Lai v Chamberlains
[2006] NZSC 70
•11 September 2006
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IN THE SUPREME COURT OF NEW ZEALAND
SC 19/2005
[2006] NZSC 70
BETWEENCHAMBERLAINS
Appellants
ANDSUN POI LAI
RespondentBETWEENCHAMBERLAINS
Appellants
ANDHILDA LORRAINE LAI
Respondent
Hearing:18-20 October 2005
Court:Elias CJ, Gault, Keith, Tipping and Thomas JJ
Counsel:A C Challis for Chamberlains
P F A Woodhouse QC, P N Collins and D Webb for Sun Lai
R M Gapes and C Weaver for Hilda Lai
W M Wilson QC and C F Finlayson for New Zealand Law Society
J A Farmer QC, G M Coumbe and A Thorn for New Zealand Bar Association
Judgment:11 September 2006
JUDGMENT OF THE COURT
A.THE APPEAL IS DISMISSED.
B.The appellants must pay the respondents $30,000 in costs together with disbursements, to be fixed if necessary by the Registrar.
REASONS
Para No
Elias CJ, Gault and Keith JJ [1]
Tipping J [97]
Thomas J [203]
ELIAS CJ, GAULT AND KEITH JJ
(Given by Elias CJ)
[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.[1] 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.
[1]Injury Prevention, Rehabilitation, and Compensation Act 2001, s 317(1).
[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.[2] And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions,[3] often under the influence of developing international law.[4]
[2]Originally the Crown was immune from all legal proceedings: see Holdsworth A History of English Law (3 ed 1944), vol 9 at 8; De Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) at [4-038]. In New Zealand, see the Crown Proceedings Act 1950.
[3]State immunity in New Zealand continues to be a matter of common law. In the UK, the common law is now replaced by the State Immunity Act 1978. For modification by case law see, for example, Playa Larga v I Congreso del Partido [1983] 1 AC 244 (holding that the former absolute immunity was restricted where a state was engaged in trade); R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 3) [2000] 1 AC 147 (holding that immunity for acts of torture did not survive ratification of the International Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment 1984).
[4]Such as the Vienna Convention on Diplomatic Relations 1961 (upon which the Diplomatic Privileges and Immunities Act 1968 (NZ) was based), general covenants such as the Convention against Torture (relied upon in Pinochet) and the Convention on Jurisdictional Immunities of States and their Property (considered in Jones v Minister of the Interior of the Kingdom of Saudi Arabia [2006] 2 WLR 1424 at [8] per Lord Bingham of Cornhill; [47] per Lord Hoffmann), and developing rules of customary 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.[5] Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley.[6] The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia.[7] No such sweeping immunity is known in Canada[8] or in the United States federal jurisdiction.[9]
[5][1974] 1 NZLR 180.
[6][1969] 1 AC 191.
[7]Giannarelli v Wraith (1988) 165 CLR 543.
[8]Demarco v Ungaro (1979) 95 DLR (3d) 385, a judgment of the High Court of Ontario which seems to have been treated as authoritative. See Linden Canadian Tort Law (7 ed 2001) 156‑158.
[9]Ferri v Ackerman, 444 US 193 (1979).
[5] Rondel v Worsley has been controversial.[10] Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell & Co[11] expressed regret that the argument in that case had not extended to:[12]
…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.
[10]See, for example, Cane Tort Law and Economic Interests (2 ed 1996) 233-237; Hill “Litigation and Negligence: a Comparative Study” (1986) 6 OJLS 183 at 184-186.
[11][1980] AC 198.
[12]At 223.
In 2000, the House of Lords held unanimously in Arthur J S Hall v Simons[13] that the immunity was no longer justified in relation to the negligent conduct of civil proceedings. And, by a majority, it held that no sufficient public policy considerations justified its retention in respect of the negligent conduct of criminal proceedings.[14] Rondel v Worsley is therefore no longer good law in England and Wales.[15] After the decision of the Court of Appeal in the present case adopting Arthur J S Hall v Simons had been delivered, the High Court of Australia by a majority of 6:1 has however affirmed the immunity as a matter of Australian law in D’Orta-Ekenaike v Victoria Legal Aid.[16]
[13][2002] 1 AC 615.
[14]At 683 per Lord Steyn; 684-685 per Lord Browne-Wilkinson; 707 per Lord Hoffmann; 753 per Lord Millett; and, in respect of civil proceedings only, at 726 per Lord Hope; 735 per Lord Hutton; 750-752 per Lord Hobhouse.
[15]In Scotland, the Inner House of the Court of Session in Wright v Paton Farrell [2006] SLT 269 expressed the view that immunity in respect of criminal proceedings remained capable of justification in Scotland notwithstanding the contrary view of the majority in Arthur J S Hall v Simons. No opinion was expressed with respect to civil proceedings.
[16](2005) 214 ALR 92.
[6] The appeal to this Court therefore raises an important point which has led to divergent results in comparable jurisdictions and upon which appellate courts have themselves been divided. The principal issue on the appeal is whether the public interest requires retention of immunity for barristers and solicitors in respect of their conduct of litigation and work closely related to it. A second issue concerns whether any change to the immunity must now be left to Parliament: it is argued that the immunity has been recognised by statute through s 61 of the Law Practitioners Act 1982; alternatively, it is suggested that removal of the immunity is not suitable for judicial determination because it entails departure from long-settled authority.
The appeal
[7] Mr and Mrs Lai have issued proceedings in the High Court in Auckland claiming damages against Chamberlains, a firm of solicitors, for professional negligence. The negligence alleged (which is pleaded in alternative claims based on contract, tort, and breach of fiduciary duty) was in acknowledgements made by Chamberlains to the High Court before the terms of a consent order were finalised. The consent order resolved civil litigation to which Mr and Mrs Lai were parties and in which they were represented by Chamberlains. Chamberlains, by its statement of defence, denies all breaches of duty alleged and raises general defences of lack of causation and contributory negligence. It also raises the further defence of immunity to all causes of action. Chamberlains says the immunity arises because the actions claimed to be negligent were intimately connected with the conduct of the case in court.
