With the ink barely dry on its May 2016 decision in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16, a new contest over the scope of advocate’s immunity is afoot in the High Court of Australia.

On 9 February 2017, the High Court heard submissions in Kendirjian v Lepore (Case S170/2016) on whether the immunity extends to negligent advice to reject a settlement offer and continue proceedings.  The court is likely to hand down its decision in the coming months.

Advocate’s immunity in Australia
Advocate’s immunity bars claims against barristers, solicitors and others in the court process, such as expert witnesses, arising from work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” or expressed another way, “work intimately connected with” work in a court:  D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1.

The doctrine of advocate’s immunity has been abolished in the UK and New Zealand, and is subject to limited consumer claim based exceptions in Australia: compensation orders up to $25,000 may be made by the Legal Services Commissioners and Civil Administrative Tribunals of New South Wales and Victoria, pursuant to the Legal Profession Uniform Law adopted by those States.

Otherwise, however, advocate’s immunity continues in Australia based on the public policy ground of ensuring the finality of litigation.  It is not intended as a special privilege  for the legal profession, but to protect the exercise of judicial power against collateral attack and to avoid the re-litigation of disputes.

Since the immunity was confirmed by the High Court in D’Orta-Ekenaike v Victorian Legal Aid, it has been applied in a number of decisions, including cases of negligent advice to settle or not to settle.  However, in Attwells, the High Court clarified that immunity did not apply to negligent advice which resulted in a settlement embodied in consent orders by the court.  While the consent orders reflected a judicial outcome, there was no judicial determination and no “functional connection” between the advice to settle and a judicial determination.  Immunity only applies where the impugned conduct has contributed to the judicial determination.  A mere “historical connection” is not enough.

Kendirjian v Lepore
Mr Kendirjian was injured in a car accident in 1999.  He engaged a solicitor, Mr Lepore.  A barrister, Mr Conomos, was later briefed.  The case went to trial in 2006.  An offer of $600,000 plus costs was made on the first day of trial and rejected by  Mr Kendirjian’s lawyers, allegedly without informing Mr Kendirjian of the amount of the offer except that it was “too low”.  At trial, Mr Kendirjian was subject to damaging video evidence and cross-examination about the extent of his incapacity.  He was ultimately awarded $308,432.75.

After an unsuccessful appeal, Mr Kendirjian sued his lawyers.  His proceedings were dismissed by the District Court in 2014 on the basis that the claim was barred by reason of advocate’s immunity.  That decision was upheld by the NSW Court of Appeal in 2015, prior to the High Court’s decision in Attwells.

The High Court in Attwells had given specific consideration to a case of negligent advice not to settle (as well as negligent advice to settle) and the majority had expressed that advocate’s immunity would not apply in either situation.

Mr Kendirjian was granted special leave to appeal the NSW Court of Appeal’s pre-Attwells decision to the High Court.  The solicitor, Mr Lepore, consented to orders setting aside the Court of Appeal decision and remitting the case to the District Court.

The barrister, Mr Conomos, contested the High Court appeal and sought to distinguish Attwells or persuade the court to reconsider that decision.  Emphasis was placed on the fact that the professional negligence case would call into question whether there was a reasonable basis for the advice not to settle and would therefore necessitate re-litigation of issues determined at trial, including the strength of Mr Kendirjian’s original case, the appropriate weight to be given to evidence (taking into account the credibility and reliability of witnesses) and the correct application of legal principle.

Before reserving its decision, the High Court bench observed at the appeal hearing that such points were argued in Attwells and rejected by the majority: it being difficult to see how advice not to settle could have any bearing on how the case was conducted in court and determined by the court, such that it might therefore fall within the established parameters of the immunity.

The barrister’s attempt here to claim immunity looks likely to fail.  However,  the case may shed light on whether and how a defendant lawyer or witnesses may put in issue the original merits of the case in their own defence: a space to watch for lawyers, experts, their insurers and all litigants.