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Immunity hangs in the balance

Immunity hangs in the balance

AS THE High Court considered whether barristers could retain their immunity for negligence last week, the profession waited with bated breath.While the Court reserved its decision on the…

AS THE High Court considered whether barristers could retain their immunity for negligence last week, the profession waited with bated breath.

While the Court reserved its decision on the immunity question, which will determine whether Ryan D’Orta-Ekenaike could proceed with a negligence claim against his barrister, the president of Australia’s peak legal body said the implications of the case could be considerable.

Under current Australian law, a barrister cannot be sued for a poor performance in court. It is a common law immunity from suit by a client in respect of anything that the advocate omits to do in conducting the client’s case in court, Law Council president Bob Gotterson explained.

“For lots of advocates the immunity doesn’t operate with regard to most of the stuff they do,” Gotterson said.

The implications of the current situation can be felt on a number of different levels, Gotterson said. Firstly, it means that advocates can conduct cases freely and independently “without the chilling spectre of litigation hanging over them”.

From the court perspective, it means they are not called upon to retry cases over the presentation of a case that the court has already tried, Gotterson said. Also, the court knows that the advocates can discharge their overriding duty to the court without complicating concerns about civil liability.

In NZ, a reason given for maintaining barristers’ immunity was that judges sensed there is a strong public policy interest in ensuring that lawyers were always free to take the hopeless cases in court, said public law expert Colin Keating from NZ firm Chen Palmer & Partners.

Keating claimed in a TVNZ breakfast show interview in January that “at the end of the day there are always going to be some clients of lawyers who are poorly treated by their barristers and will have genuine grievances and will be seeking some sort of accountability. There is a human rights angle to that … If it is good enough for accountants and plumbers and solicitors, why not barristers?” Keating said.

As seven justices considered the case of D’Orta-Ekenaike, who claims to have been wrongly advised to plead guilty in a rape case, Justice Michael Kirby said “I just have to tell you … the rest of the community, including the rest of the professional community, regards this as the courts looking after their own”.

Law Council president Gotterson said that changes to the current situation could mean a working court would be conducted with a scrupulous eye to possible liability consequences. “This could well mean adding expense as more and more time is spent checking out every nook and cranny.”

Also, for the barrister, Gotterson said, “discharging the overriding duty to the court would be complicated by considerations of self exposure to civil liability”.

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Immunity hangs in the balance
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