Advocate's Immunity from Suit

johnnyskeleton

Should the common law rule that a lawyer running a trial is immune from a negligence suit for anything arising from the trial.

Is a more appropriate approach to ask whether the advocate acted within standard parameters?

Is there a need for any potential claimant to show damage over and above the potential risks inherent in litigation?

Tom Young

The following three cases: Moy v Pettman Smith & Perry, D'Orta-Ekenaike v Victoria Legal Aid & Lai v Chamberlains appeared last year on the Tort entrance exam in respect of Barristers immunity. As you can see there are jurisdiction issues with regard to the enforcement of the matter in tort. The House of Lords did abolish full immunity in Hall v. Simons, as below http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000720/hall-1.htm.

Other cases of note include Saif Ali v. Sydney Mitchell and Rondell v. Worsley

Australia: Retained by court.
NZ: Removed by court, subject to legislative review.
UK: Removed by court
Ireland: Unclear, refer to recent media and recent issues with solicitors.


Moy v Pettman Smith & Perry examines the extent of advocates’ liability in professional negligence, following the abolition of immunity from suit. It is a helpful judgment for professionals and their insurers. Not only does it reconfirm the test be applied in negligence allegations against counsel, but also it makes it clear that an exhaustive list of the reasons behind the advice given is not required – certainly the absence of such a list will not establish negligence if the advice was otherwise within the range that might have been expected.

Negligence at door of court
An advocate had no duty to explain the thinking behind her advice to her client when advising him whether or not to accept a settlement offer at the door of the court. The concept of informed consent which requires a doctor to explain a particular risk to a patient does not apply to advocates (Moy v Pettman Smith HL 3 February 2005).

The clearest statement on barristers' and solicitors' immunity by the High Court can be found in its 1988 judgment in Giannarelli v Wraith [1] where it stated that: at common law, barristers and solicitors are immune from liability for negligence in the conduct of court work or work out of court that leads to a decision affecting the conduct of a case in court (advocates' immunity); and the Legal Profession Practice Act 1958 (Vic) (the 1958 Act) also provided for advocates' immunity.

In D'Orta-Ekenaike v Victoria Legal Aid [2], the High Court (by a majority of 6-1)[3] confirmed that barristers and solicitors still enjoy the benefit of advocates' immunity. In response, state and territory governments are considering whether to wind back the scope of the immunity or to abolish it completely.

Gobán Saor

While the Irish situation is unclear due to lack of a decisive precedent, our Tort lecturer in Kings Inns Diploma 1 last year was of the opinion that "almost certainly" barristers immunity is a thing of the past. I can't remember the cases he quoted though some of Tom's (above) seem vaguely familiar;)

He did also make the salient point that virtually all practicing Irish barristers now carry professional indemnity insurance!

Tom Young

See article by Ray and Des Ryan from the Bar Review if your interested. I think its Issue 5 from 2005. Its a good read. Also Lord Steyn in Hall v Simons.

Not sure about your lecturers advice on that matter, but as he's a practitioner, well maybe. I'd refer to the Inns entrance examination past papers set by Mr Paul Ward of UCD, a rather nasty question on the topic was included.

Tom Young

Sorry its issue 6, 2005.

johnnyskeleton

Gobán Saor wrote: »

He did also make the salient point that virtually all practicing Irish barristers now carry professional indemnity insurance!

I think that's more to cover mistakes in pleadings (the second most common source of professional negligence claims after conveyancing, AFAIK).

hullaballoo

Lol.

Tom Young

hullaballú wrote: »

Lol.

It is rather funny. The reason I went hell for leather at this one was, it featured in Paul Wards King's Inns entrance examination paper in 2006. No sign of it this year!

I note there was a case in the HC - 2008 IEHC 18, which mentions same but it is as yet undecided/unsettled in the jurisdiction.

Moy v. Pettman Smith is you're only man, but I assume the factual matrix differs in that there was judgment entered rather than having a negotiation/settlement accepted in advance.

W v Ireland etc are worth a gander.

The 2007 Ed of Jackman and Powell Chapters 12 and 7 deal comprehensively with the issue and also the ECHR/EU view of same.

Ciao. Tom:D

johnnyskeleton

hullaballú wrote: »

Lol.

What's funny? Why did it take 4 months for you to laugh?

Victor

Only seeing this second time around.

On a slightly different level of seriousness, but staying with uncertainty of outcome. Given that courts are recognising a duty of care from governments towards soldiers in combat, then surely something as simple as expecting a lawyer to do a half reasonable job is inevitable.

Of course, one could blame the client for seeking an unsuitable lawyer.

hullaballoo

johnnyskeleton wrote: »

What's funny? Why did it take 4 months for you to laugh?

Nothing. *whistles*

johnnyskeleton

Victor wrote: »

Only seeing this second time around.

On a slightly different level of seriousness, but staying with uncertainty of outcome. Given that courts are recognising a duty of care from governments towards soldiers in combat, then surely something as simple as expecting a lawyer to do a half reasonable job is inevitable.

Of course, one could blame the client for seeking an unsuitable lawyer.

The traditional logic was that since have of all litigants must (of necessity) lose, lawyers would be sued left right and centre. You could always sue a solicitor for non-litigious work (e.g. advice, conveyancing), and you for a long time now you can sue a barrister for mistakes in paperwork (pleadings etc).

It was also that if lawyers might not fearlessly defend their clients because they would be scared of being sued.

I think I would be in favour of abolishion of the rule, but suing a lawyer for negligence in advocacy should be based on a professional negligence basis - i.e. whether they substantially deviated from standard practice.

Tom Young

johnnyskeleton wrote: »

you for a long time now you can sue a barrister for mistakes in paperwork (pleadings etc).

JS, have you an authority in the High or Supreme Courts for this?

Thanks,

Tom

johnnyskeleton

Tom Young wrote: »

JS, have you an authority in the High or Supreme Courts for this?

As with most things I say, it is mostly conjecture and hearsay*.

I vaguely remember a reported decision where a party's legal advisors failed to plead something and that party unsuccessfully argued that they should be allowed to amend their pleadings because it was not their fault but the fault of their legal advisors. The court said that in such circumstances they would have an adequate remedy suing their solicitors.

As for most professional indemnity claims arising from pleading errors, I believe I overheard that in a lavatory once, but I'm sure there are statistics are out there, somewhere, that can back me up.

Sorry I can't be of any assistance.


*The rest is idle speculation.

Tom Young

E. O’K. v. D. K. [2001] 3 IR 568 - No comment offered by Murray J, coujnsel conceded no immunity to suit in negligence ref. Arthur JS Hall case.
McMullen v McGinley [2005] IESC 10 (Unrep, Supreme Court, 15 March 2005) - Murray CJ no comment as no negligence in re. Barrister.
Behan -v- Mc Ginly & Ors [2008] IEHC 18 - Dismissed by Irvine J - Vexatious.

One of these?