Advocates’ immunity – a great divide in the privileges accorded to legal professions around the world

Abstract

Advocates’ immunity accords protection from civil liability, most notably claims in negligence, to advocates when undertaking tasks which are “intimately connected” with the conduct of a client’s case in court. The doctrine had a longstanding history in English law and was adopted in many common law jurisdictions such as New Zealand and Australia. Most recently, however, the House of Lords abolished the advocates’ immunity doctrine in England and Wales. The House of Lords held that the many factors upon which the immunity had been based were no longer sufficient to warrant its retention. A short time later, the High Court of Australia reached an entirely different view. The High Court declined to abolish advocates’ immunity and has, arguably, even extended its scope. When the issue arose before the Supreme Court of New Zealand, that court examined these recent developments in English and Australian law in detail and concluded that advocates’ immunity should be abolished. This thesis examines these differing international developments on advocates’ immunity. Given similarities in the development of the advocates’ immunity doctrine in Australia, New Zealand and England, an emphasis will be placed on these jurisdictions. An evaluation of the reasons enunciated by the High Court of Australia in support of retaining advocates’ immunity will reveal that “finality” of litigation will not be threatened by the abolition of the immunity. It will also be argued that the administration of justice would not be prejudiced by the abolition of advocates’ immunity. In order to provide a “solution” to the present dilemma existing within the Australian legal system, the thesis will also consider four possible law reform possibilities. These are: complete abolition of the advocates’ immunity doctrine; reduction of the scope of the advocates’ immunity doctrine; preservation of the status quo; or broadening of the advocates’ immunity doctrine. The thesis will also consider the soundness of the secondary arguments which were adopted by the High Court of Australia in support of the retention of the advocates’ immunity doctrine. It will be argued that none of the reasons accepted by the High Court to support the immunity do in fact provide a coherent basis for the immunity. Accordingly, the thesis will recommend the abolition of advocates’ immunity in Australia. At the very least, the advocates’ immunity doctrine should be revitalised and only be triggered under a narrower scope of conduct. The thesis will conclude that any substantive reform to advocates’ immunity should be taken by legislatures rather than the courts as this would lead to superior results. This thesis will also briefly discuss prospective developments and consider opportunities for further research into this area of the law.