................................................................................... 19
2.2.1 The Advocates Act ..................................................................................................... 19
2.3. The Regulations ........................................................................................................... 21
2.3.1 The Advocates (Professional Conduct) Regulations ............................................. 21
2.4. Text Books .................................................................................................................... 22
2.4.1 Black's Law Dictionary ............................................................................................... 22
2.4.2 Halsbury Laws ............................................................................................................ 23
2.4.3 Winfield and Jolowiz .................................................................................................. 23
2.4.4 Salmond ...................................................................................................................... 24
2.5. Published Legal Journals ............................................................................................. 24
2.5.1 Alison Murray .............................................................................................................. 24
2.5.2 T.G.Bastedo ................................................................................................................ 24
2.6.Published Legal Articles ................................................................................................ 25
2.6.1 John L. Powell Q.C.says; .......................................................................................... 25
2.6.2 Rose E.J, Alfred.C. ..................................................................................................... 25
2.7. The Common Law Doctrines ...................................................................................... 26
2.8. Case Law ....................................................................................................................... 27
2.9. Institutional Frame Work ............................................................................................ 30
2.9.1 The Law Council ......................................................................................................... 30
2.9.2 Uganda Law Society ( ULS) ...................................................................................... 32
2.9.3 Justice Law and Order Sector JLOS ........................................................................ 32
2.10. Conclusion ................................................................................................................... 33
X
CHAPTER THREE: .................................................................................................... 35
METHODOLOGY ....................................................................................................... 35
3.1. Introduction ................................................................................................................. .35
3.1.1 Systematic investigation ........................................................................................... 35
3.1.4. Analytical Investigation ............................................................................................ 36
3.1.5.Qualitative Method ..................................................................................................... 36
3.1.6. Review of the identified research Material ........................................................... 37
3.1.7. Conclusion .................................................................................................................. 37
CHAPTER FOUR: ...................................................................................................... 38
FINDINGS . ................................................................................................................ 38
4.1 Introduction ................................................................................................................... 38
4.2. Applicability of Common Law Doctrines in Uganda ................................................ 38
4.2.1. Challenges in Litigation ............................................................................................ 39
4.2.2. Remedies Available to injured Persons arising out Negligence of Legal
Practitioners .......................................................................................................................... 40
4.2.3. Difficulties in enforcement and Pursuit of remedies .......................................... .41
4.3. Conclusion ..................................................................................................................... 43
CHAPTER FIVE: ........................................................................................................ 45
RECOMMENDATIONS AND CONCLUSION .......................................................... 45
5.1 Introduction .................................................................................................................. .45
5.2. General Recommendations ......................................................................................... 45
5.3. CONCLUSION ................................................................................................................ 47
REFERENCES ......................................................................................................................... 50
ARTICLES .......................................... , ................................................................................... 52
xi
ABSTRACT
The study analyzed the Law on professional negligence in the legal profession in
Uganda and the challenges such laws face in the attempt to protect the public who are
the potential clients for Legal Practitioners from injury arising from professionally
negligence.
The research establishes the relationship between Legal professionals and their clients
pointing out that a Legal professional may be held liable for a tort of negligence if
he/she fails to exercise that due care skill and diligence expected from him/her in the
discharge of his/her duty to the client.
The study has also investigated how Government policies sought to enable the clients
of legal practitioners to obtain appropriate and optimum benefits from their resources
and how they seek to achieve the goals of satisfactory production and performance
standards, adequate performance methods, informative approaches and the effective
protection against the malpractices and actions which could adversely affect the
interests of clients in the delivery of professional of services.
The study also investigated the safety of the general public against professional
negligence and how the government has encouraged the adoption of appropriate
measures including the systems, regulations, national or international standards,
voluntary standards and the mantainance to ensure that the services provided to the
general public is appropriate and safe for the intended or the foreseeable use.
The research approaches selected were used aiming at producing a comprehensive and
detailed description of the area under investigation.
The clients have for long suffered at the hands of the professionals with little available adequate remedies and the protection of the Law and many have ended up losing their lives, incurring exorbitant costs, as a result of the professional negligence. Hence the need for this study is to find out how far the law has gone to give redress to these problems and the challenges thereof faced by the provisions of the laws on the protection which could call for reform in the in the legal profession.
xii
CHAPTER ONE:
GENERAL INTRODUCTION
1.0. Introduction.
With the rapid ratios in development, we find ourselves living in the world where
professionals have surrounded us. Common Wealth vs. Brown1It is without
contention that professions are characterized by the need of unusual learning, the
existence of confidential relations, the adherence to a standard of ethics higher than
that of the market place, and in profession like that of medicine is treated by intimate
and delicate personal ministration. Traditionally, the learned professions were theology,
Law, and medicine; but some other occupations have climbed, and still others may
climb to the professional plane.
1.1. The meaning of a profession. A profession2 is a vocation requiring advanced education and training. A professional
therefore is a person who belongs to the learned art in a characteristically methodical,
courteous and ethical manner. There are three traditional learned professions which are
Law, Medicine, and Ministry.The occupations which today are regarded as professions,
however, extend far beyond those regarded as such in 1838. They have increased as
human knowledge and skill and consequent specialisation have increased. Inevitably
the word "professional" has become less distinct in its connotation and unsatisfactory as
a classification of occupations.
1.2. Historical Background. 800 Years Ago, Early days of common law. The state had little concern regarding
individuals and their interactions. In the 1300s The monarchy began to take an interest
in individual interactions. Trespass began the law of torts. However, a party wanting to
bring an action for trespass had to follow strict forms- their trespass must fit a writ.
1400s In response to the restricfulness of the writ system, "actions on the case"
1 20 N.E.2"d 478,481 (Mass 1939) Cited in the Blacks Law Dictionary 8th Ed at 1246 2
Ibid Page 1246
1
developed. The appealed to a sense of justice, and developed into nuisance, some
others, and negligence. Early negligence could only apply to certain cases:
Apothecaries, doctors/surgeons, and other people who served the public in a
professional capacity, and for whom there was a general accepted standard of
appropriate conduct. Late 1700s Negligence developed in a way that they could be
indirect, as opposed to the directness required by the trespass torts. Scott v. Sheppard
is an example of a trespass tort requiring directness.1800s Instead of focusing on
causation, courts began to see fault as most important for actions on the case. With
this shift in focus, it became less necessary to restrict actions to the pre-set categories.
There was an attempt to develop a more general theory/principled approach the
negligence.3
1.3. The Tort of Negligence. In Coal co Vs Macmillan4 Lord Wright opined that "That Negligence in strict sense
means more than needless or careless conduct, whether in omission or commission. It
properly connotes the complex concept of duty, breach and damage thereby suffered
by the person to whom the duty owed. The successful claimant in negligence action
must establish there propositions 1. That the defendant owed the claimant duty of care,
2.That there was breach of the duty of care, falling below standard, 3. That there was
damage suffered of the kind that the Law deems worthy of compensation. Donogue
and Stevenson, the General rule is that: the Duty of care only arises where the result
of that failure in the duty leads to damage either to a person or to the property.
The Tort of negligence is the means by which the Law attaches consequences to
unacceptable behavior. In Doughty V Turner Metal Manufacturing Co.5Lord
Diplock described it as the application of common sense and common morality to the
activities of the common man.
3Kenneth.W. Simons, Widener Law Journal Vol17 4 (1934) AC 1 at 25 5 (1964) 1 QB 518
2
It is said to be the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs would do,
or doing something which a prudent and reasonable man would not do. Thus in Blyth
Vs Birmingham Water Works6 Where the plaintiff descending from a Train when
she had an auto accident but when she saw blood and suffered nervous shock. It was
reasonably foreseeable that some people would suffer damage as result of negligent
driving of the defendant but the plaintiff's injury was not foreseeable as she was far
from the accident and therefore there was no duty of care owed to her.
1.4. Professional Negligence in general
Professional Negligence7 is also referred to as malpractice where in this context is an
instance of negligence or incompetence on the part of a professional. To succeed in this
malpractice claim, the plaintiff must also prove the proximate cause and damages. It
will usually involve the failure to render professional services with the skill, prudence,
and diligence that an ordinary and reasonable professional in that particular field would
use under similar circumstances. Professionals owe duty of care in their work which
result in their reports because they engage in a calling which requires special
knowledge and that duty is owed to persons directly affected by their work; Their
employers, or client and to any third person to whom they know their employer is going
to show their work.
Professional negligence is a breach of the duty of care between professionals and their
clients. The duty of care is a common law arrangement where the client expects a level
of professionalism and standards commonly held by those in the profession. The most
common term for medical professional negligence is medical malpractice. For this
instance, the patient expects the doctor and his subordinates to adhere to standards
that would prevent undue harm and distress to patients under his or her care.
Negligence on the part of the doctor while performing his duties as a professional is
6 (1856) 11 Exch 781 7 Ibid at page 978
3
malpractice, which breaches the duty of care that the patient has put in the doctor and
will involve legal penalties.B-rhe duty of care is limited to persons by whom and whom it
is owed and the transactions to which it applies.
There are various forms of professional negligence; lawyer may engage in legal
malpractice if he not only deploys a questionable legal strategy but also makes critical
errors that no "reasonable attorney" would make. In a case such as this, an expert
witness may be necessary to prove that the lawyer was negligent and breached his
duty of care with his client. Similarly, any instance where a client relies on a
professional to fulfill his or her duty of care can be a form of professional negligence if
the professional commits an egregious breach of conduct. By this definition, a
professional that dispenses poor investing advice while breaching the common duty of
care placed in financial advisors, then the client is entitled to damages. If a mental
health professional behaves unethically and violates common practice, than he too has
engaged in malpractice. Lastly, builders and architects maintain a duty of care with
owners and tenants to ensure that the building they erect will adhere to government
regulations and common practices for the construction of buildings9
However/0the focus of the duty is on the standard of performance and not result.
