The High Court of Australia has paid the principle of "advocacy immunity" another visit.
The Journey So Far
In Giannarelli v Wraith (1988) 165 CLR 543 the High Court upheld the principle of advocacy immunity and extended it to work done out of court that affects the conduct of the case in court.
In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, the majority of the High Court reinforced the extended principle as set down in Giannarelli.
In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572, the High Court reinforced the extended principle but did not extend it "to acts or advice of an advocate which did not move litigation towards a determination by a court".
Advising a client to prosecute or settle a case is neither advice nor action which moves litigation towards determination by a court so neither attracts advocacy immunity. But what if an advocate rejects a settlement offer without the client's instructions and the subsequent determination by the court is inferior to the settlement offer ?
Mr Kendirjian commenced proceedings in the District Court of New South Wales to recover damages from Ms Ayoub in relation to a car accident for which Ms Ayoub was responsible.
Ms Ayoub offered $600,000 plus costs to Mr Kendirjian to resolve this matter. Mr Kendirjian's solicitor and barrister rejected the offer without seeking his instructions. Mr Kendirjian obtained judgment in the District Court for $308,432.75 plus costs. That judgment was largely upheld on appeal.
Mr Kendirjian sued his legal representatives for the difference between what Ms Ayoub had offered him and the District Court judgment. The District Court and, on appeal, the New South Wales Court of Appeal accepted that Mr Kendirjian’s legal representatives were immune from liability and dismissed the claim.
But that was all before the High Court handed down its judgment in Attwells. Mr Kendirjian appealed to the High Court.
Mr Kendirjian’s former solicitor accepted the impact of Attwells on his defence to Mr Kendirjian's claim and reached a compromise. His former barrister did not.
The High Court rejected the former barrister's arguments and allowed Mr Kendirjian's appeal.
Somethings Worth Noting about the Decision of the High Court
Could there be a conflict between any findings of fact in the principal proceedings (the claim against Ms Ayoub) and Mr Kendirjian's proceedings against his lawyers ? If so, did that potential conflict justify extending the advocacy immunity principle to settlement advice ?
The two proceedings would involve independent assessments of the knowledge of the key witnesses at different points in time. There was therefore no possibility that the findings in the motor vehicle accident trial would be upset or otherwise affected by any findings in any trial between Mr Kendirjian and his former lawyers.There being no possible conflict, there was no basis for extending the principle further.
What is the necessary essence of the link between conduct prior to a hearing and the determination of the dispute that attracts advocacy immunity ?
The conduct must be more than just a historical link. In other words, just being a step in the litigation process is insufficient.The immunity recognises that in any litigation, lawyers (whether they be barristers or solicitors) act as officers of the court and must act in accordance with their primary duty to the court. That is the action which the immunity essentially seeks to protect whether it is action undertaken inside or outside the court room.If the impugned action (or inaction) lacks that essence, it is unlikely to attract any advocacy immunity.
The name of the case is Kendirjian v Lepore  HCA 13