[8] Mr and Mrs Lai applied to strike out the defence of immunity. The strike out was denied in the High Court by a Full Court on the basis that it was open to the trial judge to find that some of the advice said to be negligent was sufficiently connected with the hearing as to be covered by the immunity.[17] Rees v Sinclair, as a decision of the Court of Appeal, was binding on the High Court. But both Judges expressed reservations about earlier justifications for the immunity and about its scope. Salmon J thought that modern case management had undermined some of the reasons for the immunity. Laurenson J thought public policy no longer justified the immunity in civil cases, although he would have retained it for criminal and family cases. If unconstrained by authority, both Judges would have confined the immunity to conduct of litigation in court on the basis that the “intimate connection” test is unworkable.[18]
[17]Lai v Chamberlains [2003] 2 NZLR 374.
[18]At [60]-[61] per Salmon J; [135] per Laurenson J.
[9] On appeal, the Court of Appeal held by a 4:1 majority that there was no longer sufficient justification for retention of immunity for barristers in respect of negligence in civil litigation.[19] The Court left the issue of liability for negligence in the conduct of criminal proceedings to “another day”.[20] The majority Judges declined to follow Rees v Sinclair, preferring the reasoning in Arthur J S Hall v Simons. Hammond J, with whose reasons McGrath, Glazebrook and O’Regan JJ expressed agreement in a short joint concurring opinion, was of the view that none of the arguments considered in Rondel v Worsley for the immunity remained persuasive. Anderson P dissented. He thought the immunity was “as necessary for the due administration of justice for the public benefit, and for the advancement of our other democratic protections, as it ever was…”.[21] In addition, he took the view that it would be wrong to overrule a long-standing decision founded on considerations of public policy and that the law in New Zealand should remain aligned with that in Australia.
[19][2005] 3 NZLR 291 (McGrath, Glazebrook, Hammond and O’Regan JJ; Anderson P dissenting).
[20]At [191] per Hammond J.
[21]At [108].
[10] A second issue considered by the Court of Appeal was whether s 61 of the Law Practitioners Act 1982 constitutes legislative recognition of the immunity of law practitioners from suit, so that the immunity cannot now be removed by judicial decision. Section 61, which first appeared in similar terms in New Zealand legislation in 1861,[22] provides:
61Status of barristers
Subject to this Act, barristers of the Court shall have the powers, privileges, duties, and responsibilities that barristers have in England.
[22]Law Practitioners Act 1861.
The precursors of s 61 did not in their terms apply to solicitor-advocates, and in Rees v Sinclair the Court expressly reserved the question whether solicitor-advocates were immune from liability for negligence in litigation.[23] The distinction between barristers and solicitor-advocates has ceased to have practical effect in the application of s 61 because s 43(3) of the Law Practitioners Act 1982 permits any solicitor to practice as a barrister and, in that capacity, the solicitor has “all the rights, powers, and privileges of a barrister”.
[23]At 186 per McCarthy P; 190 per MacArthur J.
[11] In the Court of Appeal in the present case, Anderson P took the view that the immunity from suit was a “privilege” of barristers within the meaning of s 61. Since at 1982 (the date of enactment of s 61) barristers in England were immune from liability for negligence in work intimately connected with litigation,[24] he considered that the immunity “is now vested in New Zealand barristers as a matter of statutory entitlement which a Court is not competent to remove”.[25] In any event, Anderson P took the view that the immunity at common law should not be modified by court decision, because it would operate retrospectively. Any change should therefore be left to the legislature.
[24]As Saif Ali had held.
[25]At [120].
[12] The Judges in the majority in the Court of Appeal considered that the immunity was not properly to be regarded as a “privilege” within the meaning of s 61. They also took the view that the “powers, privileges, duties, and responsibilities” of barristers could not be frozen at the date of the enactment of s 61 and that New Zealand courts could reconsider the immunity, at least “if it is changed in England”.[26] The majority considered that there was no occasion to leave change to the common law immunity to legislative correction. They considered that the circumstances did not compel prospective declaration of the law (assuming such declaration could be made).
[26]At [172] per Hammond J, with whom McGrath, Glazebrook and O’Regan JJ agreed.
[13] In accordance with the view of the majority in the Court of Appeal, the defence of immunity was struck out. The firm appeals with leave. It is supported by the New Zealand Law Society and the New Zealand Bar Association as interveners. They advocate retention of the immunity as based on sound policy and contend that, in any event, it cannot now be overturned by judicial decision because the immunity has been legislatively recognised. Alternatively, they contend that if the immunity is not upheld, the decision of the Court should be prospective only, allowing the immunity to be maintained by the firm in the present proceedings.
Advocates’ immunity at common law
[14] Rees v Sinclair accepted the policy justifications for the immunity developed in Rondel v Worsley. Rondel v Worsley expressed a new rationale for an old immunity in English law. The immunity had been of doubtful scope in New Zealand because of the different circumstances of New Zealand legal practice.[27]
[27]The profession in New Zealand has never maintained a strict division between barristers and solicitors comparable to that in the United Kingdom. In New Zealand, since the Supreme Court Ordinance 1841, the practices of barristers and solicitors have been able to be combined. Similar divergence from the English model of legal practice meant that in Canada barristerial immunity did not become part of Canadian law: see Demarco v Ungaro.
[15] In England, barristers did not enter into contracts for their professional services. As a result, it was held in the 18th century that barristers could not sue for their fees.[28] The immunity of barristers from civil liability was recognised a little later, whether initially as a result of the absence of contractual obligations between barrister and client is not clear.[29] It was however rationalised on that basis in some of the subsequent cases.[30]
[28]Thornhill v Evans (1742) 2 Atk 330 at 332.
[29]This explanation was described by Lord Diplock in Saif Ali at 216 as “facile”. See, also, Arthur J S Hall v Simons at 676 per Lord Steyn.
[30]For example, Kennedy v Broun (1863) 14 CBNS 677.
