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Solicitors’ settlement advice immune from suit

I know for a fact that the profession does not understand the extent of the advocates’ immunity which is set out in the decision of the majority in D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1. Not uncommonly I see lawyers’ negligence claims arising out of litigation being defended without claiming the immunity, or wasting costs by failing to claim it at the outset. In Jezovita v AGL [2007] VCAT 1447, VCAT’s Senior Member Howell, undoubtedly the most experienced examiner of immunity defences in the world, has delivered a pithy judgment which reiterates two matters in a clear way, and states clearly something which is relatively newly brought out into the open, though it has been lurking around quietly if you looked hard enough. The two matters reiterated are:

  • in relation to out-of-court litigation work, solicitors are as entitled to the immunity as barristers, regardless of whether they are appearing as advocates or engaging in the solicitor’s traditional role; and
  • advice as to settlement of litigation, as well as failures to advise in relation to settlement issues, may not be sued on because of the immunity: Biggar v McLeod [1978] 2 NZLR 9; Kelley v Corston [1997] 4 All ER 466.

In this matter, both solicitors and barrister were entitled to summary disposition of Mr Jezovita’s claim against them that they pressured him into the settlement, should have realised he did not understand the terms of settlement, that they negotiated negligently and did not get a satisfactory result, and that they should have advised him to run his case. In other words, just another failed regretted settlement case.

The relatively new matter clearly expressed in this judgment is that adding an allegation of undue influence into the plaintiff’s case will not assist, because the equitable doctrine of undue influence either founds a defence to a claim based on a transaction said to have been induced by undue influence of the counterparty or founds a claim to set aside a disposition said to have been brought about by the exercise of undue influence on the part of the counterparty to the disposition, but does not lead to an entitlement to damages: D’Orta-Ekenaike v Victoria Legal Aid (per Buchanan JA in the reasons for decision of the Court of Appeal’s refusal to grant leave to appeal from Judge Wodak’s decision at first instance, approved by Justice Callinan on appeal at (2005) 223 CLR 1 at 121).

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WA Supreme Court says advocates’ immunity applies to misleading and deceptive conduct claims against lawyers

In Alpine Holdings Ltd v Feinauer[2007] WASC 58, the Supreme Court of Western Australia gave very short shrift indeed to an argument that a statutory claim of misleading and deceptive conduct was not met by advocates’ immunity. The decision is interesting for this reason alone. It is also interesting because of:

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Just another failed regretted settlement case

In Wellington’s Case [2006] VCAT 2209, Mr Wellington’s teacher status as a tae kwon do expert apparently did not bear him in good stead when he was assaulted at his workplace. He thought his employer was to blame. He retained one of the big labor law firms to represent him in a challenge to Workcover’s refusal to pay him compensation. The man’s allegations were that the reason things had unravelled for him in cross-examination was that he had not been prepared properly for giving evidence, that incompetent counsel had been retained, and that his case had “not been properly prepared”. He had been “forced to settle” on a walk away basis on day 3 of his trial.

As in Stipanov v Mier, a young solicitor’s diligent file note taking did her firm proud, and she won every contest of evidence. Mr Wellington’s claim was tossed aside with the slightest ceremony, Mr Howell’s reasons for decision running to only 1,400 words. The clear implication of the decision is that Mr Wellington’s untruths were exposed by the solicitor’s contemporaneous written records.

Had the advocates’ immunity been claimed by the firm, they would no doubt have won on that basis by reference to Biggar v McLeod, but it was their prerogative to fight the case on the merits.

Nick Klooger was Counsel Assisting the Tribunal. Patrick Over was for the solicitor.

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ACT Supreme Court summarises incompetence of counsel as a ground of appeal

Cornelius Stevens v Emily Mccallum [2006] ACTCA 13 (Higgins CJ, Crispin P and North J)

You can overturn your conviction if you can establish that by virtue of the incompetence of your counsel, your conviction was occasioned by a miscarriage of justice in the sense that you missed out on a substantial chance of acquittal. Whatever other scare tactics may be employed in favour of the preservation of the immunity, I believe it is true that counsel are less likely to cooperate in such appeals if the prospect of liability is attached to such cooperation.

The incompetence of counsel is a ground of appeal only in the criminal realm, and that is the only good reason in my mind for distinguishing between criminal and civil justice in considering advocates’ immunity. In this case, the Court’s contempt for the job done by the barrister was underscored by the language of the joint judgment, which included the words “blundered”, “egregious”, and “quixotic pilgrimage”, and the conviction was overturned because “the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.” I have reproduced the whole of the Court’s summary of the relevant law below. Continue reading “ACT Supreme Court summarises incompetence of counsel as a ground of appeal”

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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.