{"id":2149,"date":"2021-08-23T22:04:10","date_gmt":"2021-08-23T22:04:10","guid":{"rendered":"http:\/\/legalblog.ie\/?p=2149"},"modified":"2022-10-02T19:29:31","modified_gmt":"2022-10-02T19:29:31","slug":"barristers-court-work","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/barristers-court-work\/","title":{"rendered":"Barristers&#8217; Authority"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Authority_in_Court\" title=\"Authority in Court\">Authority in Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Authority_to_Settle\" title=\"Authority to Settle\">Authority to Settle<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Settlement\" title=\"Settlement\">Settlement<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Relationship_with_Solicitors\" title=\"Relationship with Solicitors\">Relationship with Solicitors<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Acting_on_Barristers_Advice\" title=\"Acting on Barrister&#8217;s Advice\">Acting on Barrister&#8217;s Advice<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Immunity\" title=\"Immunity\">Immunity<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Confidence_and_Conflict\" title=\"Confidence and Conflict\">Confidence and Conflict<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/barristers-court-work\/#Privilege\" title=\"Privilege\">Privilege<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Authority_in_Court\"><\/span>Authority in Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The courts will not generally inquire into the authority of counsel to appear, where he purports to represent a party.\u00a0 Where more than one counsel appears, appropriate inquiries will be made.\u00a0 Entry into f a retainer does not give counsel authority.\u00a0 In order to take steps, a brief must be delivered.<\/p>\n<p>Counsel is entitled to have control of the case and conduct it throughout.\u00a0 His authority may be limited by the client, but only to a limited extent.\u00a0 He may not limit his ordinary authority, take a subordinate position in the conduct of the case or share it with a client, even if the litigant is a barrister.<\/p>\n<p>If the litigant instructs counsel, he may not be heard unless he revokes his counsel of authority and assumes conduct of the case himself.\u00a0 Once the case is fairly before the court and counsel is seised of it, counsel&#8217;s authority may not be generally revoked.<\/p>\n<p>If counsel agrees to a court order, with the client\u2019s authority and consent, it may not be appealed.\u00a0 A client cannot arbitrarily withdraw provided there is no element of mistake or surprise.<\/p>\n<p>The authority of counsel extends unless expressly limited to the action and to all matters incidental to it, in the conduct of the trial.\u00a0 Counsel need not obtain authority for matters within his ordinary authority.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Authority_to_Settle\"><\/span>Authority to Settle<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Outside of litigious matters, acts of counsel bind the client where they are with express authority or when adopted or within the scope of ordinary authority.\u00a0 In the context of property purchase, a purchaser may be affected by notice of document which has come to the knowledge of his solicitor or counsel in the same transaction with respect to the matter on which notice arises.<\/p>\n<p>If a matter is settled in the presence of the client, the consent will be inferred.\u00a0 He may have ordinary authority to settle or compromise the matter.\u00a0 The authority of counsel applies to matters within the action.\u00a0 Collateral matters may not be within the scope of his authority.<\/p>\n<p>Authority may be limited by the client.\u00a0 If the limitation is unknown to the other side and the settlement is within the ordinary authority of counsel, the court may refuse to set it aside.\u00a0 However, the courts have been inclined to interfere at their discretion, where injustice would be caused by allowing the compromise to stand.<\/p>\n<p>Statements made by counsel in the course of the trial or introductory proceedings are binding on the client unless repudiated at the time. Undertakings given in court should have specific authority. Pleadings signed by counsel may constitute a memorandum or a note for the purpose of the Conveyancing Act or the Sale of Goods Act so as to bind the client.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Settlement\"><\/span>Settlement<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Any order or judgment made by consent may be set aside on grounds that would invalidate a contract between parties.\u00a0 A compromise may not bind the client if counsel is not aware of essential matters, such as that the terms have been already rejected by the client.<\/p>\n<p>Where the compromise does not reflect the party&#8217;s intentions due to a misunderstanding, the court may permit the withdrawal of consent.\u00a0 If there is no meeting of minds, there may be no valid consent.\u00a0 Consent may not later be withdrawn on the basis that a good ground of defence is later discovered.<\/p>\n<p>Where a compromise or order is made for the benefit of an infant or person under a disability, it must be sanctioned by the court, as being for the benefit of the client.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Relationship_with_Solicitors\"><\/span>Relationship with Solicitors<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A solicitor is not liable to his client for the neglect or want of attention of counsel whom he instructs.\u00a0 He is not liable for counsel&#8217;s errors in the scope of matters usually entrusted to counsel, such as the sufficiency of the evidence and other matters within the scope of counsel&#8217;s expertise.\u00a0\u00a0The solicitor may be negligent in not briefing counsel properly with respect to material facts of which he is aware.