What can you do if your lawyer fails to act in your best interests, provide adequate advice, or exercise reasonable care in respect of your Court proceedings?
At present, not very much!
The Safe Haven
In New Zealand lawyers involved in court work (usually known as barristers) are immune from being sued for negligence for their conduct at a Court or Tribunal hearing or for any work they complete that is directly related.
Known as ‘barristerial immunity’ this safe haven for lawyers was established in New Zealand in 1974 for reasons of public policy and to protect barrister’s obligations to the Court, including:
A barrister’s duty to their client is secondary to their duty to the Court.
A barrister’s general obligation to act for any person who is able to pay his or her fees, subject to some very narrow exceptions.
The heaven Exposed?
Barristerial immunity was recently questioned by the New Zealand High Court. In that case the claimants sued their layers for advice they received in the course of civil court proceedings. The layers denied negligence and claimed barristerial immunity. The claimants argued that their lawyers should not be allowed to hide behind the immunity.
The Court found that barristerial immunity still applies in New Zealand and the lawyer’s advice could not be tested because of it.
However, the Court did determine that there had been sufficient changes since 1974 to justify a review of barristerial immunity. The Court concluded that there was a continued need for immunity in family and criminal court proceedings, but that the need in respect of civil court proceedings was no longer clear for reasons including:
- The need for evidence to be given orally has been reduced by the increase of written statements from witnesses and legal submissions being exchanged between the parties to the proceedings before any hiring.
- The introduction of case management (particularly in civil matters) has reduced the possibility of legal error.
- The Bill of Right Act appears to have lead to an increased expectation that the law will provide a remedy for a wrong.
- Legal aid has resulted in an increase in family law matters before the Court. This type of litigation involves complex and emotional issues that means the removal of immunity could lead to numerous but unjustified claims of negligence.
It is likely that the Court of Appeal will need to finally determine the future of barristerial immunity. It is something that we all should keep an eye on in these times of increasing litigation.
DISCLAIMER: All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.