[16] In New Zealand, the Supreme Court Ordinances of 1841[31] and 1844 and the subsequent Law Practitioners Acts of 1854 and 1858, in what were clearly intended as temporary expedients, permitted anyone enrolled as a barrister or solicitor to act in both capacities. There was no clear impediment to their entering into contracts with clients for professional litigation services and it seems they could sue for unpaid fees.[32] After the Law Practitioners Act 1861 and until enactment of the Law Practitioners Act 1982, barristers could practice as solicitors and those admitted as both could combine their practices as both. Most did so. Whether they could therefore also be sued for breach of contractual duties of care and skill in the performance of litigation services was uncertain until Rees v Sinclair adopted the immunity as restated in Rondel v Worsley. Although the determination that legal practitioners are immune from liability for negligence in respect of in-court work was not necessary for disposal of the appeal in Rees v Sinclair itself, it has been treated as authoritative in subsequent cases.[33]
[31]Later disallowed and replaced with the 1844 Ordinance.
[32]The point was assumed by McCarthy P in Rees v Sinclair at 186. It was discussed in Robinson and Morgan-Coakle v Behan [1964] NZLR 650 (SC).
[33]See, for example, Biggar v McLeod [1978] 2 NZLR 9 (CA); Harley v McDonald [1999] 3 NZLR 545 (CA).
[17] The reassessment in Rondel v Worsley of the immunity of barristers had been prompted by the recognition of liability in tort for negligent advice in Hedley Byrne & Co v Heller & Partners.[34] Unlike the wider earlier immunity which had attached in English law to all work undertaken by barristers, the modern immunity described in Rondel v Worsley was confined to advocacy in court. In this, Rondel v Worsley reduced the scope of the earlier barristerial immunity considerably. The immunity was grounded on the public interest in the administration of justice. It was thought to serve the public interest in four principal ways, discussed in Rondel v Worsley and in the subsequent cases:
· by preventing the fear of subsequent litigation from eroding the barrister’s independent duties to the court (in case of conflict with the interests of the client) and from promoting defensive lawyering which is wasteful of time and resources;
· by avoiding effective re-litigation, otherwise than on appeal, of controversies already resolved by court decisions, unsettling public confidence in outcomes and prolonging litigation;
· by recognising that barristers, in application of the “cab-rank obligation”, cannot pick and choose their clients to minimise risk of future recrimination and that it is in the interests of justice that barristers continue to agree to represent anyone who needs representation, however difficult the person or distasteful the cause;
· as an essential part of a wider scheme of immunity which applies to judges, jurors, and witnesses in court proceedings.
[34][1964] AC 465 (HL).
[18] The first of these reasons, based upon the advocate’s independent duty to the court, was the principal reason relied upon in Rondel v Worsley. Lord Reid was of the view that this duty may often lead to conflict with the client’s wishes or “with what the client thinks are his personal wishes”:[35]
Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.
[35]At 227-228.
[19] The immunity recognised in Rees v Sinclair applied to both barristers and solicitors. Rees v Sinclair held that the immunity applied both to the conduct of cases in court or preparation “intimately connected” with it.[36] In Saif Ali the immunity in England was extended to solicitor-advocates.[37] The House of Lords in the same case adopted the “intimate connection” extension suggested in Rees v Sinclair. In New Zealand, Woodhouse J in Biggar v McLeod considered that the connection could be more simply expressed as attaching to the conduct of litigation.
[36]The test suggested by McCarthy P at 187.
[37]At 215 per Lord Wilberforce; 224 per Lord Diplock; 227 per Lord Salmon.
[20] In the cases which have followed, the grounds identified in Rondel v Worsley as justifying the immunity have been closely scrutinised and re-weighed. What is striking is the shifting emphasis both within courts and over the forty years since the immunity has been put on its modern footing. Such shifts do not suggest sound foundations.
[21] Thus in Saif Ali Lord Diplock doubted whether some of the policy considerations which had persuaded the House eleven years earlier in Rondel v Worsley remained compelling. He observed of the barrister’s duty to the court:[38]
To say of a barrister that he owes a duty to the court, or to justice as an abstraction, to act in a particular way in particular circumstances may seem to be no more than a pretentious way of saying that when a barrister is taking part in litigation he must observe the rules; and this is true of all who practise any profession.
[38]At 219.
Neither was Lord Diplock impressed by the reliance in Rondel v Worsley on the cab‑rank obligation. He doubted its strength as a matter of practice, but in any event thought the risk of being pursued subsequently by an obstinate and cantankerous client unwilling to accept disappointment was not one that justified depriving all clients of any possibility of a remedy for negligence.[39] Lord Diplock considered only two grounds could justify the immunity: that it is part of the general immunity which attaches to all who participate in proceedings before a court; and the risk that court decisions would be challenged in collateral proceedings before other courts of co-ordinate jurisdiction (a consideration he thought applied only to decisions reached after a contested hearing). In the same case, Lord Wilberforce[40] and Lord Russell of Killowen[41] considered that the first of these reasons (the general immunity of participants in court) could not justify the immunity of counsel for negligent conduct of proceedings.
[39]At 221.
[40]At 214.
[41]At 233.
[22] In Giannarelli, the 1987 High Court of Australia decision which adopted Rondel v Worsley, Mason CJ[42] too thought that only two public policy justifications for the immunity warranted serious examination. But the first reason was one rejected by Lord Diplock: the barrister’s duty to the court. The second was the damage that would be caused to the administration of justice if court decisions could be collaterally attacked in negligence suits against counsel. In the same case, Wilson J[43] relied also on the absolute privilege accorded to those who participate in court proceedings. Brennan J[44] considered the most significant reason for the immunity to be the chilling effect of civil proceedings upon counsel’s primary duty to the court. Dawson J[45] thought the most cogent reason for the immunity was the privilege against civil liability for all participants in court proceedings (although he also thought the risk of collateral challenge important). Toohey J[46] did not find it necessary to consider the policy justification for the immunity. Deane J, who agreed with Toohey J and so did not find it necessary to determine the point, expressed the view that none of the policy considerations relied upon by the Judges in the majority were sufficient to:[47]
…outweigh or even balance, the injustice and consequent public detriment involved in depriving a person, who is caught up in litigation and engages the professional services of a legal practitioner, of all redress under the common law for “in court” negligence, however gross and callous in its nature or devastating in its consequences.
