NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.
[3] The present appeal raises the question whether public policy justifies retention of a limited common law immunity for legal practitioners from claims by their clients for professional negligence. In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.
[4] The existing immunity, which attaches to court representation and work ‘intimately connected’ with it, was not clearly established as a matter of New Zealand law until the 1973 Court of Appeal decision in Rees v Sinclair. Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley. The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia. No such sweeping immunity is known in Canada or in the United States federal jurisdiction.
[5] Rondel v Worsley has been controversial. Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell and Co expressed regret that the argument in that case had not extended to:
. . a more radical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligence even for what he says or does in court ought no longer to be upheld.
Judges:
Elias CJ
Citations:
[2006] NZSC 70
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Constitutional
Updated: 08 September 2022; Ref: scu.431604