Nevertheless, it also impacts on the desired result in that it allows for the possibility that
the result may not be achieved. Failure to achieve the result may be consistent with
the exercise of reasonable care and skill. It is the latter feature of the duty which
explains its early selection as the standard of performance required of doctors and
advocates.
Thus, in Lanphier v Phipos11Tindal C.J ''Every person who enters into a learned
profession undertakes to bring to the exercise of it a reasonable degree of care and
8 Law.com http://negiligence.laws.com/professional-negiligence 9http://negligence.laws.com/professional-negligence#sthash.D51J2WYy.dpuf
10John .L. Powell QC Professional Negligence, The Changing Coastline of Liability. 11(1838) 8 C. & P. 475
4
skill. He does not undertake, if he is an attorney, that at all events you shall gain your
case, nor does a surgeon undertake that he will perform a cure; nor does he undertake
to use the highest possible degree of care. In the case of an attorney, it reflected the
need to take account of the cooperation of the client, the available evidence, the
credibility and unpredictability of witnesses, the resources deployed by the parties and
other factors beyond the attorney's control. Likewise in the case of other professionals
the selection of the duty is explicable in terms of an assessment of features specific to
their occupation.
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. The usual rules rely on establishing
that a duty of care is owed by the defendant to the claimant, and that the defendant is
in breach of that duty. The standard test of breach is whether the defendant has
matched the abilities of a reasonable person. But, by virtue of the services they offer
and supply, professional people hold themselves .out as having more than average
abilities. This specialized set of rules determines the standards against which to
measure the legal quality of the services actually delivered by those who claim to be
among the best in their fields of expertise.
1.4.1. The relationship between contract and tort
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, The
standard of care required to satisfy this contractual obligation is the same as in
negligence, but the circumstances in which each liability may arise differ in that
contracts are voluntarily created between the parties, while the duty of care is imposed
by operation of law. However, suppose that a solicitor contracts with a medical expert
5
to prepare a report for the purposes of personal injury litigation. The beneficiary of this
work will be the client but there is no direct contractual relationship between the expert
and the client. It may therefore be argued that since the parties have decided to
arrange their relationships to avoid direct contractual obligations, the client should not
be permitted to sue in tort, bypassing the privity rule and any exclusion clauses in the
contract.
In Henderson v Merrett Syndicates £t(Pthe potential effectiveness of this
argument was acknowledged in a case where there was a formalized structure of agent
and sub-agent, but the general scope of this potential limitation remains unclear.
However, it is clear that if there is concurrent liability in contract and tort, the quantum
of damages is limited to the actual loss suffered and does not increase because there
are two causes of action.
In Thake v Mauricel3a railway guard and his wife had five children living in a three
bedroomed council house and were unwilling to have further children. Thake consulted
the surgeon who made it clear that a vasectomy was final and that Thake after the
operation would become permanently sterile. Although the vasectomy was properly
performed, the effect of this operation was naturally reversed and, not unexpectedly,
Mrs. Thake conceived and a daughter was born. It was held that, applying the objective
standard, the surgeon had contracted not merely to perform a vasectomy but had
contracted to make Mr. Thake irreversibly sterile. The judge relied on the consent forms
which stated that the vasectomy would be final. The claim was brought in contract and
in tort. Peter Pain J. found that there was no reason why public policy prevented the
recovery of expenses arising from the birth of a healthy child. He awarded damages in
respect of the expenses of the birth and the mother's loss of wages but refused
damages for the pain and distress of labour holding that these were offset by the joy
occasioned by the birth. He did, however, award damages in an agreed sum for the
"[1995]2 AC 145 13[1984]2 AllER 513
6
child's upkeep to its seventeenth birthday. The Court of Appeal held that damages
should be awarded for pain and suffering "per the majority" in tort rather than contract.
The joy of having the child could be set off against the time, trouble and care in the
upbringing of the child but not against prenatal pain and distress. For the latter,
damages should be awarded. The case is also interesting because there was an
alternative interpretation of the consent form. After sterilization, some couples want to
change their minds because their children have died or because they are seeing better
days. Instead of the surgeon giving a guarantee of irreversible sterility which depended
on the way in which human tissue healed, the warning of finality could be aimed at
telling both husband and wife that they could not change their mind later and complain
if the spouse had become permanently sterile.
Even though the general objective standard of care cannot come down, it can be raised
where the individual defendant has expressly or impliedly represented skills and abilities
in excess of the ordinary person. It is an unfortunate fact of life that some professionals
prove to be negligent because even those with the most experience can make a
mistake. The consequences to their clients can be disastrous. Thus, professionals
providing services in a wide range of situations, from surveyors and estate agents to
doctors, solicitors, accountants, financial services providers, Information Technology
professionals, patent agents, etc., will be judged by the standards of those claiming to
have that same set of skills and abilities. This is the basis of the Bolam Test for medical
negligence derived from Bolam v Friern Hospitaf4. This test is not significantly
different from the test used in any other professional negligence litigation, but it causes
greater difficulty for the courts than would a claim against, say, a lawyer or an
accountant, because of the technical issues involved.
14(1957) I WLR 583
7
In addition, Hedley Byrne & Co Ltd v Heller & Partners Lttf5created the rule of
"reasonable reliance" by the claimant on the skills of the defendant.
"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."
Cases of professional liability blur the distinction between acts and statements, an
example, a medical specialist prepares a report for personal injury litigation, which can
be characterized as a statement, but it must be based on the prior acts of carrying out
a review of the medical records and performing a physical examination of the client.
Actions nominally based on Hedley Byrne by definition include negligent acts or
omissions, even though the ratio decidendi of Hedley Byrne was cast in terms of
liability for statements. In Caparo Industries pic. V Dickma!T6the 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 (1) 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, (2)
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, (3) it is known, either actually or inferentially, that the advice so
"(1964) AC 465 "(1990) 2 AC 605
8
communicated is likely to be acted on by the advisee for that purpose without
independent inquiry and ( 4) it is so acted on by the advisee to his detriment."
Following Caparo, the Court of Appeal in James McNaughton Papers Group Ltd. v
Hicks Anderson & CoP adopted a more restricted approach, focusing in the adviser's
actual and constructive knowledge of the purpose for which the statement was made.
Thus, the duty was to be limited to transactions or types of transactions where the
adviser knew or ought to have known that the advisee would rely on the statement in
connection with that transaction without obtaining independent advice. It also had to be
shown that the advisee did in fact reasonably rely on the statement without using his
own judgment or obtaining independent advice.
In Henderson v Merrett Syndicates Ltd. the Lords reasserted the underlying
principle that liability under Hedley Byrne was a voluntary assumption of responsibility
for performing the given task by a person rendering professional or quasi-professional
services irrespective of whether there was a contractual relationship between the
pages.
1.4.2. Legal Negligence.
As to solicitors, Ross v. Caunter$-8, holds that lawyers can owe a duty of care both to
their clients and to third parties who suffer loss or damage. In that case, the solicitors
failed to prevent a beneficiary from attesting the will. They admitted negligence but
denied that they were liable to the claimant, contending (i) that a solicitor was liable
only to his client and then only in contract and not in tort and could not, therefore, be
liable in tort to a third party, (ii) that for reasons of policy, a solicitor ought not to be
liable in negligence to anyone except his client, and (iii) that in any event, the Plaintiff
had no cause of action in negligence because the damage suffered was purely financial.
17(1991) I AER 134 "[1979]3 AER 580
9
Applying the principles in Hedley Byrne & Co Ltd v Heller & Partners Ltd and
Donoghue v Stevensorr9, a solicitor who is instructed by a client to carry out a
transaction that will confer a benefit on a third party owes a duty of care towards the
third party in carrying out that transaction, in that the third party is a person within his
direct contemplation as someone who is likely to be so closely and directly affected by
his acts or omissions that he can reasonably foresee that the third party is likely to be
injured by those acts or omissions. This was confirmed in White v Jone?0 which
applied Caparo Industries pic v Dickmar?-1 holding that there is a close and direct
relationship characterized by the law as proximity or neighborhood; and the situation is
one where it is fair, just and reasonable that the law should impose the duty of the
given scope upon the one party for the benefit of the other. But in Carr-Glynn v
Frearson?2 the solicitor admitted uncertainty as to whether the will as drawn would
be effective. The testatrix undertook to seek out the information needed to clarify the
issue. She died more than three years later without verifying the will. White v Jones
was distinguished because the testatrix had assumed the duty of care, but the court
was critical of the failure of the solicitors to send a letter of reminder. The case law also
indicates the necessity for firms of solicitors to keep detailed attendance notes.
Gran Gelato Ltd. v Richc/iff (Group) LtdP involved a solicitor's replies to
preliminary enquiries in a conveyance transaction. It was therefore foreseeable that
others would rely on the answers given but the court held that there was no duty of
care. A solicitor owes a professional duty of care to the client24 and no-one else. He or
she is subject to professional rules and standards, and owes duties to the court as one
of its officers. Thus, in general, when acting for the seller of land a solicitor does not
"[1932] AC 562 "[1995]1 AER 691 21 [1990]1 AER 568 "[1997] 2 AER 614 "(1992) Ch 560 ""client" defined in section 1 of the Advocates Act includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, an advocate and any person who is or may be liable to pay to an advocate any costs.
