Should advocates' immunity continue?

• Jurisdiction: Australia
• Author: Groves, Matthew
• Date: 01 April 2004

[Advocates are currently immune from actions in negligence for work that is performed in, or closely connected to, court proceedings. This immunity was recently abolished by the House of Lords. The immunity still exists in Australia, although its future is currently under consideration by the High Court. This article examines recent case law, which has confirmed the immunity in some jurisdictions and abolished it in others. The authors argue that there are sound reasons to retain the immunity. The main points made in support of this argument are: similar protection is extended to other participants in legal proceedings; abolition of the immunity could lead to conflict between an advocate's duty to the court and to the client; the immunity prevents or limits relitigation and collateral attack on court decisions; and other sanctions are available against negligent advocates. The final section considers whether a duty of care is an appropriate mechanism to regulate the behaviour of advocates.]

I INTRODUCTION

In Arthur J S Hall & Co (a firm) v Simons (1) the House of Lords abolished the common law doctrine under which advocates are immune from liability in negligence for work performed in court. Their Lordships unanimously abolished the immunity in civil proceedings and--by a bare majority--in criminal proceedings. (2) The decision in Arthur Hall was not entirely surprising. The immunity has been the subject of frequent academic criticism, (3) and no longer exists in many common law jurisdictions. (4)

The year before Arthur Hall was delivered the High Court of Australia briefly considered the immunity in Boland v Yates Property Corporation Pty Ltd. (5) While the case was decided on other grounds, the views expressed by several judges suggested that the status of the immunity may be reconsidered. Arthur Hall may provide an impetus for the High Court to revisit the immunity, should an appropriate case arise. An opportunity to reconsider the status of the immunity in Australia may have finally presented itself in D 'Orta-Ekenaike v Victoria Legal Aid, the application of special leave to appeal for which is currently under consideration by the High Court. (6)

A former judge of the Supreme Court of Victoria has suggested that the fate of the immunity should be decided by Parliament because 'this avoids the perception of self-interest which cannot help but arise when the matter is decided by the courts.' (7) In our view, two arguments can be made against this suggestion. First, the immunity attaches to the work of advocates and must, therefore, be a special privilege created by lawyers for the benefit of lawyers. Any debate of the immunity is likely to raise well-rehearsed views about lawyers which will hamper any objective examination of matters affecting the legal profession. Indeed it could be argued that Parliament's view of lawyers is no more objective than that of the rest of the community.

Secondly, the immunity is often perceived by commentators and the media as an anachronism that is out of step with modern tort law. (8) The suggestion that any form of immunity is anomalous has influenced the debate on advocates' immunity by creating a presumption, often undetected, that the immunity ought to be abolished in the absence of compelling reasons to the contrary.

However, the wider issue regarding the role of immunities and duties in the law generally is beyond the scope of this article. (9) This article is confined to the more modest task of stating the case in support of advocates' immunity. Part II of this article analyses the modern cases that affirm advocates' immunity. Part III examines Arthur Hall and the status of the immunity in Australia. Parts IV and V explore the arguments that support the continued existence of the immunity and respond to the arguments that are commonly made in support of its abolition.

II THE RECENT ORIGINS OF THE IMMUNITY

A What Is the Immunity?

The doctrine of advocates' immunity renders advocates immune from civil claims in professional negligence for any act or omission which arises honestly in the conduct or management of a proceeding in court, and for any out-of-court act or omission that is intimately connected with in-court proceedings. (10) There are other aspects of the immunity which have not been disturbed by the decision in Arthur Hall. For example, advocates still enjoy immunity from civil proceedings in defamation or misrepresentation, as well as immunity from criminal proceedings in defamation or fraud arising from statements made by a party or his or her lawyer in the ordinary course of court proceedings. This immunity also extends to statements made in an unverified pleading. (11)

B The Rationale of the Immunity

The origins of advocates' immunity have been described as an 'obscure' part of the 'gradual evolution of the duties and liabilities of those concerned in the legal process.' (12) The earliest cases on the immunity contain little, if any, analysis of its nature or purpose. (13) Most modern analysis of the immunity can be traced to three key decisions, each of which provides a considered analysis of the immunity. The first is Rondel v Worsley. (14) Rondel sued Worsley, his former advocate, for alleged negligence. The House of Lords unanimously held that the action could not proceed because advocates were immune from liability in negligence. Their Lordships relied upon several grounds of public policy--in particular, the problems that could arise if advocates were subject to conflicting duties to both the court and their client. (15) Their Lordships held that the very possibility that advocates could face liability as a consequence of the discharge of their duties in court might cause them to 'subordinate' any duties owed to the court to those owed to the client. (16)

A decade later the House of Lords reconsidered the immunity in Saif Ali v Sydney Mitchell & Co. (17) In this case, attention was confined largely to the scope of the immunity. The majority accepted that the special status of advocates provided a sufficient reason for the immunity. (18) Lord Diplock, however, did not. His Lordship noted that the work of advocates bore many similarities to that of other professionals who were also required to make difficult decisions under great pressure, (19) and accepted that other classes of professional people, such as surgeons, had adjusted to the potential liability arising from the operation of a duty of care. (20) Lord Diplock concluded, however, that advocates' immunity was still warranted on two key policy grounds. First, the immunity afforded advocates the protection granted to all other participants in legal proceedings, such as witnesses, jurors, court officials and judges. (21) Secondly, the immunity prevented collateral challenge against judicial decisions by removing a potential avenue for disaffected parties to raise grievances that had been determined in an earlier proceeding. (22)

In Giannarelli v Wraith, (23) a majority of the High Court accepted that advocates were not subject to a common law duty of care in negligence for work performed in court. (24) The facts provide a useful illustration of the type of case in which advocates' immunity can arise. The Giannarellis were convicted of perjury for evidence given to a royal commission. (25) The High Court quashed the convictions on the ground that the Giannarellis' evidence to the commission was inadmissible at their subsequent trial. (26) The Giannarellis sued their legal advisers in negligence, alleging that their lawyers had negligently failed to advise them that their evidence to the commission was inadmissible at trial. (27) It was also alleged that the advisers had negligently failed to object to the admission of this evidence at the trial itself.

The immediate issue before the High Court was a narrow question of statutory interpretation. Section 10(2) of the Legal Profession Practice Act 1958 (Vic) provided that:

Every barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty-third day of November One thousand eight hundred and ninety-one liable to his client for negligence as a solicitor. (28) A majority of the Court held that this provision was intended to render barristers subject to the same common law duty of care applicable to solicitors at the time specified in the provision (23 November 1891). (29) The majority concluded that a solicitor acting as an advocate was, at that date, not liable in negligence for work performed in court, and that s 10 extended this protection to advocates. (30) The minority held that s 10 was not intended to determine the potential liability of barristers by reference to the equivalent liability of solicitors at a stated point in time, but rather to subject barristers to the same liability applicable to solicitors generally. (31)

The majority also accepted that the common law immunity extended to advocates for work that was performed either in court, or work performed out of court that was closely connected such in-court work. Mason CJ concluded that only two policy arguments provided any significant support for the immunity at common law. First, advocates occupy a special position: they owe a duty to both the court and their client. Mason CJ held that an advocate's duty to the court overrode their duty to the client and that this superior duty was clearly separate from any duty owed to the client. The Chief Justice drew support from the special role of the advocate. His Honour stated that

a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice.... The judge is in no position to rule...