Immunity from suit … High Court has another stab at it … Oxford’s Professor of Obligations in the driving seat … More loose threads appear … No finality in sight for the quelling of immunity cases
Every decade or so the High Court has to revisit the terrain to spackle-up fresh doubts.
Rather than repeatedly trying to refine the scope of the immunity, Britain and New Zealand, unpersuaded about the finality principle, have ditched it – UK in 2000 and NZ in 2006. Canada and the United States courts were never lured along this trecherous pathway.
Last week in Kendirjian v Lepore, the High Court confirmed there was no immunity for lawyers who had advised the plaintiff (appellant) not to accept an offer of settlement of $600,000 plus costs in a personal injury case when the judge later ordered damages of $308,432.75 plus costs.
David Kendirjian commenced negligence proceedings against his solicitor, Eugene Lapore and barrister Mr Conomos. He claimed that they did not advise him of the amount of the settlement, “but merely of the fact that an offer had been made”.
Further, he claimed that they rejected the offer without his instructions.
Conomos’ pleaded defence was that Kendirjian was informed of the settlement offer but he instructed them to make a counter offer of $1.2 million. Conomos’ advice was that the counter offer should be $800,000, inclusive of costs.
The District Court said the lawyers were immune and the Court of Appeal agreed. Subsequently, in May last year, the High Court decided Attwells v Jackson Lalic Lawyers Pty Ltd where a majority held that the immunity from suit did not go so far as to protect negligent advice that leads to a compromise of litigation by agreement between the parties.
The Court of Appeal had relied on obiter in Donnellan v Woodland, where it was found that the immunity would attach if the giving of advice, or the omission to give advice, led to a decision to continue the case. In this way the omission or conduct had affected the case in court by requiring it to continue.
This was followed by the CA in the Kendirjian appeal.
The High Court gave the running in Kendirjian to the new boy, the former Oxford professor of obligations, Justice James Edelman, who said the reasoning of the majority in Attwells cannot be distinguished, it should not be reopened and the appeal against Conomos must be allowed.
It is “difficult to envisage how the immunity could ever extend to advice not to settle a case”.
“Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v Sinclair where his Honour said:
It’s nice that the High Court is still citing New Zealand reasons on the ambit of the immunity 11 years after the NZ Supreme Court scrapped it.
In D’Orta-Ekenaike v Victoria Legal Aid, 16 years later, the High Court turned down an opportunity to reconsider the immunity. Gleeson, Gummon, Hayne and Heydon said there was no reason to depart from the Giannarelli test. D’Orta was decided about five years after the British courts abandoned the immunity.
Attwells v Jackson Lalic Lawyers was heard 11 years after D’Orta, with the High Court again rejecting a submission that the immunity be abolished, yet declined to extend it to negligent advice that leads to settlements.
In Attwells, French, Kiefel, Bell, Gageler and Keane quoted the same well-worn passage from Mason in Giannarelli and emphasised that there must be a “functional connection” between the work of the advocate and the determination of the case.
In Attwells, it had been argued by the lawyer/respondent that it was anomalous for the immunity to apply to negligent advice not to compromise proceedings which leads to a judicial decision, but does not apply to negligence advice that leads to the proceedings being settled.
Edelman reminded everyone that this assumed distinction was rejected in Attwells, because the negligent advice not to settle proceedings “gives rise only to an historical connection between the advice and the continuation of the litigation”.
“As the joint judgment [in Attwells] concluded, the giving of advice either to cease or to continue litigation does not itself affect the judicial determination of the case.”
Further deliberation looks likely on how lightly or heavily does the negligent advice have to touch the historical connection to proceedings before the immunity kicks-in?
Conomos pointed to adverse views about Kendirjian by the District Court trial judge in the personal injury case and that those views about the appellant’s credibility on the extent of his injuries could be used to explain why the judgment awarded was much lower than the settlement offer of $600,000, plus costs.
This was rejected because Edelman said that the assessment of the reasonableness of Conomos’ advice will be assessed at the time the advice was given, not at the time of the District Court judgment.
Consequently, Edelman held that Attwells cannot be distinguished or reopened.
Kiefel CJ, Bell, Gageler and Keane signed on. However, Nettle and Gordon teased at a chink, saying that the negligence action against the respondents could “give rise to a possibility of a challenge to the findings of the District Court”.
The reasonable basis for the advocate’s advice to reject the offer comes into question. Of course, assessment of the advice has to be taken at the time it was given, but Nettle said:
“It is not improbable that one or other side might attempt to demonstrate the way things were, or should have appeared, when the advice was given by reference to the way things were during and at the conclusion of the trial.”
Gordon J reminded us that in Attwells, the majority said it was “not necessary to determine whether the immunity attaches only to the kinds of decision which a lawyer charged with the conduct of a case in court may make without instructions from the client“.
The issue still has loose strands, quite apart from which reading an immunity judgment from the High Court is enough to do in the head of a reasonable person.
In New Zealand when it was scrapped in Chamberlains v Lai, Justice Thomas said the immunity was an “unjustifiable anachronism”. Its removal will mean “a more flexible legal system with a greater capacity to deliver justice in the individual case”.
That sounds refreshing.