10
owe a duty to the buyer. Similarly, AI-Kandari v J.R. Brown & Ctf5 held that a
solicitor acting for a party in adversarial litigation does not owe a duty of care to that
party's opponent This was a family case involving contested custody, where the
husband had previously abducted the two children of the parties. Solicitors undertook to
keep the husband's passport (which included the children's names) under their control.
Bingham U. said at 675:
"In the ordinary course of adversarial litigation a solicitor does not owe a duty of
care to his client's adversary. The theory underlying such litigation is that justice
is best done if each party, separately and independently advised, attempts within
the limits of the law and propriety and good practice to achieve the best result
for himself that he reasonably can without regard to the interests of the other
party. The duty of the solicitor, within the same limits, is to assist his client in
that endeavor, although the wise solicitor may often advise that the best result
will involve an element of compromise or give and take or horse trading.
Ordinarily, however, in contested civil litigation a solicitor's proper concern is to
do what is best for his client without regard to the interests of his opponent."
Further, and perhaps most strikingly, it has been held that a solicitor advising a client
about a proposed dealing with his property in his lifetime owes no duty of care to a
prospective beneficiary under the client's then will who may be prejudicially affected. In
Clarke v Bruce Lance & Co.26, it was recognized that solicitors may sometimes give
advice which directly prejudices the interests of others who have a relationship with the
client But, so long as this advice is consistent with the duty owed to the client, there
will be no liability to that third party. Exceptionally, solicitors have been held to have
assumed a responsibility towards the claimant, i.e. in situations analogous to a holding
a fund on behalf of both sides of a dispute pending its resolution.
"(1988) QB 665 "(1988) 1 WLR 881
11
In Hedley Byrne & Co Ltd v Heller & Partners ltd the rule was established that
irrespective of contract, if someone who possesses a special skill undertakes to apply
that skill for the assistance of another person who relies upon that skill, a duty of care
will arise. The fact that the barrister did not enter into a contract with his solicitor or
client ceased to be a ground of justification for the immunity. Nevertheless, in a
unanimous decision, Lord Reid said in Ronde/ v Worsley7that the ancient immunity
should be continued on considerations of ''public policy [which are] not immutable. 28 In
Saif Ali v Sydney Smith Mitchell & Crr9 the scope of the immunity was considered.
Lord Wilberforce said at 213 that " ... barristers . .. have a special status, just as a trial
has a special character: some immunity is necessary in the public interest, even if, in
some rare cases, an individual may suffer loss." In England, the court and legal services
Act of 199030introduced the power to make wasted costs orders against legal
practitioners, Ridehalgh v Horsefieltr1 ruled that orders could be made against
barristers personally.
As to criminal trials, prosecuting counsel owes no duty of care to a defendant:
Elguzouli-Daf v Commissioner of Police of the Metropolis'12,If a defendant is
convicted after a full and fair trial, the remedy is to appeal. An attempt to challenge the
convictions by suing the defence advocate would be an abuse of process: Hunter v
Chief Constable of the West Midlands Po!icti'3,If any challenge is to be made
following an unsuccessful appeal, the only legitimate avenue would be the Criminal
Cases Review Commission even though the body is under-resourced. But the question
"(1969) 1 AC 191 at 227 "Roxburgh 1968 "(1980) AC 198 30 Laws of England 31(1994) Ch 205 32(1995) QB 335 33(1982) AC 529
12
remained as to whether a civil action might be maintained if the appeal was
successful34•
In Arthur J.S Hall and Co. v Simon$'5, 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 (inserteq 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. 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. Allowing civil action was 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.
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 Ronde/ 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. And exactly
the same reasoning is applied to solicitor advocates.
1.4.3. Expert Witnesses.
In cases of Expert Witnesses Since Watson v M'Ewa!?6, English law has allowed a
public policy immunity to any witness, including those who give evidence that is "false
and injurious" or merely negligent. In Evans v London Hospital Medical Col/egt?7,
Drake J. said that, in criminal proceedings, the immunity covereci "the statement
... made for the purpose of a possible action or prosecution and at a time when a
34 Cane 1996 35(2000) 3 AER 673 36(1905) AC 480 37(1981) 1 WLR 184
13
possible action or prosecution is being considered " He also thought the immunity
extended to, ': .. acts of witnesses in collecting or considering material on which he may
be called to give evidence. 'Tn Stanton v Callaghatr8 Chadwick U. Said,
"It seems to me that the following propositions are supported by authority
binding on this court: (1) an expert witness who gives evidence at trial is
immune from suit in respect of anything which he says in court and that
immunity will extend to the contents of the report which he adopts as, or
incorporates in, his evidence; (2) where an expert witness gives evidence at a
trial the immunity which he would enjoy in respect of that evidence is not to be
circumnavigated by a suit based on the report itself and (3) the immunity does
not extend to protect an expert who has been retained to advise as to the merits
of a party's claim in litigation from a suit by the party by whom he has been
retained in respect of that advice, notwithstanding that it was in contemplation
at the time when the advice was given that the expert would be a witness at the
trial if that litigation were to proceed."
In Arthur JS Hall v Simons, Lord Hoffmann justified the policy in that without the
immunity, witnesses " ... would be more reluctant to assist the court". In Darker and
others v Chief Constable of West Midlands Policti'9, the claimant alleged that
police officers had conspired with an informant to forge and manipulate records of
evidence. Lord Clyde confirmed the immunity for the preparation of a report to be used
in court. He said:
"In drawing the line in any particular case it may be necessary to study precisely
what was being done and how closely it was linked with the proceedings in
court .... The reason for admitting to the benefit of the immunity things said or
done without the wall of the court is to prevent any collateral attack on the
witness and circumvent the immunity he or she may enjoy within the court."
"(1999) 2 WLR 745 "(2000) 3 WLR 747
14
This confirms the general principle that a witness does not owe a duty of care to
anyone in respect of the evidence given to the court. The only duty is to tell the truth.
In Part 35.3 Civil Procedure Rules, the expert's duty is to help the court and this duty
"overrides" any obligation there might be to the client or the person who instructs
and/or pays him or her.
However, the position in respect of expert witnesses was altered by the decision of the
Supreme Court in 2011 in Jones v Kaney, which overruled Stanton v Callaghan. As
before, an expert will be liable to his client for advice which is tendered to and relied
upon by the client under normal principles. However, as a result of the decision, an
expert who provides a report which is adduced in evidence before a court no longer
enjoys immunity from suit for claims for negligence or breach of contract (although
immunity in defamation remains).
1.4.4. Statement of the problem The study showed how the developing needs of society which has demanded an
increase in professionals and the likely negligence from the said professionals that may
affect clients. Uganda's Laws regulating particular professions which have been
investigated lack better effective provisions that would ensure compliance and also
relies mostly on penal sanctions to enforce compliance and these very low. The level of
exercising skill and calling by the professionals is still wanting as most of them have
taken advantage of the ignorance of their clients, the poverty ratios and the
technicalities in the seeking redress. The Advocates Act40 provides for the establishment
of the Law council, the Law council sits in Kampala and thus people in rural areas are
vulnerable to suffer from injuries caused by the negligence of their Lawyers because of
the lack of adequate means to reach justice and most of these persons are not
informed, The Allied
4°Cap 267 as Amended.
15
1.4.5. Objective of the study
Recognizing that consumers of services often face the imbalances in the education
terms, economic, bargaining power ,social status and bearing in mind that consumers
should have the right of access to non-injurious services, the following shall be the
objective of the study.
1. To determine the Laws on the protection of consumers from negligent
professionals which could pose the risk to their health, economic and
mental predicament.
2. To curb the abusive practices by all the enterprise at the national
levels which adversely affect the consumers?
3. To encourage education and sensitization of consumers of services on
the available redress in cases where they are adversely affected by the
actions of professionals.
4. To encourage high levels of ethical conduct for those engaged in the
delivery of services on a professional basis.
5. To encourage the development of. independent consumer groups and
the development of the well-conditioned atmosphere which provide the
consumers the greatest choice?
1.4.6. Research questions 1. What is the status of the Law on Professional negligence in the Legal
profession?
2. What are the challenges on the reduction of professional negligence in the
Legal profession?
3. Is there institutional flame work in place to reduce on professional
negligence in the legal profession?
4. What should be done to protect the consumers/clients from professional
negligence?
16
1.4.7. Conceptual Flame work The implementation, and monitoring of policies on professional negligence is very
important and considerable care should be taken to ensure that measures on
professional negligence are implemented, Better and unambiguous laws enacted for the
benefit of all classes of the population, particularly the people in the rural areas who
have suffered the predicament due to inadequate access to facilities and information.
All stake holders should obey the relevant laws and regulations of the countries in
which they practice their special callings. They should also conform to the appropriate
provisions of international standards for exercising their occupations to which the
relevant authorities of the country in question have conformed and ratified.
Education and sensitization of the general public who are the potential clients for the
respective professionals is very vital as most of the population in Uganda is not aware
of the existing laws, the respective authorities and the remedies available in case injury
arose from the negligence of the professional.
1.4.8. Significance of the study 1. The report will make the policy makers in particular the government
aware of the gaps in the law on professional negligence.
2. The study will also generate useful information on the rights and remedies
available to the consumers of services who are the potential clients of the
professionals in the particular fields and how important it is for them to be
a aware of the dangers in case the person they have hired to carry out
professional work for them did not exercise the skill of which a reasonable
other professional in that field would have acted.
3. The report will also promote the consumers' access to adequate
information to enable them make proper and well informed choices as
well as the promotion of their social and economic interest and also advise
the person they wish to hire appropriately.
17
1.4.9. Scope of the study The scope of the study in which the study was to identify the laws which are enacted to
protect clients, and ensure that the consumers are well protected and to establish that
the persons offering professional services owes a duty of care to the clients.
