New Zealand ditches advocates’ immunity; Scotland confirms it

It took New Zealand’s new ultimate appellate court a long time to hear Chamberlains v Lai [2006] NZSC 70 and make a decision, but after a long think, its judges have decided to give advocates’ immunity the boot. Advocates’ immunity, otherwise sometimes known as “barristers’ immunity” or “forensic immunity”, applies equally to solicitors involved in litigation as to barristers involved in litigation. It is an immunity from being sued for negligence or anything else for work in court or work intimately connected with such work in court, and is based on the public policy that the umpire’s decision is final.

Many will be the analyses of how Australia is alone in the civilised world in retaining the immunity (though they will be wrong, because Scotland recently followed Australia’s lead and thumbed their noses at the House of Lords: see below). But what needs to be analysed is whether as a practical matter, clients can successfully sue barristers in any particular place, whatever the name of the impediment to doing so is. A right to sue which gives rise to an unsuccessful suit is a right to make a very poor investment of a lot of legal fees. The law in places which profess not to recognise the immunity is less different than we might imagine from the law in places which do profess to do so. The more I know about the law, the more interested I am in analyses of facts against results, ignoring the legal language interposed between them.

Meanwhile, the Inner House of Scotland’s Court of Session declined an invitation to abolish the immunity in criminal cases in Wright v Paton Farrell [2006] SLT 269, showing uncharacteristic restraint in this curious corner of jurisprudence by not commenting on civil cases.

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One Reply to “New Zealand ditches advocates’ immunity; Scotland confirms it”

  1. Whilst I believe there is still a place for advocates immunity, real limits must be put in place….for too long the blurred to the extent that a barrister or solicitor cannot be brought to account for any action, whether acting in good faith, or for that matter whether they even attended proceedings, misleading the court, instructing the client to perjure themselves, swearing and filing affidavits they know to be false, (see Bott v Carter and Evatt NSWSC 2008/9) beyond a joke those who should be removed from the honourable profession are further denigrating, aided and abetted by the judiciary, where does it stop???

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