[42] At 555.
[43] At 572-573.
[44] At 579.
[45] At 594-595.
[46] At 609.
[47]At 588.
Arthur J S Hall v Simons
[23] In Arthur J S Hall v Simons in 2000, the immunity was reassessed by the House of Lords and rejected as a matter of English law. It was generally accepted that in civil proceedings the boundaries of what was or was not within the scope of the immunity on the “intimate connection” test had proved unworkable.[48] All seven Law Lords held that the immunity was no longer justified in relation to negligent conduct of civil proceedings. Lord Steyn, Lord Browne-Wilkinson, Lord Hoffmann and Lord Millett held also that no sufficient public policy considerations justified retention of the immunity in respect of the negligent conduct of criminal proceedings. Lord Hope, Lord Hutton and Lord Hobhouse would have retained the immunity for criminal proceedings largely because of the nature of criminal trial and appeal.[49] Most of the arguments previously used to justify the immunity were brushed aside without difficulty.
[48]At 707 per Lord Hoffmann; 724 per Lord Hope; 729 per Lord Hutton; 745 per Lord Hobhouse.
[49]Lord Hobhouse considered that the question had not been sufficiently addressed on the appeal to enable a definitive answer to be given.
[24] None of the Law Lords considered that the cab-rank principle provided justification for the immunity.[50] Lord Steyn expressed doubts about its observance as a matter of practical importance in the administration of justice.[51] Lord Hoffmann thought that fear of litigation was not likely to be the principal reason why barristers would prefer to be free of acting for a client under the cab-rank rule: being “tiresome or disgusting” were more immediate reasons.[52] Lord Hope thought the significance of the rule in daily practice was “not great” and that there was no sound basis for thinking that removal of the immunity would have the effect of depriving anyone of representation.[53]
[50]See 678-679 per Lord Steyn; 696 per Lord Hoffmann; 714 per Lord Hope; 740 per Lord Hobhouse. Lord Browne-Wilkinson and Lord Millett expressed their agreement with Lord Steyn and Lord Hoffmann.
[51]At 678.
[52]At 696.
[53]At 714.
[25] The argument that consistency with the immunity of other participants in court proceedings was justification for the immunity of advocates was also dismissed briefly by the majority and in respect of civil proceedings by the minority.[54] Lord Hoffmann considered it a false analogy because judges and witnesses, unlike advocates, owe no duty to a party in respect of evidence given in court.[55] Lord Hope thought the argument a make-weight. On the other hand, Lord Hobhouse[56] and Lord Hutton,[57] dissenting as to criminal proceedings, considered that the liability to which defence counsel in criminal proceedings might be exposed would be unfair if all other participants were immune. They thought the immunity was necessary to protect the performance of an important public duty, essential to the administration of justice.
[54]As to the analogy with witnesses see 679 per Lord Steyn; 697-698 per Lord Hoffmann; 714 per Lord Hope; 740-741 per Lord Hobhouse.
[55]The position of an expert witness may need reassessment (as Lord Steyn noted at 679). See [54] below.
[56]At 741.
[57]At 731.
[26] The Law Lords in the minority as to criminal proceedings considered that the risk of liability in negligence would erode the exercise of independent judgment by advocates in criminal proceedings. But Lord Steyn and Lord Hoffmann (with whom Lord Browne-Wilkinson and Lord Millett expressed agreement) took the view that the advocate’s duty to the court would not be affected by removal of the immunity. Both thought it significant that there was no indication that duties to the court have been undermined in jurisdictions where advocates do not have immunity.[58] Lord Steyn, Lord Browne-Wilkinson and Lord Hoffmann thought it was necessary to keep the risk of litigation in context: the courts differentiate between errors of judgment and negligence; it will be difficult to convince a court that better advocacy would have resulted in a more favourable outcome in the first proceedings; and the argument that unfounded actions might impact negatively on the conduct of advocates was dismissed by Lord Steyn as “a most flimsy foundation, unsupported by empirical evidence”.[59] Lord Hoffmann emphasised that the duty to the court is backed up by court and professional disciplinary powers. Observing the rules could never put the advocate at risk of liability in negligence:[60]
It cannot possibly be negligent to act in accordance with one’s duty to the court and it is hard to imagine anyone who would plead such conduct as a cause of action.
[58]At 681 per Lord Steyn; 695 per Lord Hoffmann.
[59]At 682 per Lord Steyn; 684 per Lord Browne-Wilkinson; 687 per Lord Hoffmann.
[60]At 692-693.
[27] The key issues in Arthur J S Hall v Simons were whether the principles of finality in litigation would be undermined if advocates are not immune from actions for negligence and whether the nature of the criminal justice system requires retention of the immunity in respect of those proceedings. All Law Lords in Arthur J S Hallv Simons were agreed that the immunity of advocates was not necessary to protect finality in civil litigation. Re-litigation in respect of civil proceedings was held to be adequately deterred by the rules of res judicata and issue estoppel and by the power of the court to prevent abuse of its process.[61] Lord Steyn, Lord Hoffmann, Lord Browne-Wilkinson and Lord Millett took the view that the power of the court to prevent abuse of process, as developed in Hunter v Chief Constable of the West Midlands Police[62] in relation to collateral challenge to criminal convictions, was sufficient protection for the public interest in finality of criminal process also.
[61]At 680 per Lord Steyn, in apparent reference to such cases as Henderson v Henderson (1843) 3 Hare 100; 67 ER 313, discussed below at [59] and [71-72].
[62][1982] AC 529.