1.4.10.Chapterisation.
Chapter one discussed the general Introduction of the research topic, Statement of the
Problem, Objectives of the Study, and the Scope of the Study.
Chapter Two discussed the Literature review of research
Chapter Three discussed the methodology used by the researcher while analyzing the
Law of professional Negligence in the Legal profession in Uganda.
Chapter Four discussed the findings on Professional Negligence in the Legal profession.
The chapter looks at the challenges in litigation, the applicability of the common Law
Doctrines in Uganda, The Remedies Available to injured persons arising out of the
Lawyers Negligence, and the difficulties in the enforcement of the Law and in pursuit of
remedies.
In Chapter Five, the researcher discussed his own recommendations and drew a
conclusion to the issues raised. The researcher also makes some relevant
recommendations not based on bias.
18
CHAPTER TWO:
UTRATURE REVIEW
2.1. Introduction.
There is abundance of authorities available on this field, the researcher consulted
Textbooks, Articles, Journals, and also looked at the institutional flame work on how the
issue of Professional negligence in the Legal profession is being addressed.
2.2. The Acts of Parliament.
2.2.1 The Advocates Act41
This is an Act of Parliament to consolidate the law relating to advocates and to make
general provisions for purposes connected with the legal profession. The Act establishes
the Law Council42 The Act also provides for instances where an Advocate may be
refused a practicing certificate among which; is if the said 43Advocate is being
proceeded against for professional misconduct or for an offence under this Act.
Professional misconduct in this regard includes ·professional negligence. It is the
conduct which is unbefitting of a Lawyer to the detriment of their clients. In such cases,
the Advocate's practicing certificate will be cancelled with tin the meaning of the
Act.~here must however be a primafacie case established against the Advocate.
The Act extends it provisions to the Legal Assistants, and Clerks working with the
Advocates; thus professional negligence arising out of the acts done by the Clerk or a
legal assistant will be imputed on the Advocate since he owes duty of care to the Client.
Once the prima facie case is established,4s-rhe advocate will be admonished, the
advocate be suspended from practice for a specified period not exceeding two years,
the name of the advocate be struck off the roll, the advocate pay a fine not exceeding
ten thousand shillings, the advocate be ordered to pay compensation not exceeding
twenty thousand shillings to any person who has suffered loss as a result of his or her
41 Cap 267 Laws of Uganda
42 Section 2 of Advocates Act 43
Section 12(g) Advocates Act 44
Section 12 of the Advocates Act 45 Section 4 (a-e) of the Advocates Act
19
misconduct. Advocates46 are also prohibited from employing persons whose moral stand
in society has been adjudged to be improper and capable of causing harm or
contributing to potential loss to the likely clients of the Advocate. These provisions are
intended to protect the public from any loss, harm that may arise out of the negligence
of the Legal practitioner. Among others, the Law Council is responsible to exercise,
through the medium of the Disciplinary Committee; Disciplinary control over advocates
and their clerks47to exercise general supervision and control over the provision of legal
aid and advice to indigent persons48
The Act further provides for the circumstances under which a practicing certificate may
be refused49 Among others; If an advocate is a person adjudged to be of unsound mind
under the Mental Treatment Act50;is being proceeded against for professional
misconduct or for an offence under this Act; but-(i) the chief registrar shall only refuse
to issue or renew a practicing certificate, or in the case where a practicing certificate
has been issued or renewed (and notwithstanding section 20) the certificate may be
suspended by the Disciplinary Committee, if the Disciplinary Committee is of the view
that there is a prima facie case against the advocate and the alleged misconduct or
offence is one involving gross moral turpitude51
Advocates practicing certificate may be cancelled on reasonable grounds and his name
will be struck off the roll of advocates52 An advocate commits an offence if he/she
practiced without a valid practicing license53 and in such cases the client is most likely
to suffer loss. The question would suffice as to whether an advocate owes duty of care
to his client by ensuring that He or she is proper before Court? The answer would be in
the affirmative thought in many cases, the courts have accepted and up held the
46 Section 3S (1-3) of the Advocates Act 47 Section 3 (d) ibid 48 Section 3 (e) ibid 49 Section 12 50 Section 12 (b) 51
Section 12 g(i) 52 Section 14 53 Section 1S
20
principle under Article 126(2)e)54 That justice shall be administered without due regard
to technicalities and thus negligence of Counsel has been held not to be visited on the
client. The complaints to the Disciplinary Committee can be made by an Advocate
In Edward Wong Finance Co. Ltd. v Johnson Stokes & Master5Solicitors had
completed a mortgage transaction in "Hong Kong style" rather than in the English style.
The fact that this style was almost universally adopted in Hong Kong did not make it
reasonable or responsible because it did not guard against the risk of fraud. Thus, the
solicitors were liable for negligence because they should have taken precautions against
an obvious risk. A solicitor owes a professional duty of care to the client and no-one
else. He or she is subject to professional rules and standards, and owes duties to the
court as one of its officers.
The Act does not cast Liability on defending counsel in Criminal matters. Case Law has
spoken on this. In E/guzouli-Daf v Commissioner of Police of the Metropoli~6 If
a defendant is convicted after a full and fair trial, the remedy is to appeal. An attempt
to challenge the convictions by suing the defense advocate would be an abuse of
process.
2.3. The Regulations.
2.3.1 The Advocates (Professional Conduct) Regulations The researcher also consulted the Advocates (Professional Conduct) Regulations57 made
under the Advocates Act to analyses the provisions therein and how they are useful to
this paper. Under these rules, the Advocate who receives instructions must not act
unreasonable to delay the carrying out of the instructions received from his/her client
and must conduct business of clients with due diligence, including, in particular, the
answering correspondence dealing with the affairs of his or her clients. 5B-rhe wording is
coached in mandatory terms by the use of "Shall" and thus the rule is mandatory.
54 The 1995 Constitution of Uganda As amended 55(1984) 1 AC 296 "(1995) QB 335 57 Statutory Instrument 267-2 58 Section 2 of the Advocates Professional Conduct Regulations
21
Similarly, where the Advocate wishes to withdraw from a case, he must give notice to
the client, the opposite party, and the Court59.The rules also provide for the Advocates
Duty to appear in Court at all times and where he or she under normal circumstances is
unable to appear, the advocate must instruct his/her partner or professional assistant to
appear and hold brieF0•
Further under these rules, the Liability of the Advocate is cast on him/her personally61
and not any other person. An Advocate is personally responsible for the clients work
and must supervise any other Advocate and other professional staff employed in there
that may be put in position in carrying out the instructions. All acts that are prejudicial
to the client are prohibited including disclosing of clients information to third parties62•
An advocate owes duty of care to his client and the relationship between advocate and
client is fiduciary relationship and the advocate must act appropriately.63and must also
advise the client diligently64 and the said advise must be in the best interest of the
client. The rules cast the duty on the advocate·, not his clerk and not his Legal
assistants.
2.4. Text Books
2.4.1 Black's Law Dictionary The Black's Law Dictionary defines what a profession is; that is a vocation requiring
advanced education and training. A professional therefore is a person who belongs to
the learned art in a characteristically methodical, courteous and ethical manner.65 This
type of is also referred to as malpractice where in this context is an instance of
negligence or incompetence on the part of a professional.66 I do agree with the
treatment given to professional Negligence; it is the omission on the part of the
professional to exercise the skill and calling. Any professional owes duty to his/her client
59 Section 3 (2)a of the Advocate Professional Conduct Regulations. 60 Section 5 (1) and (2) of the Advocates Professional Conduct Regulations 61 Section 6 of the Advocates Professional Conduct Regulations 62 Section 7 of the Advocates Professional Conduct Regulations 63 Section 10 of the Advocates professional Regulations "section 12 of the Advocates Professional Conduct Regulations. 65 Black Law Dictionary at Page 66Biacks Law Dictionary at Page 978
22
to ensure that their clients are not imperiled. The source also was referred to for
meanings of certain words used in this research.
2.4.2 Halsbury Laws67
The researcher was also aided by the Halsbury Laws in this research on the issue to do
with statements of professional men. Where it is written that claims against a person
who makes a misrepresentation may lie in tort for deceit or for negligent misstatement.
A misrepresentation which induces the making of a contract may become a term of that
contract and give rise to a claim for breach of contract. Alternatively a
misrepresentation may be subject of collateral contract. The Liability imposed by statute
for certain non-fraudulent misrepresentation has been characterized as liability Sui
generis, sounding neither in contract nor in tort, but which affords an equivalent
measure of damages to that recoverable in tort for deceit.
2.4.3 Winfield and Jolowiz68
Also aided this research where the researcher related the opinion from the Learned
Authors to the tort of professional Negligence. Among others, the Authors opined, that;
a) Words may cause a person to act in reliance upon them and suffer loss
or damage as result. This is also referred to as Negligent Misstatement.
b) The defendant may knowingly or recklessly make a false statement to
the claimant with intent that it shall be acted upon by the claimant, who
does act upon it and thereby suffers damage. This is also deceit.
c) False statement may be made with "Malice" to some person other than
the claimant, as result of which the claimant suffers damage.
67 45 (2) Para 309 . 68Winfield,Jolowicz, on Tort, 18'h Edition, 2010 by W.V. H. Rogers, Sweet and Maxwell.
23
2.4.4.Salmond69
This source was useful to my research where the learned author enunciates that;
Doctors, Surgeons and Dentists owe to their patients a duty of care in tort as well as
contract. Much as the Learned Author first mentions professions outside the scope of
this research, The Author does expound on the topic where he enunciates, that
professional Man is expected to show a fair, reasonable and competent degree of skill.
