Barristerial immunity abolished in New Zealand

Christine Meechan | April 2005

Barristers and their insurers may have to re-examine the scope of their professional indemnity insurance following a recent decision to abolish barristers' immunity from negligence claims by the New Zealand Court of Appeal. 

Until recently, barristers in England and New Zealand were immune from negligence claims from Court and pre-trial work intimately connected with the conduct of a case (barristerial immunity).

In a 2000 case, the House of Lords unanimously held that in light of changes in the law of negligence, the functioning of the legal profession and the administration of justice, barristerial immunity had no place in English law and should be abolished (Arthur J S Hall v Simmons [2002] 3 All ER 673).

In a judgment released on 8 March this year, a four-to-one majority of the New Zealand Court of Appeal followed the approach of the House of Lords and decided that barristerial immunity should now be abolished, at least in relation to the conduct of civil cases (Chamberlains v Lai [2003] 2 NZLR 274; Unreported, CA, 17/03, 15/03, 8 March 2005). 

The Chamberlains v Lai case

In Chamberlains v Lai, Mr and Mrs Lai sued their lawyers for negligence over the firm's conduct of the Lais' case before the High Court. 

The Lais maintained that the barrister who represented them wrongly made certain concessions which resulted in a judgment being entered against them personally, rather than against their company. 

The law firm, Chamberlains, denied that it acted negligently and sought to strike out the Lais' claim on the basis that, in any event, barristerial immunity provided a complete defence to the claim.

Mr and Mrs Lai argued that, in light of the House of Lords decision, a reconsideration of barristerial immunity in New Zealand law was appropriate. 

The High Court decision

A full bench of the High Court held that it was bound by precedent to uphold barristerial immunity in New Zealand.  However, anticipating an appeal, their Honours nevertheless expressed their opinions for the benefit of the Court of Appeal.

Justice Salmon favoured the retention of limited barristerial immunity for all civil and criminal proceedings.  Justice Laurenson favoured retention on a limited basis for family and criminal litigation, but would abolish the immunity in respect of civil proceedings.  As the Court anticipated, the plaintiffs appealed.

The Court of Appeal decision

A full bench of the Court of Appeal heard the appeal on 1 March 2004.  Four judges - McGrath, Glazebrook, Hammond and O'Regan - found in favour of abolishing the immunity.

The President of the Court of Appeal, Justice Anderson, gave a dissenting judgment in favour of retention.

The judgments re-examined the traditional policy justifications for the imposition and retention of barristerial immunity, which can be summarised as:

• Removal of the immunity would interfere with a barrister's overriding duty to the Court (divided loyalty);
  
  
• Negligence claims against barristers would inevitably involve a rehearing of the issues already determined in the original action (re-litigation);
  
  
• Removal of immunity would interfere with a barrister's duty to accept any client (cab-rank principle);
  
  
• Unless a barrister is immune, they are less likely to prune each case of irrelevancies (over-litigation).

In the majority judgment, Justice Hammond said that he did not think that the traditional policy justifications in favour of retention of the immunity remained persuasive in today's society. 

Following the reasoning of the House of Lords in Arthur Hall v Simmons, his Honour considered that:

• The problem of divided loyalty is not unique to lawyers.  Doctors, for instance, have distinct duties with respect to medical ethics but this did not confer immunity on them from negligence.  There are a number of disciplinary sanctions available where an advocate breaches his or her duties to the Court.   There was no evidence to support the assertion that the imposition of liability for negligence is likely to cause barristers to ignore their duties to the court; 
  
  
• The New Zealand legal system is adequate to cope with the risk of re-litigation; 
  
  
• The cab-rank principle does not have a great impact on the administration of justice in New Zealand and is not a supporting reason for the existence of the immunity; 
  
  
• Over-litigation is a problem even with barristerial immunity in place. 

Justice Hammond also commented on the analogy between barristerial immunity and the immunity of witnesses and others involved in Court proceedings and considered that such an analogy was tenuous.

