Top court backs right to sue lawyers

Lawyers can now be sued by their clients after the country's highest court yesterday confirmed they have lost their immunity from prosecution for negligent handling of cases.

The Supreme Court upheld the Court of Appeal's decision to abolish a common law rule that barristers cannot be sued for work they do in court, and "other intimately connected work".

The decision opens the door for disgruntled clients to seek financial compensation from their lawyers.

But the move was criticised last night for "creating more problems than it solves".

In reaching its decision, the Supreme Court disregarded a recent ruling of the High Court of Australia to retain immunity for lawyers, preferring instead to follow an earlier decision by Britain's House of Lords to abolish barristers' immunity.

"An immunity which shields legal practitioners from liability for breach of that duty is anomalous," the Supreme Court's 94-page decision says. "No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent."

An immunity might be due to status, as in the case of diplomats or heads of state, but all cases required justification.

Chief Justice Dame Sian Elias said the advocate's duties to the court could never conflict with the duty to the client because there were rules by which litigation must be conducted.

"The duties are supported by the disciplinary powers of the court and the legal profession," she said. "They are unlikely to wilt if the immunity is removed."

The legal profession has fought hard to keep immunity, warning that removing it would result in trials being re-heard, jeopardising the finality of the legal process.

Removing immunity would also open the floodgates for claims with no merit, lawyers have claimed.

But the Supreme Court said sufficient avenues existed to prevent any abuse.

Bar Association president Jim Farmer, QC, said the decision created more problems than it solved.

In Britain, where immunity was removed six years ago, courts had had immense problems establishing who was at fault, said Mr Farmer.

In the one case tested, the House of Lords ultimately held that the barrister could not be found to have been responsible, or at least totally responsible, for the disappointing outcome for her former client.

Mr Farmer said the failure of a medical expert to provide a report on time, and an unreasonable timetable imposed by a judge, were more likely to have caused the poor result than the barrister's shortcomings.

The Law Society's executive director, Alan Ritchie, said barristers were only one part of the process.

"Are expert witnesses to be sued next? Are judges to be sued? A barrister's got to make often split-second decisions on what questions to put in cross-examinations.

"You don't really want a situation where the barrister becomes over-defensive because of a fear that a suit's around the corner, just for taking the wrong step."

The Law Society had wanted immunity to be retained.

But Mr Ritchie did not expect a flood of claims.

The protection was removed by a Court of Appeal decision in March which found in favour of Auckland couple Sun Poi and Hilda Lai.

The couple were directors of a company being sued by creditors, and law firm Chamberlains represented them in the High Court case in 2002.

The couple sued the firm over its conduct and lost the case after Chamberlains used immunity as a defence. But they won their appeal.