<\/p>\n<p>Where the matter is such that the law would presume him to have knowledge of it, he cannot relieve himself of responsibility, by consulting counsel.<\/p>\n<p>A solicitor may be justified in acting on counsel&#8217;s advice against his client&#8217;s wishes, where counsel advice is that it is in his client\u2019s interest.<\/p>\n<p>The matter of calling or not calling witnesses at trial is primarily one for counsel.\u00a0 If counsel does not call certain witnesses, the solicitor will not be liable for negligence.<\/p>\n<p>The drafting of pleadings is within the counsel&#8217;s area and the solicitor is not liable for negligence in drafting on the part of counsel.\u00a0 Where there is no ordinary want of care on the part of the solicitor, any action on the advice of counsel, he will not generally be negligence.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Acting_on_Barristers_Advice\"><\/span>Acting on Barrister&#8217;s Advice<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A plaintiff is not immunised from a claim for malicious or fraudulent proceedings where he acts under counsel&#8217;s advice unless the facts were fairly stated to counsel and advice was bona fide given and properly followed.<\/p>\n<p>A recommendation to accept or not to accept title will not immunise the solicitor for costs in the event that the court takes a different view on a vendor and purchaser summons.<\/p>\n<p>Where persons undertake actions on the advice of counsel, they may nonetheless be liable for negligence or breach of duty if the advice turns out to be erroneous.\u00a0 The advice of counsel does not immunise trustees in relation to bringing legal actions although it may assist in demonstrating that they have exercised their powers properly.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Immunity\"><\/span>Immunity<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Traditionally, a barrister was not liable for negligence for things done in conduct of this duty.\u00a0 He was required to honestly discharge his duty to the best of his judgment.<\/p>\n<p>Traditionally if a barrister accepted a brief and received payment, but did not attend the trial, no action could be taken to recover fees or damages for non-attendance.\u00a0 The judicial immunity has been reversed by courts in England and Wales and Irish law is likely to follow this approach.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Confidence_and_Conflict\"><\/span>Confidence and Conflict<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The employment of counsel places him in a position of confidence.\u00a0 He must keep information received as counsel confidential.\u00a0 The duty continues after the relationship of counsel and client ceases.<\/p>\n<p>Courts will prevent counsel from disclosing secrets, taking advantage of secret information or taking advantage of anything learned regarding the client&#8217;s business to the detriment of the client.\u00a0 Counsel stands as a fiduciary in relation to a client. A transfer of assets may be set aside on the basis of undue influence.<\/p>\n<p>Counsel ought not to appear if two clients\u2019 interests\u2019 conflict.\u00a0 He ought not to accept briefs against a party in cases where he would be embarrassed in the discharge of his duty by reason of confidence rested in him by another party.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Privilege\"><\/span>Privilege<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Communications between client, solicitor and barrister in a professional capacity or for obtaining legal advice or privilege from disclosure in court proceedings, whether by way of documentary disclosure or on examination of witnesses.<\/p>\n<p>This privilege is not confined to communications in the course of, or in anticipation of litigation.\u00a0 It extends to all professional communications of a confidential character for the purpose of legal advice.<\/p>\n<p>The communications must be professional.\u00a0 They must be confidential in character.\u00a0 They must not be for the purpose of fraud or crime.<\/p>\n<p>Pleadings and counsel\u2019s endorsements are public documents but not notes of remarks and variations.\u00a0 Drafts of pleadings are privileged.\u00a0 The fact of the retainer of counsel is not privileged.<\/p>\n<p>The privilege is the client&#8217;s privilege and not that of counsel or solicitor.\u00a0 It may be waived by the client.\u00a0 However, it enures for the benefit of successors.<\/p>\n<p>Papers delivered to counsel are the property of the client and counsel has no right to retain them without the client\u2019s consent.\u00a0 Confidentiality is waived when documents are read in open court, but not before private tribunals.<\/p>\n<p>&nbsp;<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-2149\" data-postid=\"2149\" class=\"themify_builder_content themify_builder_content-2149 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Authority in Court The courts will not generally inquire into the authority of counsel to appear, where he purports to represent a party.\u00a0 Where more than one counsel appears, appropriate inquiries will be made.\u00a0 Entry into f a retainer does not give counsel authority.\u00a0 In order to take steps, a brief must be delivered. Counsel [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[75],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2149"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=2149"}],"version-history":[{"count":7,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2149\/revisions"}],"predecessor-version":[{"id":2219,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2149\/revisions\/2219"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=2149"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=2149"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=2149"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}