2.5. Published Legal Journals
2.5.1 Alison Murray70
Where the writer states, that a successful claim against a barrister requires the usual
elements in negligence to be proven; That the Lawyer owed a duty of care, That the
Lawyer breached that duty of care through mistake or negligence, the causation and
the damages. He further opines that the most common mistake Lawyers make is
missing Limitation dates and thus that would amount to professional Negligence. But
the writer recognizes the difficulty in suing a Lawyer which he describes as a very
complicated venture than merely establishing the Legal error. The claimant thus must
not only prove the error but also that had it been not the error in question, the claimant
could have not lost the case.
2.5.2 T.G. Bastedo71
Says that the legal profession is ubiquitous, pervades most aspects of the social policy,
and through its very role is perhaps peculiarly vulnerable to public attack. Unlike the
medical profession, its greatest competitor for tangible recompense and prestige, the
actions of lawyers affect others in an economic sense. For all of these reasons the
adequacy of government of the profession is being questioned. The government of any
profession must have as its primary aim the protection of the public, and one
substantial aspect of this is the disciplining of incompetence. A second is ensuring that
the public will be recompensed for any unfortunate experiences in dealing with
"Salmond on the Law of Torts 16'" Edition, London, Sweet and Maxwell1973, page 232 70 Alison Murray, Vancouver BC, ISSUE 11S December 2007 71A Note on Lawyers' Malpractice: Legal Boundaries and Judicial Regulations." Osgoode Hall LawJourna/7.3 (1970) :311-321.http://digitalcommons.osgoode. yorku.ca/ohlj/vol7/iss3/4.
24
members of the profession. To a large extent, the standards of incompetence are set by
the courts, and it is these standards which will determine ultimately who will be
recompensed, and who may be subject to discipline.
2.6.Published Legal Articles
2.6.1 John L. Powell Q.C.72says; A "Professional" is an acquisitive concept, acquisitive of aspirations and expectations -
but also of liabilities. Claims for professional negligence are now common. Indeed they
will become more so. This will be a product of increasing demand for their services,
specialisation, higher standards and intolerance of bad performance by highly educated
societies. He further says, that; A professional person is under a duty to exercise
reasonable care and skill. The required standard of care and skill is that of the ordinary
skilled person of the same discipline. The Learned writer advances a criticism where in
his own opinion; he avers that the duty of care and skill has clothed the law relating to
professional negligence with an apparent coherence and exclusivity of analysis. Indeed,
it has nurtured a tort culture which has obtruded on the contractual analysis which may
otherwise have prevailed. Even the classification of relevant case law under the title
professional negligence immediately encourages association with the tort of negligence.
"Professional liability" is a more neutral and accurate title. The tort culture is not the
product of language alone. More significant factors are the centrality accorded to the
duty of care and skill and its attribution to both contract and tort.
2.6.2 Rose E.J, Alfred. C/3
In this Article, the Author opines that; the tort of negligence illustrate the purpose of
the law of torts in relation to Advocates; to adjust Advocates' losses and to afford
compensation for injuries sustained by a client as a result of the professional
misconduct. The Authors further Lament; That Neither the Advocates ordinance nor
East African case law defines what constitutes" professional misconduct." Any kind of
72 Professional Negligence, The Changing Coast Line of Liability. 7373 The Tort of negligence on Advocates in Tanzania, Po. Box 184 Muzumbe Tanzania,www.raha.com
25
enlighten on the matter is to be found in English cases. Even in England the phrase has
not rendered itself to an easy definition, as can be inferred from the following cases.
The researcher concurs partially with the authors in this Article.
2.7. The Common Law Doctrines Common Law doctrines are authoritative sources in Legal Research. The Common Law
Doctrine of Duty of care establishes thatA professional person is under a duty to
exercise reasonable care and skill. The required standard of care and skill is that of the
ordinary skilled person of the same discipline. This duty is in many cases referred to as
the Bolam principle after McNair J.'s eloquent expression of it in a direction to the jury
in a medical negligence case of that name74 The duty arises not only as an implied (if
not express) term of the contract between the professional man and his client. It may
also arise in tort. So a professional may owe a duty of care to his client running
concurrently with the like duty in contract. He may also owe a duty of care in tort to a
third party. Breach of the tortious duty gives rise to liability in the tort of negligence.
The duty is usually invoked in support of the proposition that a professional does not
impliedly agree to produce a particular result. He will be taken as having done so only
if he has expressly so agreed. Otherwise the client's bargain is rather the product of
the care which an equivalent professional could reasonably have been expected to
exercise in the same circumstances. The exercise of such care may be consistent with
failure to achieve the desired result. The paradigm is a doctor's failure to cure his
patient.
The latter point impacts on the measure of Joss consequent upon failure to exercise
care. The application of the restorative principle in contract entails that the claimant is
entitled to the benefit of his bargain, whereas its application in tort entails that he is
restored to the position which he would have occupied but for the tort. In professional
negligence cases the respective consequences of applying the contractual and tortious
measures coincide. This does not mean that tlie tortious measure is adopted in
74 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582
26
preference to the contractual measure. The position of having care exercised
represents both the contractual bargain and the position which the claimant would have
occupied but for the defendant's negligence.
The professional is required and owes duty of care to his/her Client to75:-
a) To be skilful and careful;
b) To advise his/her client on all matters regarding to his/her retainer so far as may
reasonably and necessary;
c) To protect the interest of the client;
d) To carry out all his instructions by proper means;
e) To consult his client on all questions of doubt which do not fall within the express
or implied discretion left to him;
f) To keep his client to such an extent as may be reasonably and necessary
according to the same criteria.
2.8. Case Law The Laws enacted by Parliament in Uganda are limited in relief and generary provisions
to do with professional Negligence; resort has to be made to decided authoritative
cases which have established precedent in this area. Most of the available cases are all
England cases but Uganda being a common Law country the authorities are persuasive
and could be used for both scholarly and litigation purposes. The issue is can the
injured the plaintiff get a remedy, is yes under which Law?, is the Law Adequate in such
cases, What impact has created. There abundance of authorities in this topic all of
which could be invoked. Henderson v Merrett Syndicates Ltd""rhe court
expounded on the relationship between Contract and the Tort in Professional
Negligence Claims and the quantum of damages that will be awarded by Court, Bolam
v Friern Hospitaf'7Establishes the basis for the claims and under which the standard
of care could be raised. The Bolam case is a precedent on medical negligence but the
75 The Verdict Claims against Barristers and Advocates, Article by Allison Murray, Vancouver BC, Issued 15, May
2007. 76[1995]2 AC 145 77 (1957) I WLR 583
27
principles established there in are applicable in the general on professional negligence.
Hedley Byrne & Co Ltd v Heller & Partners Lttf'8created the rule of "reasonable
reliance" by the claimant on the skills of the defendant. Court was of the view that;
"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."
Case Law has further extended and established precedent on the principle of negligent
statements made by the professional, in Caparo Industries pic. V
Dickmai?9established Liability on the part of the professional for negligent
misstatements. James McNaughton Papers Group Ltd. v Hicks Anderson &
ccfOWhere the adopted a more restricted approach, focusing in the adviser's actual and
constructive knowledge of the purpose for which the statement was made. Thus, the
duty was to be limited to transactions or types of transactions where the adviser knew
or ought to have known that the advisee would rely on the statement in connection
with that transaction without obtaining independent advice. In Henderson v Merrett
Syndicates Ltd Court established that it also has to be shown that the advisee did in
fact reasonably rely on the statement without using his own judgment or obtaining
independent advice.
Case Law establishes precedents on the liability for medical practitioners thus; In the
Bolam case81The Court must only compensate for the injuries caused by negligent
treatment, not for any underlying condition and that, the defendant had to have acted
in accordance with the practice accepted as proper by a "responsible body of medical
men. The Courts in later days following the Bolam opined that a standard of practice
recognized as proper by a competent reasonable body of opinion." To determine
whether a body of opinion is responsible, reasonable or respectable, the judge will need
76(1964) AC 465 "(1990) 2 AC 605 "(1991) 1 AER 134 61 Supra
28
to be satisfied that, in forming their views, the experts have directed their minds to the
question of comparative risks and benefits and have reached a defensible conclusion on
the matter thus; in Hucks v Coltf/2 Where a doctor failed to treat a patient who was
suffering from septic places on her skin with penicillin even though he knew there was
a risk of puerperal fever. Court Opined that ""When the evidence shows that a lacuna in
professional practice exists by which risks of grave danger are knowingly taken, then,
however small the risk, the court must anxiously examine that lacuna-particularly if the
risk can be easily and inexpensively avoided. If the court finds, on an analysis of the
reasons given for not taking those precautions that, in the light of current professional
knowledge, there is no proper basis for the lacuna, and that it is definitely not
reasonable that those risks should have been taken, its function is to state that fact and
where necessary to state that it constitutes negligence. In such a case the practice will
no doubt thereafter be altered to the benefit of patients.
Case Law has also established liability for legal practitioners. Ross v. Caunter$13 holds
that lawyers can owe a duty of care both to their clients and to third parties who suffer
loss or damage, a solicitor who is instructed by a client to carry out a transaction that
will confer a benefit on a third party owes a duty of care towards the third party in
carrying out that transaction, in that the third party is a person within his direct
contemplation as someone who is likely to be so closely and directly affected by his acts
or omissions that he can reasonably foresee that the third party is likely to be injured
by those acts or omissions, Gran Gelato Ltd. v Rich cliff (Group) Ltcl'4 The case law
also indicates the necessity for firms of solicitors to keep detailed attendance notes
.Ridehalgh v Horsefielcl'5 Court opined that orders could be made against barristers
personally and not the entire Law firm where the said practitioner is a partner.
