Not an impartial tribunal? English courts and barristers' negligence

A decade has now passed since the House of Lords removed the immunity from suit in negligence previously enjoyed by advocates in England and Wales. The small number of cases decided against barristers since the removal of the immunity indicates that the closeness of the relationship between barristers and the judiciary may give rise to issues of perceived judicial impartiality. This paper argues that the standard of care applied to barristers may be more generous than that applied to other professions. This is because the courts emphasise the importance of barristers' independence and the judiciary also have a direct interest in avoiding defensive practices on the part of barristers. Expert evidence is uncommon in negligence claims against barristers, placing the judge in the dual role of expert and adjudicator. The paper also considers the principles developed to address actual, apparent and presumed bias on the part of judges and the principles enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In concluding, possibilities are explored for redressing the balance in barristers' negligence claims and removing the perception of bias which may currently taint such claims.