[28] In Hunter, it was held that an action against the police for assault was an abuse of process because it amounted to a collateral attack on the plaintiffs’ earlier convictions, against which they had appealed unsuccessfully. The convictions and the decision on appeal had entailed rejection of the plaintiffs’ claims that confessions had been obtained as a result of the assaults. The proceedings were an abuse notwithstanding the fact that the parties to the proceedings were not the same, as required for res judicata or issue estoppel.
[29] The Hunter principle that it may be abuse of process to impugn an earlier decision has been applied to claims for professional negligence against solicitors in civil proceedings, in cases where the immunity was not in issue.[63] In Arthur J S Hall v Simons, however, the Law Lords saw little scope for abuse of process on the principle applied in Hunter in relation to claims for negligent conduct of civil proceedings. Lord Steyn thought it would ordinarily be unnecessary to rely on the Hunter principle where the negligence is claimed in respect of the conduct of civil proceedings because “[t]he principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with this risk”.[64] Lord Browne-Wilkinson expressed some doubt about the application of the Hunter principle to civil judgments (noting that the rules of res judicata and issue estoppel are more restrictive).[65] Lord Hoffmann thought a negligence action in respect of the conduct of civil proceedings would seldom bring the administration of justice into disrepute:[66]
Whether the original decision was right or wrong is usually a matter of concern only to the parties, and has no wider implications.
[63]Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394 (CA); Walpole v Partridge & Wilson [1994] QB 106 (CA); Smith v Linskills [1996] 1 WLR 763 (CA); Acton v Graham Pearce & Co [1997] 3 All ER 909 (HC).
[64]At 680.
[65]At 685.
[66]At 706. This approach is consistent with that more fully developed by Lord Hobhouse, as discussed at [35] below.
There could be exceptions where collateral challenge might be unfair to someone else. Lord Hoffmann gave as an illustration the impact upon the successful party in an earlier defamation proceeding.
[30] Criminal cases were different. Lord Hoffmann suggested that criminal convictions are in the nature of in rem determinations and pointed to the fact that the scope for re-examination of convictions on appeal is much wider than in civil cases.[67] Convictions based on guilty pleas were, he thought, no different. Lord Hoffmann suggested that there could be exceptions where collateral challenge would not amount to an abuse of process, such as a failure to advise on an appeal on a point of law.[68] Lord Steyn regarded collateral challenge to a subsisting conviction as “the paradigm of an abusive challenge”. But while Hunter did not provide an inflexible rule, he thought it would be “prima facie an abuse to initiate a collateral civil challenge to a criminal conviction”:[69]
Ordinarily therefore a collateral civil challenge to a criminal conviction will be struck out as an abuse of process.
[67]This too is a point made by Lord Hobhouse at 746-767, referred to at [36] below.
[68]At 706, citing Walpole v Partridge & Wilson.
[69]At 679.
[31] Because the Hunter principle was sufficient protection for collateral challenge to criminal convictions and in unusual cases where such challenge to civil determinations would amount to abuse, Lord Hoffmann considered that re‑litigation was no reason to give lawyers immunity against all actions for negligence in the conduct of litigation. Such response was disproportionate. The other Law Lords in the majority on this point agreed.[70] Lord Millett in addition expressed the view that an immunity for advocates according to whether they were conducting civil or criminal proceedings was indefensible.[71]
[70]At 679 per Lord Steyn; 685 per Lord Browne-Wilkinson.
[71]At 752.
[32] The Law Lords in the minority thought that collateral challenge to a subsisting conviction was only part of the problem in removal of the immunity from negligence in the conduct of criminal proceedings. Lord Hope and Lord Hutton agreed that the problem of collateral challenge was sufficiently answered by the power to prevent abuse of process.[72] But they considered that Hunter was insufficient answer to the damage that would be caused to the administration of justice in criminal proceedings if immunity were not retained. They were concerned with the nature of criminal process and the appropriateness of advocate liability for negligence within it. On this view, the Hunter principle does not address the right question.
[72]Lord Hutton (at 730) expressly agreed with Lord Hoffman that Hunter was adequate to deal with the risk of abusive collateral challenge to subsisting convictions. See, also, Lord Hope at 722.
[33] Lord Hope pointed out that the Hunter principle, though apt to meet the case of collateral challenge to a subsisting conviction, provided an incomplete pattern of protection to serve the public interest in the field of criminal justice:[73]
There are various events which may arise in the course of a criminal trial, such as things done or not done which may cause delay or continued detention in custody, which may operate to the client’s disadvantage irrespective of the question whether he is in the end of the day acquitted or convicted or, if he is convicted, the conviction is set aside. Then there is the problem about what happens if the conviction is set aside on appeal. The appeal may have been taken on grounds other than that the advocate was negligent because the high standard which is needed to set aside a conviction on that ground cannot be satisfied. But once the conviction has been set aside the way will be clear for allegations which would not satisfy that standard to be made because the client’s action can no longer be dismissed or struck out as an abuse of process. It should not be forgotten that the setting aside of the conviction does not of itself mean that the client no longer has a claim in damages: see Acton v Graham Pearce Co [1997] 3 All ER 909. He may have been detained in custody, or lost his job or suffered in other ways for which he may wish to be compensated.
[73]At 722-723.
Lord Hope thought the pattern of protection provided by the immunity was inadequately replaced by the abuse of process response, because of “the risk that the removal of the immunity would in some cases lead to a defensive approach by advocates”[74] and the risk they would be exposed to harassment at the instance of “clients who may be devious, vindictive, and unscrupulous”.[75] Nor did he think such liability was necessary to provide an appropriate response to someone who complains of poor representation. On “the other side of the balance” were: the special mechanisms developed in criminal procedure to prevent miscarriages of justice; the availability of compensation for miscarriages of justice (under the Criminal Justice Act 1988 (UK) or through ex gratia payment); and professional disciplinary mechanisms for misconduct which can be activated by the client or the trial judge.[76]
[74]At 724.
[75]At 720.
[76]At 720-721.
