GRT Article – NSWCA Confirms Advocate’s Immunity applies to Solicitors who prepare Deficient Pleadings

The New South Wales Court of Appeal (NSWCA) has confirmed that advocate’s immunity applies to solicitors who prepare deficient pleadings.[1]

We recommend that this case be considered as part of any decision to pursue an action for negligence against a solicitor

If you have any questions about how it impacts your business, don’t hesitate to reach out to us.

Background
Advocate’s immunity is a long-standing principle derived from English authority. In summary:[2]

“… at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court.” (emphasis added)

In its most recent consideration of the principle, the High Court of Australia (HCA) found that the scope of the immunity “is confined to the conduct of the advocate which contributes to a judicial determination”.[3]

In this case, the appellants unsuccessfully brought proceedings against a building company which had conducted renovation works on their property. Up until five months prior to the trial, the appellants had been represented by the respondent solicitor.

The appellants sued the respondent for professional negligence in failing to plead a particular breach of the contract in the proceeding against the building company. They asserted that, had that breach been pleaded, they would have succeeded. The District Court dismissed this claim.

On appeal, the NSWCA was asked to consider the strength of the breach of contract argument and whether the respondent could rely on a defence of advocate’s immunity.

Finding
The NSWCA found that advocate’s immunity applied because:

Pleadings define the issues for determination and are therefore intimately connected with the conduct of the case in Court and the outcome of the litigation. The pleadings would have led to multiple decisions in the conduct of the proceeding against the building company and therefore to the final decision by the trial judge.
It is immaterial that there was an omission by the respondent, rather than a conscious or articulated decision to exclude the argument by the respondent.

This finding meant that the appeal as a whole failed.

“This article was prepared by Elizabeth Dowrie (Associate)”

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