A barrister retained to advise on the prospects of litigation is not negligent in failing to identify an alternative cause of action where the materials and instructions provided do not enliven that cause of action. Even where a barrister's delay in providing an opinion constitutes a breach of duty, no loss is established where the underlying claim was hopeless. The assessment of a barrister's negligence is determined by reference to the instructions given and the materials provided, not by reference to findings of objective fact that might be made at trial.
The full text is available to signed-in members, including the 1 later case that cites this judgment.