Young v Hones (No 3) [2014] NSWSC 499 is a decision about the costs of a lawyers’ negligence claim which was defeated by advocates’ immunity. It and the (No 2) decision are interesting because:
1. The Court determined the immunity point against the plaintiff in the trial of a preliminary question, having previously dismissed the lawyers’ summary judgment application;
2. The Court suggested that the immunity applies in respect of allegations of conduct otherwise than in good faith despite suggestions to the contrary in pre-D’Orta-Ekenaike’s Case authorities; and
3. The Court was inclined to the view that a well-drawn walk-away Calderbank offer would have been unreasonably rejected by the plaintiff and attracted costs penalties had it only been open a little longer than the 7 days it was expressed to be open for.
The lawyers applied for summary judgment by reference to advocates’ immunity. The application failed, but at the end of it, the judge invited the defendant to apply for the determination of the immunity defence as a preliminary question of law. I am no particular fan of the immunity, and not only because it makes life for a solicitor’s negligence practitioner a little tedious. But if we are to have an immunity, proceedings brought which are answered by it ought be extinguished at the earliest opportunity, for everybody’s sake. The New South Welsh are leading the way in ensuring that this occurs. In this case, the Supreme Court answered the preliminary questions in favour of the lawyers (the plaintiff consented to the question being dealt with as a preliminary point): Young v Hones (No.2) [2013] NSWSC 1429 at [171] – [175], Justice Garling suggested in considered dicta that the immunity applies even where lawyers are alleged not to have been acting in good faith, suggesting that dicta inconsistent with that proposition pre-dated and did not survive D’Orta-Ekenaike.
The lawyers had written a Calderbank offer well into the case in which they had incurred substantial interlocutory costs. They proposed that there be judgment for them, in which case they would not seek (or pay) costs. They had specifically referred the plaintiff to the Court’s caution to the plaintiff in an earlier interlocutory judgment about the prospects of the claim in light of the immunity. At [47] et seq in (No. 3), Garling J said he inclined to the view that the offer was a genuine offer of compromise, but found that given what was going on in the case in the seven days in which the offer was open, a reasonable period was not given for keeping the offer open.
