Protection given to advocates to be reconsidered by High Court

October 28, 2015

Protection given to advocates

The immunity given to solicitors and barristers as advocates from being sued is a well-established doctrine. The doctrine has over the years been extended to mean that solicitors and barristers cannot be held liable for negligence for work undertaken in relation to a court case, as well as for work undertaken out of court that is ‘intimately connected’ with the conduct of that case.

Some recent examples of work that the Court has found to fall within the immunity include:

·      Failing to claim interest in an action for damages;

·      Negligent advice relating to resolution of a dispute ; and

·      The decision as to which witnesses to and not to call.

Examples of work that the Court has found not to fall within the immunity include:

·      Advice as to possible action against other parties; and

·      Advice as to the appropriate jurisdiction in which to commence proceedings.

The immunity has been justified in Australia for years by Courts enforcing their role in the final decision of disputes. Other common law jurisdictions such as New Zealand have abandoned the immunity, arguing that this reasoning can no longer be justified.  
Next month the High Court will hear the matter of Attwells & Anor v. Jackson Lalic Lawyers Pty Limited. This is a case that has been anticipated by some as an opportunity for a new bench of the High Court to reconsider the broad scope of the immunity given to advocates.
If the High Court determines that it is appropriate to alter the operation of the immunity (or abandon it altogether) then the protection given to solicitors and barristers as advocates will be substantially eroded and the rights of client will be substantially expanded.

We will keep you updated as to the High Court’s decision on the matter.

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