[34] Lord Hutton agreed that preventing collateral challenge was only part of the benefit for the administration of criminal justice secured by the immunity. He considered that the removal of the immunity would be detrimental to the public interest even in cases where the conviction had been set aside or where the client did not complain about wrongful conviction. The public interest was not so much based on the risk that the advocate would not do his duty because of divided loyalties but on the view that:[77]
…it is not right that a person performing an important public duty by taking part in a trial should be vexed by an unmeritorious action and that such an action should be summarily struck out.
[77]At 731.
[35] Lord Hobhouse was of the view that abuse of process and the immunity are distinct and separate: “[t]hey do not serve the same purpose”.[78] He considered that the public interest to be protected was not the risk of inconsistent decisions (which the law “tolerates”, at least where there is no additional element of vexation),[79] but the working of the criminal justice system. Lord Hobhouse emphasised that civil process provides “a system of relative justice”.[80] Its character is that one party seeks a remedy for infringement of rights. The public interest is not in the outcome, but in the provision of a system for resolving civil disputes and enforcing civil rights, which is “a necessary part of a society governed by the rule of law not by superior force”. If something goes wrong in litigation, the court must consider whether putting it right will cause injustice to the other party. If the error is caused by the party’s lawyer, excluding the potential for liability will “make it more difficult to do justice between the plaintiff and the defendant not less difficult”. The appeal process is not apt to provide the remedy for lawyer negligence. That is illustrated by the rules which strictly control the admission of new evidence on appeal. Preserving the rights of clients against their lawyers “assists the doing of justice between plaintiff and defendant in civil litigation”.[81] The economic remedy was therefore the right remedy.
[78]At 743.
[79]Explaining (at 751) that development of the Hunter principle into a rule that a claim for negligence cannot be brought in respect of a conviction unless the conviction is first set aside would be “an anomalous judge-made bar to a negligence action which does not at present exist”.
[80]At 744.
[81]At 745.
[36] Lord Hobhouse considered the criminal process to be “of a fundamentally different character to the civil process”:[82]
The legitimate interest of the citizen charged with a criminal offence is that he should have a fair trial and only be convicted if his guilt has been proved. It is not an economic interest. His interest like his potential liability under the criminal law stems from his membership of the society to which he belongs – his citizenship. If the charge against him has not been proved, he should be acquitted. If he has been wrongly convicted, his appeal against conviction should be allowed. If he has been wrongly or excessively sentenced, his punishment should be remitted or reduced. His only remedy lies within the criminal justice system. This is appropriate. The civil courts do not have any part to play in such matters. The relevance of what the advocate does during the criminal trial is to the issues at that trial, not the remoter economic consequences of the outcome of that trial.
Any involvement of the citizen in the criminal justice system may have adverse consequences. There are adverse consequences for witnesses which they in the public interest have to accept. There are certainly adverse consequences for those suspected of or charged with criminal offences. They may be held in custody. They normally have to attend their trial. They may be arrested and subjected to interviews or searches or tests which would otherwise be an infringement of their civil liberties. They may be acquitted after a long and traumatic trial. They may be convicted but have their conviction overturned on appeal. Thus they will to a greater or lesser extent suffer disadvantage and loss including loss of liberty and reputation.
Provided that the relevant persons have acted in good faith, the citizen has to accept this as part of the price he pays for living in the community and enjoying the protection of the criminal law. A defendant who is detained in custody but acquitted at his trial receives no compensation for his loss of liberty or for having had serious allegations made against him. The same applies if he is convicted and sentenced at his trial but has his conviction quashed on appeal. He too receives no compensation. Those who have paid for their own defence have no assurance that they will necessarily be awarded costs.
[82]At 747-748.
[37] After pointing out that a wrong conviction may arise for any of a wide number of reasons, Lord Hobhouse referred to the system of criminal compensation in the United Kingdom, under legislation which “strikes a balance between those encounters with the criminal justice system which the state should compensate and those which it should not”. The policy is not “indiscriminate compensation for erroneous convictions”. In those circumstances:[83]
To provide a tort based liability to pay compensation in respect of the role of only one of the participants in the criminal justice system would not only destroy this balance but also produce a capricious distribution of compensation between ultimately acquitted defendants.
Not only would this create a lottery from the client’s point of view, it would have serious impact upon the administration of justice:
From the point of view of the administration of justice it would expose the professional advocate to a risk of litigation which would handicap him in performing his duty under the criminal justice system and disinterestedly assisting, particularly at the appellate level, in the correction of errors and remedying miscarriages of justice. To argue for a higher need for a supposed redistributive justice to enable the defendant to recover civil damages from his advocate, begs the question where the greater justice lies in relation to criminal litigation as well as the question whether such a need is indeed higher than the need to facilitate as far as possible the rectification of miscarriages of justice within the criminal justice system.
[83]At 749.
Lord Hobhouse, like Lord Hope and Lord Hutton, would therefore have retained the immunity in respect of the conduct of criminal proceedings.
[38] The differences between the majority and the minority positions in relation to criminal proceedings turn on the appropriateness of the immunity as an adequate response to the need for finality and the proper administration of criminal justice. The majority, too, considered that criminal proceedings are different from civil proceedings. The differences in the nature of criminal proceedings, expressed in similar terms by Lord Hoffmann and Lord Hobhouse, are why the majority considered it would be ordinarily an abuse of process to claim damages for negligence in criminal proceedings if the claim entailed collateral challenge to a subsisting conviction. The majority and minority disagreed on retention of the immunity because the minority believed that preventing collateral challenge to a subsisting conviction was not sufficient protection for the criminal justice system.
