Jock Anderson

Barristers can now be sued for bad workmanship in both the civil and criminal courts.

The Supreme Court has abolished their barristerial immunity. Solicitors lost immunity from being sued about 20 years ago.

Prominent legal academic, associate professor of law at Auckland University Bill Hodge said the abolition of immunity was inevitable and overdue.

But Queen’s Counsel and New Zealand Bar Association president Jim Farmer, who appeared in the case, says the landmark Supreme Court decision creates more problems than it solves.

The Supreme Court has abolished a longstanding common law rule that barristers – in both civil and criminal cases - cannot be sued for work they do in court and other work intimately connected with in-court work.

In dismissing an appeal by Auckland law firm Chamberlains against an earlier four to one Court of Appeal decision the Supreme Court followed a 2000 decision of the House of Lords which abolished barristers’ immunity in England.

The court, comprising Chief Justice Dame Sian Elias and Justices Tom Gault, Sir Kenneth Keith, Andrew Tipping and Ted Thomas, did not follow a recent decision of the High Court of Australia to retain the immunity.

Costs of $30,000, together with disbursements, were awarded against Chamberlains.

Jim Farmer told CaseLoad the Supreme Court judgments created more problems than they solved.

Because of the issues and implications involved the Supreme Court allowed the Bar Association and the New Zealand Law Society to make submissions on the appeal in support of Chamberlains and for the retention of immunity.

Speaking after the release of the decision Mr Farmer said the Supreme Court said it was in the public interest that barristers, like other professionals, should be able to be sued.

But the court had created expectations that were unlikely to be fulfilled, Mr Farmer said.

He said English experience, since the House of Lords took a similar approach six years ago, had been the problems of establishing just who was at fault when a court case was lost were immense.

“What the Supreme Court’s decision will effectively do is require a losing litigant to appeal the judgment – possibly all the way to the Supreme Court – as a first step to avoid the argument that the judge was at fault,” Mr Farmer said.

He said that even then, as the Supreme Court recognized, a claim brought against a barrister may end up being struck out by the court as an abuse of process. He did not think it was in the public interest that people should be encouraged to take cases that by their very nature were most unlikely to have realistic prospects of success.

Mr Farmer also doubted that barristers’ insurance premiums would be affected by the judgment because he thought professional indemnifiers were experienced enough to appreciate that it would be the “rarest of cases” that would ever succeed, given the problems in litigation of attributing blame for a loss.

On the other hand Professor Bill Hodge said the legal system had been “pretty busy and active” exposing accountants, doctors, engineers and other professionals.

“All bar one have been exposed to the concept of malpractice or negligence actions,” Professor Hodge said.

He said it was the trend “around the world” that there should be no special privilege for “particular actors” in the legal profession.

Professor Hodge said that while the judgment was inevitable he did not see floodgates opening to sue barristers.

The Supreme Court decision makes the point, for example, that civil proceedings which seek a conclusion that a subsisting criminal conviction is wrong will usually be an abuse of process.

The landmark case, which was argued before the Supreme Court last October, began  when fruit importers Sun Poi Lai  and his wife Hilda Lorraine Lai sued Chamberlains claiming damages for professional negligence.

They claimed that Chamberlains gave them bad courtroom advice in a mid-1990s High Court case that cost them about $750,000.

The negligence alleged was in acknowledgments made by Chamberlains to the High Court before the terms of a consent order were finalized. The consent order resolved civil litigation to which Mr and Mrs Lai were parties and in which they were represented by Chamberlains.

Chamberlains denied all breaches of duty and raised general defences of lack of causation and contributory negligence.

The firm also raised the further defence of immunity, saying the immunity arose because the actions claimed to be negligent were intimately connected with the conduct of the case in court.

A bid by the Lais to strike out the immunity defence was rejected in the High Court by Justices Peter Salmon and John Laurenson on the basis that it was open to the trial judge to find that some of the advice said to be negligent was sufficiently connected with the hearing to be covered by the immunity.

But not before both judges expressed reservations about earlier justifications for the immunity and about its scope.

Justice Salmon thought modern case management undermined some of the reasons for immunity, while Justice Laurenson thought public policy no longer justified the immunity in civil cases.On appeal, the Court of Appeal held by a four to one majority that there was no longer sufficient justification for retention of immunity for barristers in respect of negligence in civil litigation.

The dissenting court president Justice Noel Anderson felt the immunity was “as necessary for the due administration of justice for the public benefit, and for the advancement of our other democratic protections, as it ever was…”

As Chief Justice Elias put it, the Court of Appeal left the issue of liability for negligence in the conduct of criminal proceedings for “another day.”

That day came this week when the Supreme Court abolished barristerial immunity in both civil and criminal proceedings.

Chamberlains were represented by AC Challis; Sun Lai by PFA Woodhouse QC, PN Collins and D Webb; Hilda Lai by RM Gapes and C Weaver; the NZ Law Society by WM Wilson QC and CF Finlayson and the NZ Bar Association by JA Farmer QC, GM Coumbe and A Thorn.

Find the full judgment Chamberlains v Sun Poi Lai and Hilda Lorraine Lai SC 19/2005 at www.courtsofnz.govt.nz