Tags

Lord Chelmsford was an advocate in a probate case acting for Patience Swinfen. He was opposed by the Attorney General. An offer to settle was made. Swinfen rejected it. Another offer was made. The solicitor was opposed to settling immediately as Swinfen  was not present. Chelmsford had no express instructions on the new offer  but it seems he was worried that a witness might let his client down; so he settled the case without further reference to the client.

Swinfen was unhappy and applied to set the compromise aside. She succeeded. She then sued Chelmsford for the money that she had wasted. The case turned upon what fell within Chelmsford’s general discretion:

Pollock CB said [page 922],

The conduct and control of the cause are necessarily left to counsel. If a party desires to retain the power of directing counsel how the suit  shall be conducted, he must agree with some counsel so willing to bind himself. A counsel is not subject to an action for calling or not calling a particular witness, or for putting or omitting to put a particular question, or for honestly taking a view of the case which may turn out to be quite erroneous.

This reading is of historic interest. The BSB Code of Conduct (contained in the BSB Handbook) now governs the ethical behaviour of barristers.

Advertisements