Richard Godden’s analysis (Perspective, 24 November) of a fire brigade’s responsibilities, following a Court of Session judgment, was very illuminating regarding a key concept in law: the duty of care. Following a failure to completely extinguish a fire, which led to further damage, Strathclyde Fire Brigade was sued by the owner of the building. He contended that SFB failed in its duty of care but that was defended on the basis that the duty of care was not absolute – therefore there was no liability for the further damage to the building.
The Court of Session rejected that argument but the rejection, and Richard Godden’s analysis of it, raises important questions regarding the concept of a duty of care in the context of the lawyer/client relationship.
In 1876, a Court of Session judge conferred immunity from suit on all lawyers in Scotland regarding their performance in court and any preparatory work connected with that performance. That decision, in effect, extinguished the lawyer’s duty of care to the client because however hapless, hopeless and useless the lawyer was in court, the client cannot sue for the consequent losses – because of immunity.
A duty of care is meaningless unless there are actionable consequences for the losses induced by a breach of that duty. Immunity ensures there are no consequences – leaving the client with no redress whatsoever. In effect, a lawyer cannot be negligent in court (civil law) because his duty of care and his liability for the consequences of a breach of that duty, ceases at the door of the court – thanks to immunity.
Surprisingly, the Law Society and the Faculty of Advocates have never taken the opportunity (through The Scotsman’s Law and Legal Affairs pages) to comment on this minor affront to the concept of justice, but I’m sure a joint article, calling for the immediate abolition of immunity, is very imminent.