"(1993) 4 Med. L.R. 393 "[1979] 3 AER 580 "(1992) Ch 560 "(1994) Ch 205
29
In Kirima Estates (U)ltd. v. Korde86. In this case the defendant, an advocate,
advised the appellant company to accept a mortgage which he valued at Shs. 120,000
in return for which the 13appellant company gave shs. 60,000. The mortgage, however,
failed to pay and on selling the mortgage the appeflant could only recover shs. 45,000.
They consequently filed an action against the defendant advocate urging that he as an
Advocate had been negligent in his duty in advising them as to the value of the
property. It was further argued; inter alia that the charge of negligence was vindicated
by his failure to engage a qualified surveyor or estate agent to assess the property and
to make local inquiries as to the value of similar properties in the area. The court held
that the property was not adequate security for Shs.60,000 at the time the loan was
given. Consequently in assessing the value of property at120,000, the defendant had
failed to exercise that due care skills, and diligence expected of him in the discharge of
his duty to the plaintiff company as his client. He had failed to make inquiries as to the
value of the property and also failed to engage the services of a surveyor or estate
agent thereby failing to have a proper valuation of the property made before advising
the client. Therefore, upon the evidence, the defendant was not only negligent in the
discharge of his duty but also committed a breach of that duty.
Similarly case Law has provided authorities as regards to the Liability of Architects,
Accountants, Surveyors, Engineers and Auditors in tort while carrying out their skills in
the respective professions. In Edgeworth Construction v Lea and Walji87 engineers
were held liable to contractors who relied on misstatements in tender documents.
2.9. Institutional Frame Work.
2.9.1 The Law Council This is established by the Advocates Act. The Act provides for the functions of the Law
counci188 The Functions89 of the Law Council are:-
"(1962) EA22 87 [1993] 66 B.L.R.56 (Canadian Supreme Court 88
Section 3 ibid 89 Section 3 (a-e)ofThe Advocates Act Cap 267
30
(a) To exercise general supervision and control over professional legal education in
Uganda;
(b) Without prejudice to the generality of paragraph (a), to approve courses of study
and to provide for the conduct of qualifying examinations for any of the purposes of this
Act;
(c) To advise and make recommendations to the Government on matters relating to the
profession of advocates;
(d) To exercise, through the medium of the Disciplinary Committee, disciplinary control
over advocates and their clerks;
(e) To exercise general supervision and control over the provision of legal aid and
advice to indigent persons; and
(f) To exercise any power or perform any duty authorized or required by this or any
other written law.
The Law Council currently is housed at Georgian House on George Street in Kampala.
The Disciplinary Committee which is established by the Advocates Act90 also is housed
at the same building on Level 8.AII Complaints against Advocates91 are directed to the
disciplinary Committee and could be made by the Law Council or any Person92The
Disciplinary Committee upon reaching it final decisions and finding an Advocate Guilty
of professional misconduct will order;-
a). That the advocate be admonished;
b). that the advocate be suspended from practice for a specified period not exceeding
two years;
c). That the name of the advocate be struck off the roll;
d). that the advocate pays a fine not exceeding ten thousand shillings;
e). that the advocate pay compensation not exceeding twenty thousand shillings to any
person who has suffered loss as a result of his or her misconduct. or combination of all
of the orders.
90 Section 18 of the Advocates Act Cap 267 91 Section 20 of the Advocates Act Cap 267 92 Section 20,3,(a-e) of the Advocates Act Cap 267
31
The committee may also make orders as to costs or witness expenses93May order for
attachment of the immovable and moveable property of the advocate by sale and
distress,94 Compensation and restoration of the property lost95 by the injured claimant
against the Advocate for professional misconduct. The Law Council is open to everyone
and the general Public is being sensitized to not withdraw or refrain from reporting
cases of professional Negligence on the Part of the Advocates they hire.
2.9.2 Uganda Law Society ( ULS) This is a society of Lawyers; It plays a vital role in the maintenance of professional
ethics in the legal profession. The society works along with other sectors in the area of
Law. It is therefore important to recognise the role of Uganda Law society on
professional negligence in the legal profession.
2.9.3 Justice Law and Order Sector JLOS96
This is sector wide approach wide approach which brings together 17 institutions whose
primary mandate is the administration of justice and maintenance of Law and order as
well as the promotion, protection and respect for Human Rights.
Its objectives are to promote a strong, harmonized and consistent flame work, policy
and regulatory framework conducive to JLOS operations national development, To
enhance access to JLOS services particularly for vulnerable persons, and To Promote
the observance of Human rights, and accountability. One of the salient priorities of
JLOS is to empower citizens.
The Justice and order sector is versioned to ensure that people in Uganda live in a Safe
and Just Society and to Improve the safety of the person, security of property,
observance of human rights and access to justice for accelerating growth, employment
and prosperity.
93 Section 20(5) of the Advocates Act Cap 267 94 Section 20(6) of the Advocates Act Cap 267 95 Section 20(8) of the Advocates Act Cap267 96
www.jlos.go.ug
32
Participation/ empowerment and ownership through mechanisms that enable all JLOS
institutions to access and control structures and processes that transform their outputs
into desirable sector outcomes
Growth and equity in service provision to rem.ove the gender/ age1 social and
geographical disparities in the distribution of benefits from JLOS SIP III investments;
Deepening and strengthening de-concentration in line with the overarching policy of
moving political and governance structures nearer to the people; Transparency in the
partnership; Accountability to stakeholders; and Excellence in implementation processes
and outputs.
Through the implementation processes/ the Justice Law and Order sector has ensured
that the Laws which are enacted by Parliament are implemented equitably. A law which
cannot be implemented is no Law. All professions in Uganda are regulated by an Act of
Parliament/ these respective Laws establish relevant bodies to regulate the professions
thereof1 but great difficulty would be encountered if the enforceability and
implementation mechanism is frustrated. The JLOS has thus bridged this gap.
Also with the sensitization awareness campaigns enables the poor and the un educated
to know and reach Justice. An ignorant farmer1 who grows his maize1 raises enough
funds and wishes to put up a responsible home would suffer serious predicament in
losses if the Engineer he contracted did not perform to the standard of the prudent
learned engineers thus resulting into losses.
2.10. Conclusion.
Even though the general objective standard of care cannot come down 1 it can be raised
where the individual defendant has expressly or impliedly represented skills and abilities
in excess of the ordinary person. It is an unfortunate fact of life that some professionals
prove to be negligent because even those with the most experience can make a
mistake. The consequences to their clients can be disastrous. Thus1 professionals
providing services in a wide range of situations/ from surveyors and estate agents to
33
doctors, solicitors, accountants, financial services providers, Information Technology
professionals, patent agents, etc., will be judged by the standards of those claiming to
have that same set of skills and abilities. There are technical issues involved however in
cases like for suite brought against A Lawyer. Allowing civil actions is likely 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. But looking at the of fore going Laws, Regulations, Textbooks, Journals,
Articles, and Institutional Bodies, Case Law and doctrines of equity, Professionals owe a
duty of care to their clients.In Lanphier v Phipo$'7 Tindal C.J Held that "Every person
who enters into a learned profession undertakes to bring to the exercise of it a
reasonable degree of care and skill. He does not undertake/ if he is an attorne~ that at
all events you shall gain your case/ nor does a surgeon undertake that he will perform a
cure; nor does he undertake to use the highest possible degree of care/~
97(1838) 8 C. & P. 475.)
34
CHAPTER THREE:
METHODOLOGY
3.1. Introduction The researcher adopted what is referred to as doctrinal research having identified it to
be one of that kind. A doctrinal research is said to be pure Legal research aimed at the
investigation of legal principles, rules, concepts or doctrines with the view to
contributing to legal knowledge. T he researcher will thus research in the Law or
otherwise researching with in the Legal Flame work of the Law with the hope of
generating, validating, expanding and adding knowledge to the law. Under doctrinal
legal research the research concentrates on in depth investigation and or examination
of the pillars of Law, by so doing, the researcher will thus be interested in the primary
sources of information or materials, Legislations ( statutes, statutory instruments) and
the leading Judicial decisions which are referred to as the precedents. A properly
equipped Law library will be of greater importance to the researcher. The researcher
organized th is study around legal provisions, principles, concepts or doctrines and
judicial statements relating and reflecting thereon, with the aim of studying the said
case Law and statutory law to find the law, consistency and certainty of the law, looking
into the purpose and policy of the law that exists, and aims to study the legal
institutions on professional negligence in the legal profession.
3.1.1 Systematic investigation A systematic effort was required to ascertain or find the law on the professional
negligence in the legal profession thus; the researcher was required not only to locate
and look into the relevant acts of parliament but also to locate the secondly legislative
instruments in the form of rules, regulations, orders, directions, notifications, by laws,
and judicial pronouncements. Under systematic legal research the system is set of
interrelated parts. one part links the other and all of the parts work together to make a
whole system which the topic under investigation.
35
3.1.4. Analytical Investigation Finding Law on particular subject involves intensive analysis of legal instruments and
judicial pronouncements. The researcher took considerable time looking at the Law, the
Acts of parliament, statutory instruments, and judicial decisions. The researcher thus
used the facts or information which is already available and made the analysis to make
a critical evaluation of the material. The researcher tried as much as possible to first
collect the relevant data, information, statutes and applicable cases in the area of
professional negligence centering at the Legal profession and proceeded to examine the
mass of information available with the view to bringing out the salient issues and apply
them to the topic under investigation. The researcher was able to bridge the gaps and
the ambiguities in the law though the systematic analysis, since research reveals the
gaps ambiguities in the law and where relevant the recommendations made thereof
serve as feed back to the legislature who could thereafter amend the law.