D’Orta-Ekenaike v Victoria Legal Aid
[39] Unlike Arthur J S Hall v Simons, D’Orta-Ekenaike was a criminal case. The High Court of Australia was presented directly with the issue on which the House of Lords had divided. Moreover, the case raised in stark form the matters which in Arthur J S Hall v Simons had exercised Lord Hobhouse in particular. D’Orta-Ekenaike’s conviction had been overturned on appeal. There was thus no collateral challenge to a subsisting conviction. Indeed, the negligence alleged in the civil proceedings had not been a ground of appeal. D’Orta-Ekenaike complained that he had been pressured by his legal aid lawyer into pleading guilty to a charge of rape. His plea was later vacated and he was convicted at a trial at which the Judge allowed evidence of the earlier guilty plea to be led and then gave an inadequate direction on the use to which it could be put. The Judge’s failure to give an adequate direction was the basis upon which the conviction was set aside. At the new trial (at which the evidence of the earlier plea was not admitted), D’Orta-Ekenaike was acquitted. He issued proceedings claiming damages for deprivation of liberty during the period of his imprisonment between conviction and appeal, for his resulting mental condition, for loss of income, and for the costs associated with the appeal and re-trial. The High Court had to consider whether Giannarelli was correct in two respects. First,
as to the conclusion that s 10(2) of the Legal Profession Practice Act 1958 (Vic) did not impose on barristers liability in negligence.[84] Secondly, as to the conclusion that at common law advocates are immune from liability for negligence in respect of the conduct of litigation in court or in work intimately connected with it.
[84]Section 10(2) makes barristers in Victoria liable to their clients for negligence “to the same extent as a solicitor was on [23 November 1891] liable to his client for negligence as a solicitor”. The majority in Giannarelli were of the view that in considering the immunity the correct comparison was with solicitors as advocates, and that as at 1891 they were immune from liability for in-court work. It is not necessary to consider this aspect of D’Orta-Ekenaike further for the purposes of the present appeal.
[40] The principal majority opinion was a joint one by Gleeson CJ, Gummow, Hayne and Heydon JJ. They upheld the immunity, recognised in Giannarelli, as justified for two reasons: as a necessary protection for “the judicial system as a part of the government structure”; and because the immunity is an essential part of “a series of rules …designed to achieve finality in the quelling of disputes by the exercise of judicial power”.[85]
[85]At [25].
[41] The joint majority opinion expressly disavowed any reliance on most of the justifications for the immunity considered in Rondel v Worsley and the cases which followed it, including Giannarelli. They were “at most” of marginal relevance to whether the immunity was sound.[86] The potential for conflict between the advocate’s duties to the court and the duties to the client was based on the wrong assumption that there was any such conflict: the duty to the court was paramount and the question was not whether an advocate owes the client a duty of care, but whether there is an immunity from suit. The cab-rank principle was irrelevant to the solicitor-advocate and, although “highly desirable”,[87] was insufficient basis for the immunity. Reference to the difficulty of the advocate’s task was “distracting and irrelevant”.[88] Although “not irrelevant”, the chilling effect of the threat of civil suit was “not of determinative significance in deciding whether there is an immunity from suit”.[89]
[86]At [25].
[87]At [27].
[88]At [28].
[89]At [29].
[42] Gleeson CJ, Gummow, Hayne and Heydon JJ emphasised that the immunity was not based on any “special status” for advocates. Nor did it even depend upon “characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function”:[90]
Rather, the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.
[90]At [44]-[45]. Therefore not agreeing with the views expressed by Lord Hutton, referred to at [34] above.
[43] The justification based on finality was considered to have as much force today as when Giannarelli was decided. No legislative changes prompted reconsideration. Nor did the Judges who joined the majority opinion consider that the different approach taken in England in Arthur J S Hall v Simons or in Canada and the United States compelled reconsideration in Australia. They considered that the House of Lords had been influenced by art 6 of the European Convention and by judicial perception of social and other changes in the United Kingdom which could not be readily transposed to Australia. In Canada and the United States prosecutors and judges were immune from suit. In looking to the United States it was necessary to take into account the doctrine of collateral estoppel as developed there and the fact that findings in appeal cases as to lawyer error may be binding in subsequent malpractice suits. The principles of finality therefore found “different expression in different jurisdictions”.[91]
[91]At [64].
[44] Gleeson CJ, Gummow, Hayne and Heydon JJ pointed out the different circumstances in which a claim for the professional negligence of an advocate can be made. Such a claim can arise where the client maintains that an earlier final decision was wrong, but no correction can be obtained in the proceedings themselves (perhaps because crucial evidence not called was available at the hearing and so is not admitted on appeal). It can arise where the challenge is to an “intermediate consequence” not able to be fully remedied in the original proceedings (as where a conviction is set aside on appeal but in the meantime the client has been in prison).[92] Or it can arise where the client is put to unnecessary expense. None of these consequences could be wholly cured within the original litigation. “And yet the judicial system has arrived at the result it did”:[93]
The consequences that have befallen the client are consequences flowing from what, by hypothesis, is a lawful result. So, to take the present case, the imprisonment of which the applicant seeks to complain is lawful imprisonment. In a case where the client would say the wrong final result is reached, the result in fact reached is, by hypothesis, one that was lawfully reached. Whether the lawful infliction of adverse consequences (such, for example, as imprisonment) can constitute a form of damage is a question that may be noted but need not be answered.
[92]At [68].
[93]At [70].
[45] The Judges who joined the joint majority opinion considered that there was no satisfactory basis to draw a distinction between claims which would amount to abuse of process and those which would not. They rejected the distinction drawn in Arthur J S Hall v Simons between civil and criminal proceedings: the line between the two was difficult to draw; and civil judgments were as worthy of respect as those reached on the trial of offences. Where a final result is challenged in a suit for negligence against counsel conducting the earlier proceedings, they considered it of significance that the client will always have been a party to the earlier proceedings. They were of the view that the principle of finality required that the final result in the earlier proceedings should be incontrovertible, at least by a party.
[46] Nor did the joint majority think it appropriate to make an exception for “intermediate” results. The grounds on which an intermediate result is set aside on appeal may be unrelated or at best only indirectly related to the alleged negligence (since the question on appeal is not counsel error but miscarriage of justice). They thought the lack of connection made the principle that for every wrong there must be a remedy “too attenuated to be of any relevant application”.[94] They concluded that intermediate results should not be treated differently from final results.
[94]At [82].
