What is the test for negligence in the conduct of a defence?

20. In Wenn v. Goyer, [1986] B.C.J. No. 822 (S.C.), the plaintiff was a convicted criminal alleging negligence against his solicitor in the conduct of his defence. The court stated at paragraphs 12-23 that: To succeed on this claim... the plaintiff must establish a duty - a breach of that duty - and damages flowing from the breach. To establish damages flowing from any breach he must establish that, but for the breach, the result would have been different - that he would have been acquitted. It is trite to point out that judgment plays a major role in the conduct for any criminal defence. No two counsel will conduct a trial in exactly the same manner. That judgment is involved at every stage of the proceedings. It is an easy matter to second guess the strategy of counsel after an unhappy result. Counsel often second guess themselves after such a result. There may well be errors in judgment made by counsel in the conduct of a particular case - but errors in judgment are not actionable unless it can be said that they are so gross and flagrant as to constitute negligence.