3.1.5. Qualitative Method This research was based on empirical data or the information which already exists. It
relied on observation of the phenomenon as perceived in experience. This was based
on the exploratory approach aiming at producing a comprehensive and detailed
description of the area under investigation. A successful qualitative research depends
on the researchers skills such as being sensitive, open minded, responsive to
contradictory evidence and being a good listener.
The major tools that were used in this kind of research were;
I. Legislations of Parliament and the regulations thereof
II. Institution
III. Judicial precedents
IV. Reference to other Published Authoritative Material
This therefore implied the subjective involvement of the researcher.
36
3.1.6. Review of the identified research Material
The researcher reviewed the material gathered that is to say the relevant legislations,
regulations made, the text books, articles, journals, and also consulted the institutions
involved on professional negligence in the legal profession.
3.1.7. Conclusion
The research design varies by various fields and topics under investigation. In many
cases some researchers combine all and pick out one form of analysis to better answer
questions which cannot be studied in Laboratory. The researcher thus combined the
systematic approach, the analytical approach, and the qualitative approaches in coming
up with this report. Doctrinal research mandates the legal researcher to locate the
required statutory provisions and judicial reflections thereon that could have bearing on
the legal doctrine, the concept or the rule under inquiry. The provisions of the
legislations, regulations and judicial decisions constitute the basic data for doctrinal
legal research. However, the researcher in this report also considered secondary source
materials such as the published articles, legal periodicals, text reference books, for
further insight in the subject under inquiry.
37
0
CHAPTER FOUR:
FINDINGS.
4.1 Introduction The Law has established that a professional is required to meet the standard of the
ordinary skilled man exercising and professing to have the special skill in question. An
error of judgment will not amount to negligence unless it is one that would not have
been made by a reasonably competent professional with the standard and type of skill
of the defendant, acting with ordinary care98• The Laws enacted by Parliament in
Uganda attempt to incorporate this principle and with the abundance of decided
authorities both in Uganda and outside Uganda and the growing international demand
for services from Uganda, and the need to protect the public who are the potential
clients of the persons professing to the growing number of professions from injury
weather physical, economical or mental arising out of the negligence of the said
professionals the laws has had a positive impact on professional negligence through the
various mechanisms established.
4.2. Applicability of Common Law Doctrines in Uganda.
The researcher found out that; Professional negligence is a breach of the duty of care
between professionals and their clients. The duty of care is a common law arrangement
where the client expects a level of professionalism and standards commonly held by
those in the profession. The most common term for professional negligence, is that
known as professional malpractice in medical malpractice.
The Common Law duty of care is a broad legal definition that protects individuals from
others that engage in activities that could potentially harm others if proper precautions
are not taken. This ranges from operating a moving vehicle to performing surgery. This
also covers situations where individuals may suffer economic or emotional damage due
to poor advice or conduct. a manufacturer has a duty of care to the consumer as the
consumer will assume that product he or she is buying is safe and adheres to standards
98Halsbury's Laws of England Vol 78 Para 23
38
set by the government and common practices. The standard for this was set in the case
of Donoghue v Stevenson where a ginger beer manufacturer allowed a snail into
Stevenson's bottle. British courts ruled that Steve·nson was owed a duty of care by
Donoghue to ensure the safety of his manufacturing process to his customers.
One of the prime functions of negligence law is compensation for occurrences to
persons who are victims of someone else's faulty conduct. The Law provides for the
avenues through which the negligent professional will be held liable. The Advocates Act
and the regulations made there under provides for orders of compensation99 the
advocate will be made to pay compensation to the injured part due to his negligent
acts, even though the compensation here is not adequate. Thus the Law has improved
on the service delivery.
Another objective of negligence law is to serve as a deterrent by reducing the frequency
of occurrences that will be claimed to be mistakes yet they are arising out of the
Professional malpractice of the professional and thus everyone who carries out his
profession will do so with the most required skills bearing in mind of the cost and
embarrassment hejshe is likely to face if he omitted to do so.
Negligence law encourages people to behave carefully in order to avoid liability. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbor.
4.2.1. Challenges in Litigation The Researcher found out that by Making the Law operates in a stricter sense by
allowing civil action is likely to produce a flood of claims and, even if some claims did
emerge, a claimant alleging for example 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 professionals are simply struck out. This might be the fact why
99 Section 20,4(e)
39
most legislations are not so strict and even do not give a proper definition of
professional misconduct, neither do they directly address professional negligence.
In protecting the profession of Law, in 1846,the Chief Justice of Ontario once said 100''The profession of law would be the most hazardous of all professions if those who
practice in any of the branches were to be held strictly accountable for the accuracy of
their opinions". No one is willing to work under that tension and fear of clients filling
flood of claims and complaints against them.
4.2.2. Remedies Available to injured Persons arising out Negligence of Legal Practitioners. The researcher found out that, there are remedies available to the injured parties in
cases of professional Negligence in the Legal profession.
Under the 101Advocates Act102an advocate could be ordered to pay compensation, to
the injured Party for professional negligence or otherwise misconduct, Payment of the
costs103 incurred by the claimant in tendering of evidence and transportation of
witnesses. The Disciplinary Committee may issue a warrant for the levy of the amount
of any sum ordered to be paid by virtue of this section on the immovable and movable
property of the advocate by distress and sale under warrant and the warrant shall be
enforced as if it were a warrant issued by the High Court. 104 The Disciplinary Committee
may order any advocate against whom a case of professional misconduct has been
made out to restore any property in his or her possession or under his or her control to
the person appearing to the committee to be entitled to the property. 105These orders
are executable as if they were orders or Decrees of the High court.
At common Law even a third Parties can sue for damages applying the principle in
Hedley Byrne & Co Ltd v Heller & Partners Ltd and Donoghue v Stevensod06,
100 Alexander v. Small and Gavan (1846) 2 U.C.R. 298, 300, Cited in A note on the Lawyers Mulpractice:The Legal Boundaries and Judicial regulation by TD.Bastedo available on line at http://digitalcommons.osgoode.yorku.ca/ohlj 101 Advocates Act cap 267 Laws of Uganda 102 Section 20,4( e) of the Advocates Act 103 Section 20(5) of the Advocates Act 104
Section 20(6) of the Advocates Act 105 Section 20 (7) of the Advocates Act 106
( 1932) AC 562
40
a solicitor who is instructed by a client to carry out a transaction that will confer a
benefit on a third party owes a duty of care towards the third party in carrying out that
transaction, in that the third party is a person within his direct contemplation as
someone who is likely to be so closely and directly affected by his acts or omissions that
he can reasonably foresee that the third party is likely to be injured by those acts or
omissions but the proximity principle is paramount, Thus, in general, when acting for
the seller of land a solicitor does not owe a duty to the buyer
The claimant could proceed against the professional directly for recovery Ridehalgh v
Horsefieltf07ruled that orders could be made against barristers personally and not the
entire Law firm where the said Advocate is practicing in partnership together with
others.
4.2.3. Difficulties in enforcement and Pursuit of remedies
The researcher found out that in cases for negligence on the part of Lawyer, the courts
are reluctant to award damages to third parties Further, and perhaps most strikingly, it
has been held that a solicitor advising a client about a proposed dealing with his
property in his lifetime owes no duty of care to a prospective beneficiary under the
client's then will who may be prejudicially affected. In Clarke v Bruce Lance &
Co.108,it was recognized that solicitors may sometimes give advice which directly
prejudices the interests of others who have a relationship with the client But, so long
as this advice is consistent with the duty owed to the client, there will be no liability to
that third party. Exceptionally, solicitors have been held to have assumed a
responsibility towards the claimant, i.e. in situations analogous to a holding a fund on
behalf of both sides of a dispute pending its resolution.
In cases of Legal Negligence the Doctrine does not operate in criminal matters
prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v
10'(1994) Ch 205 108(1988) 1 WLR 881
41
Commissioner of Police of the Metropolis'-09. ·If a defendant is convicted after a
full and fair trial, the remedy is to appeal. An attempt to challenge the convictions by
suing the defence advocate would be an abuse of process
It is extremely difficult to define that exact limits by which the skill and diligence which
A Lawyer for instance undertakes to furnish in the conduct of the case is bounded or to
trace the precisely the biding line between the reasonable skill and diligence which
appears to satisfy his undertaking. It is a question of degree, and there is a borderline
with in which it is difficult to say whether a breach of duty has not been committed.
The plaintiff has to demonstrate that the solicitor has strayed from the permissible
posture of errors of judgment and trespassed upon the road of negligence thus making
it complicated for the injured client to get redress.
The research found out that, the relevant government bodies tasked with the regulation
and enforcement of ethical standards among professionals in their respective fields, lack
adequate funding and thus their operations are hampered due to the high cost involved
for example in publishing literature in the bid to sensitize the public about their rights.
It was also discovered that a large number of the population of Uganda have no
knowledge about the respective bodies which are mandated to regulate and maintain
ethical standards among the professionals. Even among the educated population, some
people have no knowledge what so ever about these bodies and have suffered silently
with no one to address their grievances. Most of the cases are reported to the Police
and the same cases are buried there at Police Stations, because the claimants did not
know where to report.
Also some people fear to report professional negligence cases, the only ones which
have come up are those involving fatal occurrences but most of the cases occurring are
contained there. Some people fear Lawyers . A lawyer should be respected if he earns
"'(1995) QB 335
42
the respect in question but not to be feared. They fear Lawyers winning cases against
them and costs being enforced against them by the Lawyers once they lose in claim.