Witness immunity was founded on the public policy of encouraging freedom of speech, and had nothing to do with the policy behind barristerial immunity.

In delivering his minority judgment, Justice Anderson expressed the view that barristerial immunity was as necessary for the due administration of justice as it ever was. 

Furthermore, he thought that an analysis of the traditional justifications could be "bypassed" because the principle of barristerial immunity as it had previously existed in England was enshrined in section 61 of the Law Practitioners Act 1982. 

Justice Anderson also thought that it was inappropriate for a court rather than Parliament to modify or extinguish barristerial immunity because of the retrospective implications of a Court decision. 

The cause of action in the Lais case extended back more than six years and if a Court were to remove immunity, counsel in every case for at least the past six years, whether at first instance or on appeal, could potentially be sued. 

The Australian position – retention of barristerial immunity

In a judgment released only two days after that of the New Zealand Court of Appeal, a six-to-one majority of the High Court of Australia upheld the retention of barristerial immunity for both civil and criminal proceedings (D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005)).

The majority (Chief Justice Gleeson and Judges Gummow, McHugh, Hayne, Callinan and Heydon) considered that the compelling reasons for the immunity to be preserved were:

• It was a central and pervading tenet of the judicial system that controversies, once resolved, were not to be reopened except in narrowly defined circumstances;
  
  
• Re-litigation of controversies would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client.

Justice McHugh said that the truly distinguishing feature of legal practice was that it resulted in binding judgments.  It would be detrimental to the administration of justice and the legal process for matters to be re-litigated for a collateral purpose.

Without abandoning the rule that judges and jurors could not be called to give evidence to explain their decisions, one could only guess as to whether an advocate's negligence affected the result of a case. 

Justice Callinan noted that a fundamental aspect of advocacy is strategic and tactical decision-making:

 "The material with which advocates have to deal in every case is human material, not the tangible material of tissue, bone and blood, but of mind and memory.  Counsel can rarely be completely certain at the beginning, of the actual way in which the facts are going to fall out by the end of the trial.  Every case requires the making of strategic and tactical decisions."

The advocate's overriding duty to the court, the risk, expense and vexation of collateral proceedings, and the advocate's special and unique difficulty in drawing a line between non-negligent and negligent errors of judgment were compelling reasons for the continuation of the immunity.

The sole dissenting judge, Justice Kirby, considered that Australia should follow the approach of the House of Lords and abolish barristerial immunity.  He said that the traditional justifications for barristerial immunity had "collapsed" under the force of changes in the law and social perceptions.  In particular: 

• Immunity from liability at law was a derogation from the rule of law and fundamental rights.  The law demands a high measure of accountability from other professions such as doctors, accountants and architects.  In effect, the immunity reduces equality before the courts;
  
  
• The "divided loyalty" argument does not support the existence of the immunity, as it is difficult to see how negligence could be found where a barrister has simply complied with a duty to the court; 
  
  
• The fears of over-litigation and re-litigation were not sufficient to sustain the immunity on public policy grounds; 
  
  
• The fear of floods of litigation, brought by discontented litigants against barristers, could not be sustained by the experience in the United States or Canada, where there has never been an immunity from suit for advocates.

Where to from here?

In light of the position taken by the High Court of Australia, it seems likely that the New Zealand Court of Appeal's decision in Chamberlains v Lai will be appealed to the Supreme Court.  We await any further developments with interest.

Advice and information

Bell Gully's Litigation Team can advise on all aspects of insurance law and the dispute resolution process, including issues of barristerial immunity.

If you require any advice or further information, please contact any of the Litigation Team members listed below: 

Auckland

David Cooper
Partner

Ian Gault
Partner

Brian Latimour
Partner

Roger Partridge
Partner

Alan Ringwood
Partner

Ralph Simpson
Partner

Murray Tingey
Partner

Rob Towner
Partner

Wellington

Mike Colson
Partner

Mark O’Brien
Partner

Andrew Scott-Howman
Partner