Editorial: Barristers at last held accountable

Opinion

Some years back, when seven Law Lords swept away the immunity that had protected British barristers from being sued for negligence, one of their number made a particularly telling comment. Barristerial immunity, said Lord Steyn, was "an anomalous exception" to the basic premise that there should be a remedy for a wrong. The statement demands highlighting as lawyers in this country rail against a ruling which does nothing more than place their degree of accountability on a par with that of most other professionals.

New Zealand barristers have finally been put on the same footing as their British counterparts by a Court of Appeal decision governing negligent conduct in civil court cases. In a split decision, four judges decided an Auckland couple could sue a lawyer who, they said, wrongly let a court decide against them. That, in the public interest, overturns a protection which first took root at the time of the Napoleonic Wars. Predictably, the decision has provoked a series of flimsy and largely self-serving protests from the legal profession.

The Bar Association said the decision would expose courts to potentially spiralling litigation, multiplying by three to five times the length of trials. Barristers, it said, would raise every single point possible so their clients could not turn on them and blame them for losing a case. The objection does not bear close scrutiny. Quite sensibly, the Court of Appeal proposed measuring negligence against a standard of what the reasonably competent practitioner would do, having regard to the standards normally and reasonably adopted by the profession. That suggests a barrister would have to do something blatantly wrong; there would, in other words, have to be gross negligence. Barristers are surely intelligent enough, and astute enough, to know the lode-bearing aspects of a case. Only a small minority would not trust their professional judgment. And in any event, the Judiciary should be sharp enough to curtail excursions into time-wasting irrelevancies.

Other objections are, similarly, exaggerated - the claim, for example, that the ruling will prompt a wholesale rerunning of original cases. That would happen only if there is a large number of barristers prone to obvious bungling. Further, as the Court of Appeal noted, relitigation is already a feature of the New Zealand system in other ways.

Justice Anderson, the court's one dissenting voice, complained that any change should have been done by Parliament, not the court. Parliament, indeed, may yet act if the decision promotes a mass of sprawling cases and an eventual bogging down of the civil court process. It could either reverse the ruling or, more likely, orchestrate changes to the legal process. But on the evidence of what has happened in Britain that is unlikely to be necessary.

The Court of Appeal noted that continuing barristerial immunity would only further erode public confidence. The law, it said, could not expect respect if it was seen to absolve lawyers who negligently caused loss. These are valid concerns. There has long been public unease about the accountability of a system that will subject lawyers to disciplinary action but does not aim to provide remedies.

Barristers should accept this concern. They should not be hoping against hope for a successful appeal against the Court of Appeal decision. Instead, they should acknowledge that the risk of legal liability and public exposure are powerful antidotes to lapses in standards. Even a cursory glance at the activities of other professionals provides sufficient evidence of that.

Down through the years barristers have been involved in the cases that led to many other professions losing their immunity. Until now they have managed to escape parallel accountability. Their own interest, not that of the public, has come first. It is time they accepted that they should be liable for their performance - just as are most other sectors of society.