The researcher found out that people have no access to the Law and even where some
accessed, the Law is complicated to interpret and understand. The most affected are
those in villages and remote areas. The Law needs not to be enacted to meet only
certain class of persons; it should be able to apply to all persons irrespective of their
status.
The researcher found out that there are Laws enacted by Parliament and whose
provisions could be interpreted to provide for professional Negligence in the Legal
Profession but there are Lacunas in these Laws, and too much resort has to be made
on Common Law doctrines of Negligence which poses a great hardship in litigation.
4.3. Conclusion Tindal C.J "Every person who enters into a learned profession undertakes to bring to
the exercise of it a reasonable degree of care and skill. He does not undertake, if he is
an attorne~ that at all events you shall gain your case, nor does a surgeon undertake
that he will perform a cure/ nor does he undertake to use the highest possible degree
of care (Lanphier v Phiposl10
In the case of an attorney, it reflected the need to take account of the cooperation of
the client, the available evidence, the credibility and unpredictability of witnesses, the
resources deployed by the parties and other factors beyond the attorney's control.
Likewise in the case of other professionals the selection of the duty is explicable in
terms of an assessment of features specific to their occupation.
An advocate is expected to show the average amount of competence normally
possessed by other advocates who also defend clients. If such competence falls short of
the standard
110(1838) 8 C. & P. 475.)
43
0
required, the advocate as a professional adviser may be held guilty of some misconduct
and be liable for a tort of negligence.
The duty extends to third Parties like for the case of solicitors applying the principle in
Hedley Byrne & Co Ltd v Heller & Partners Ltd and Donoghue v Stevensoff-11,
a solicitor who is instructed by a client to carry out a transaction that will confer a
benefit on a third party owes a duty of care towards the third party in carrying out that
transaction, in that the third party is a person within his direct contemplation as
someone who is likely to be so closely and directly affected by his acts or omissions that
he can reasonably foresee that the third party is likely to be injured by those acts or
omissions
111 [1932] AC 562
44
CHAPTER FIVE:
RECOMMENDATIONS AND CONClUSION
5.1 Introduction
The researcher has found out that there exist the Laws and regulations to deal with the
professional Negligence in the Legal profession in Uganda. Abundance of English cases,
The writs in Law Journals, Law Articles, Text books, doctrines of common Law point to
the idea that the Lawyer owes duty of care to the Client from whom he/she has
received instructions. The researcher having looked at the said Laws, further looked at
the relevant institutions which play a role in the maintenance of professional ethics in
the legal profession and analyzed the same where loopholes in the Law were identified,
challenges hindering the implementation of the Law, and came up with the following
recommendations which could aid in the maintenance of the standards of the Legal
Profession.
5.2. General Recommendations The Government should provide adequate support to sectorial authorities under the
relevant bodies entrusted with the promotion and regulation of ethical standards in the
professions practiced in Uganda. The Budget of Uganda in each financial year should
allocate more funds to these bodies. The Bodies in Particular include, The Law Council
for Uganda, If funding is improved the relevant departments and bodies should be able
to improve and enhance on performance and to maintain partnership and support to
enable to enable a faster registration of the reforms sought. In the Report112-rhe causes
for the Case Backlog was attributed to the Law funding of the Law Council Department.
This increased funding will cater for the increased sittings.
There should be a doubled effort in combatting corruption by bringing to book all
corrupt officials in these bodies who have greatly contributed to the low Ethical
standards which have contributed to the Low levels in exercising professional skills. It
112 Performance Report on case Backlog Reduction in the Law Council Department Presented at the Review Conference for the JLOS Case Backlog Quick Wins Reduction Program, At Imperial Royale Hotel Kampala on March 7'h 2011 By Margret Apiny Acting General Secretary Law Council.
45
would be injurious to the public if the bodies keep maintaining names of practitioners
on the rolls in their respective departments wher~ such practitioners deserved to be
struck off to prevent further spread of their incompetence.
There is also need to increase in the sensitization flame work to enable the unreached
and the illiterate persons know their rights to redress once they establish that the injury
suffered at a given point and off course depending on particular circumstances to the
relevant field and the profession they contracted arose from the Negligence of the
professional contracted Most of these are the people in villages where the access to
facilities and information is quite difficult. All stake holders; civil society organizations,
the Private sector, the Government should play an active role in this.
The relevant Laws governing and whose provisions provide for the regulation of
different the Legal profession professions in Uganda need to be translated in Local
Languages and made available to the whole country to make it possible for the illiterate
to know. It is true that ignorance of the Law is no defense but the interpretation in this
sense should not be done to the detriment of the poor and illiterate persons who are
most likely to suffer because of the Lack of knowledge as to their rights while dealing
with professionals.
The relevant statutory body; The Law Council established under the Advocates Act113
need to extend their operation by opening up upcountry offices other than being
confined in Kampala and making it difficult for people from distant places to access
justice and remedies available to them because of the cost of transportation, housing
and feeding while pursuing a claim against a professional. The offices need to be
established and complaint desks thereof established and with enough staff to handle
the complaints.
The researcher recommends the Amendment of the Advocates Act14and the
Regulations made there under to empower the Secretariat to determine the matters
113 Cap 267 Laws of Uganda 114 Cap 267 Laws of Uganda
46
which should be prosecuted just like it was before the amendments of the Advocates
Act. The amendment should also possibly address the issue of quorum such that part
heard matters should be able to continue as long as there is a member of the previous
quorum still serving on the Committee.
The researcher recommends Capacity building through training for both the members
and the prosecutors to enable them adapt to faster ways of handling matters. We
believe the training would also equip the members with the values, principles and goals
which would go a long way in creating and facilitating a faster system of handling
complaints.
Study tour in other relevant jurisdictions to be undertaken to equip the members and
the Prosecution with the best practices for improved performance.
Taking drastic disciplinary action against advocates with several complaints. Such
measures include: both definite and indefinite suspension from legal practice and
compensation of any loss caused.
5.3. CONCLUSION
With the rapid growing economy, and with the growing Technology, there will be more
professions coming up. Human skill is improving every hour unlike in the past when the
only fields regarded as professions were Law and Medicine and perhaps Ministry. The
current trend goes beyond that assertion and thus the need to protect the public from
the likely negligence. The Law must play a vital role, in the protection of the public who
are the potential clients of the professionals practicing their respective professions. In
the country where most people now consider money gain other than the quality service
the degree of protection need to be above what is sofa accorded. Professionals
providing services in a wide range of situations, from surveyors and estate agents to
doctors, solicitors, accountants, financial services providers, Information Technology
professionals, patent agents, etc., will be judged by the standards of those claiming to
have that same set of skills and abilities.
47
Professionals are said to be people who exercise a calling and these calling must be
exercised with greater skills and care to avoid any injuries that may arise from mere
failure to act as a prudent profession in the relevant field the particular time and with
the particular facts would have acted. It is without doubt and as the abundance of
authorities have established that the Judgment is that of the ordinary Man but that
regard is given to
In the115Where 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. ''There are several features that characterize the
place of the legal practitioner in society. These relate to the various duties that attach
to advocacy: duty to his client, to the court, and to society. Sir Edward Marshall Hall in
his biography is quoted as saying116: ''Now it is difficult for a man, however wise or
eloquent to speak for himself, when fortune, reputation, happiness, life itself, are in
jeopardy and rest on the decision of, sworn before God to find an impartial verdict from
the evidence brought before them. Hence has arisen the honorable and necessary
profession of the advocate; it is indeed a high and responsible calling for into his
keeping are entrusted the dearest interests of other men. His responsibility is wider in
its scope than a physician's and more direct and individual than that of a statesman; he
must be something of an actor not indeed playing a well-learned part before a painted
scenery, but fighting real battles on other men's behalf in which at any moment,
surprises may render all rehearsal and preparation futile'~
Lord Macmillan, formerly of the House of Lords, Classified the duties of the Advocate as
115Hedley Byme & Co Ltd v Heller & Partners Ltd (1964) AC 465 u'Marjoribanks, E. Famous Trials of Marshall, London; Penguin at p. 9.
48
Five-five- fold: In the discharge of his office the advocate has a duty to his client, a
duty to his opponent, a duty to the court, a duty to himself and a duty to the state.
Judge
Mwalusanya117 argues that Lord Macmillan could and some say he should, have
included other duties in the already formidable list. In the circumstances, therefore, the
advocate's position is far from enviable: "a good advocate must be histrionic crafty,
courageous, eloquent, quick-minded charming and a great hearted. He is not a mere
mouthpiece of his client. His office is a higher to consider him in that light is to degrade
him. He gives to his client the benefit of his learning, his talents, and his judgement.
Advocates are Officers of the court and their main duty is to assist the court in the
administration of justice. Their duty is to see that justice is administered fairly and
Fearlessly in this country. Whenever they are instructed to represent a person say on a
criminal charge, their duty is first to the court and then to the accused person. Where
they believe that the client is innocent they must at their disposal see that he is not
convicted for an offence which he has not committed.
But it is also the duty of Advocates to advise their clients on what the laws of this
country are, so that if under the law their clients have committed offences, although he
may not think of so himself, Advocates are required to advise them to plead guilty.
Under the Law, an advocate is expected to show the average amount of competence
normally possessed by other advocates who also defend clients. If such competence
falls short of the standard required, the advocate as a professional adviser may be held
guilty of some misconduct and be liable for a tort of negligence.
117KassimManywele v R Criminal Application No. 39 of 1990 H.C.T Dodoma at p. 20 of typedJudgement.
49
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Halsbury Laws of Enrland 7(1) 41hEdn Para 905,912-914 on Auditors Duties & Auditors
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Halsbury Laws 5th Edition Para 23
Digest 36(1) Reissue 49-50, 149-158
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ARTICLES
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