The following article was contributed by Valerie Blacker, a commercial litigator focusing on funded litigation, and John Speer, a lawyer in the Dispute Resolution and Litigation Team at Piper Alderman.
While large class actions receive the lion’s share of media attention, litigation financiers also regularly fund litigation involving a single plaintiff. Given that solicitors are required to maintain professional indemnity insurance, they can be, in instances of negligence, an attractive prospect for financiers: they are well-resourced and have the capacity to satisfy any judgment awarded against them.
The Brisbane Litigation team at Piper Alderman have brought successful professional negligence claims against our clients’ former solicitors involving both funded and unfunded arrangements.[1] This article discusses a common defense raised in these types of proceedings – the advocates’ immunity.
The immunity in brief
In Australia, the advocacy function is immune from a negligence claim. The immunity applies to a lawyer’s work in the court room. The immunity is rooted in the public policy principle that there should be finality in litigation. It prevents unsuccessful parties from seeking to re-litigate disputes by way of a collateral attack on their lawyers’ performance in court.
A barrister mainly appears in court, and a solicitor mainly performs legal work outside of court.[2] But why does it matter? If a lawyer has been negligent, shouldn’t the client be able to seek relief?
Apparently not – in some jurisdictions. Despite having been abolished in the United Kingdom and even in New Zealand, advocates’ immunity remains firmly in place in Australia.
Indeed, there were at least eighteen court actions in 2022 that have made reference to the immunity as a defense.
Avenues for redress
The immunity is often called upon by solicitors performing ‘out-of-court’ work, but which (so the argument goes) is so ‘intimately connected to the conduct of the case in court’. In two recent examples, the immunity applied to shield a solicitor for failing to present evidence that should have been presented (Golden v Koffel [2022] NSWCA 8), and was extended to protect a solicitor who had given faulty advice (Jimenez v Watson [2021] NSWCA 55).
If a solicitor’s negligent work was actually done in court in the course of a hearing or was done out of court but which led to a decision affecting the conduct of the case in court, the alternative options for an aggrieved client are frankly inadequate.
For example, (1) an unsuccessful party may apply for an order that his or her solicitor be made personally liable for the successful party’s costs in the litigation; (2) an aggrieved client can challenge a solicitor’s bills through an application to the court for a costs assessment; and (3) disciplinary action can be taken which can result in a fine, a reprimand or in a solicitor being disqualified from practice.
At best these alternative options may reduce a client’s costs but none of them will truly compensate a client for the wrongs caused by a lousy solicitor.
Narrowing the scope of the immunity
In a more positive move, the Courts have now made it clear that the immunity does not extend to a solicitor’s work in bringing about a settlement agreement (as an agreement between parties to settle is not an exercise of judicial power).[3] It is also now possible to be compensated for the expense of engaging new lawyers.[4]
NT Pubco Pty Ltd v Strazdins is also notable. The Court there held that a failure to advise clients to seek independent legal advice was held to be likely outside the immunity.[5] The relevant wrong in that case concerned a failure by solicitors to relay to their client comments made by the court at several interlocutory hearings that the client should have been pursuing a particular kind of relief in its litigation. That would be akin to failing to commence proceedings in time. That too should fall outside of the immunity as the aggrieved client’s cause of action was complete and whole before the proceedings were started and the negligent conduct was completely separate from the litigation.
The primary justification for retaining the advocates’ immunity is to ensure the finality of judicial determinations. However, if a client brings a negligence suit against a former solicitor is that not also a separate proceeding that deals with a different issue?
As Kirby J warned, upholding the immunity not only reduces equality before the courts, but is capable of breeding contempt for the law. His Honour questioned ‘why an anomalous immunity is not only preserved in Australia but now actually enlarged by a binding legal rule that will include out-of-court advice and extend to protect solicitors as well as barristers’.[6]
In these circumstances, can the reasons traditionally given for the immunity still persuade, particularly when the rest of common law world has abolished it?
At the risk of offending the doctrine and re-litigating this issue, perhaps we should continue the debate.
About the Authors:
Valerie Blacker is a commercial litigator focusing on funded litigation. Valerie has been with Piper Alderman for over 12 years. With a background in class actions, Valerie also prosecutes funded commercial litigation claims.
John Speer is a lawyer in the Dispute Resolution and Litigation Team located in Brisbane, Prior to joining Piper Alderman John was an associate to the Honourable Justice B J Collier in the Federal Court of Australia, as well as to Deputy President B J McCabe in the Administrative Appeals Tribunal. John has also worked as a ministerial adviser and chief of staff in the Parliament of Australia.
For queries or comments in relation to this article please contact John Speer | T: +61 7 3220 7765 | E: jspeer@piperalderman.com.au
[1] These matters resulted in a confidential settlement.
[2] New South Wales and Queensland have a ‘split’ profession, meaning that the roles of barrister and solicitor are separated.
[3] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, [5], [38], [39], [45], [46], [53].
[4] Legal Services Commissioner v Rowell [2013] QCAT OCR207-12.
[5] [2014] NTSC 8 at [134] and [137].
[6] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 109 [346].
