This specialised 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.
Liability of provider of professional services towards their client (and potentially third parties) can arise on a number of different legal bases, including contract, negligence, other torts, equity (such as duties owed by trustees and fiduciaries), as well as statutory rules such as the Consumer Rights Act 2015 and the Supply of Goods and Services Act 1982 (which applies in non-consumer contexts).
If a patient seeks publicly funded medical assistance (through the National Health Service, for instance), no contractual obligation may exist, but a duty in tort does.
By contrast, a person seeing a doctor privately may be able to recover through both contract and tort concurrently[1]—a principle affirmed by the House of Lords in 1995 in Henderson v Merrett Syndicates Ltd.
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.
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.
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.
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.
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.
In addition, Hedley Byrne & Co Ltd v Heller & Partners Ltd created the rule of "reasonable reliance" by the claimant on the skills of the defendant.
"Following Caparo, the Court of Appeal in James McNaughton Papers Group Ltd. v Hicks Anderson & Co. [1991] 1 All ER 134 adopted a more restricted approach, focusing in the adviser's actual and constructive knowledge of the purpose for which the statement was made.
In Bolam, McNair J stated at 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men."
To determine whether a body of opinion is responsible, reasonable or respectable, the judge will need 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.
393, 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.
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.
As to solicitors, Ross v Caunters [1979] 3 AER 580, holds that lawyers can owe a duty of care both to their clients and to third parties who suffer loss or damage.
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.
Gran Gelato Ltd. v Richcliff (Group) Ltd. (1992) Ch 560 involved a solicitor's replies to preliminary enquiries in a conveyancing transaction.
In Clarke v Bruce Lance & Co. (1988) 1 WLR 881, it was recognised that solicitors may sometimes give advice which directly prejudices the interests of others who have a relationship with the client.
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.
Nevertheless, in a unanimous decision, Lord Reid said in Rondel v Worsley (1969) 1 AC 191 at 227 that the ancient immunity should be continued on considerations of "public policy [which are] not immutable."
As to criminal trials, prosecuting counsel owes no duty of care to a defendant: Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335.
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 Police (1982) AC 529.
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.
Since Watson v M’Ewan (1905) AC 480,[5] 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 Stanton v Callaghan (1999) 2 WLR 745,[6] Chadwick LJ 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.
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.