[47] The third type of consequence considered was a claim for wasted costs. Since it would usually involve a direct or indirect challenge to the outcome on which the disposition of costs depended, the joint majority concluded that no such claim should be permitted:[95]
…lest a dispute about wasted costs become the vehicle for a dispute about the outcome of the litigation in which it is said that the costs were wasted.
[95]At [83].
[48] McHugh J agreed with the views of Gleeson CJ, Gummow, Hayne and Heydon JJ as to the adverse consequences for the administration of justice if advocates did not have immunity. He agreed that many of the former justifications for the immunity were no longer sound. They included the potential for conflicting duties and the strains of the conduct of court proceedings. He considered that the immunity arose because advocates owe no actionable duty of care in respect of their conduct in court or in respect of conduct intimately connected with in-court conduct. The immunity for advocates was part of a wider exception on public policy grounds from the general rule that reasonable foresight of harm will give rise to a duty of care. Comparable limitations of liability attach to police officers in respect of negligent conduct of investigation of crimes and apprehension of criminals and to service personnel engaged in active operations. The immunity of advocates similarly rests on reasons of public policy:[96]
The common law takes the view that the harm that is likely to be done to the administration of justice by permitting such actions is greater than the harm done to individuals by refusing them such causes of action.
[96]At [102].
[49] McHugh J thought that in Arthur J S Hall v Simons the House of Lords had underestimated the importance of maintaining confidence in the administration of justice in respect of civil proceedings and had overestimated the court’s ability to limit re-litigation in a negligence trial. He considered that Australian law as to strike out and abuse of process differed from English law. He took the view that advocacy in the courts is a “unique profession”:[97]
[97]At [104].
Advocates play an indispensable part in the administration of justice.
Their duty to the court precluded reasoning by analogy from the liability of other professions. McHugh J thought two other “conclusive” factors were the difficulties of proving that, but for the advocate’s negligence, a different result would have ensued and “the undermining of public confidence that would flow from inconsistent verdicts”.[98] He considered that in criminal cases the prospect of re-litigation is “especially invidious”.[99] But whether a claim arises out of civil or criminal litigation, “it can only be guesswork as to whether the negligence made any difference to the result”:[100]
That is because the opinion of a third party – a judge or a jury – is interposed between the negligence and the injury.
Since judges and jurors cannot give evidence of their reasoning, the “unreality of determining the causation issue in most cases” as well as the “undermining of public confidence by collateral attacks on final decisions of courts” were for McHugh J the “persuasive public policy bases that justify the immunity of advocates from suit”.[101] Relevant too was the immunity of other participants in legal proceedings which:[102]
…rests on the necessity that those who participate in the administration of justice should not be hampered in the discharge of their …role by the need to consider whether their conduct might be actionable.
[98]At [113].
[99]At [162].
[100]At [164].
[101]At [190].
[102]At [192].
[50] Kirby J dissented. He considered that the immunity was:[103]
…a wholly exceptional exemption from the ordinary liability that other professional and non-professional persons face before the courts of Australia for conduct arguably much less blameworthy, in circumstances of equivalent care and attention, involving errors seemingly less culpable and perilous, if the complaints are believed.
[103]At [240].
He considered that the case could be disposed of on the basis that Giannarelli was authority for immunity only in respect of in-court negligence, and should not be extended to the out-of-court conduct in issue in the claim being considered. If Giannarelli stood for a wider legal rule, Kirby J favoured reconsideration of it on the basis that a wider immunity in application of the Victorian legislation was historically incorrect. Kirby J also considered the “more fundamental question” of whether the immunity exists today as a matter of common law.[104] He concluded that there is an “overwhelming case” against maintaining the immunity, agreeing with Arthur J S Hall v Simons that none of the justifications for the immunity which have formerly been put forward remain compelling.[105] The boundary of the immunity is, he considered, “ultimately indefinable”.[106] Immunity is “an over-wide protection”.[107] To address collateral attack, vexatious litigation and the need for finality it would, he thought, “not be beyond the capacity of Australian law to define proportionate protections as has been done in other jurisdictions”.[108] In any case, a claim of legal professional negligence “is necessarily different, in fact and in law, from the issue that has been earlier litigated and determined”.[109]
[104]At [310]. A matter that would only have arisen in the case if it was accepted that the Victorian legislation imposed equality on barristers and solicitors as at 1891, leaving the common law to evolve.
[105]At [312].
[106]At [325].
[107]At [330].
[108]At [332].
[109]At [333].
[51] Callinan J concurred with the majority. He considered that the role of the advocate differed from other professions because “[t]here are few absolute truths in the law and litigation”.[110] Advocates should not be singled out for liability when witnesses, jurors and judges are not. The reasons for retaining the immunity he considered to include: the advocate’s duty to the court; the “risk, expense and
vexation” of collateral proceedings;[111] difficulties in drawing the line between non-negligent and negligent errors of judgment (because litigation is not susceptible to scientific laws and measurements); the difficulties of examining cause and effect because of the “inscrutability of juries” and the independence of judges;[112] the impact upon the “valuable” cab-rank rule;[113] the fact that Parliament has not seen fit to abolish the immunity; and the necessity of the immunity to the “orderly functioning of the system of justice in this country”.[114]
Reconsideration of the immunity
[110]At [369].
[111]At [370].
[112]At [373].
[113]At [377].
[114]At [380].
[52] The immunity cannot be retained in its present form. The test of “intimate connection” (which has as its touchstone the in-court conduct of litigation) has been uncertain in application and arbitrary in effect.[115] The difficulties in setting the boundaries are illustrated by the present case, where the High Court took the view that it was unclear whether concessions which led to a consent order were within the scope of the immunity. Such difficulties themselves prompt reassessment. In addition, rejection in New Zealand of the former justifications based on the nature of the role of the advocate would make reassessment inevitable because it would shift the proper scope of the immunity. If finality in judicial determination is its justification, immunity would not be warranted unless a court decision is questioned.[116] Yet the immunity recognised by Rees v Sinclair is not limited to cases of collateral challenge. It would need to be recast if, consistently with the approach in D’Orta-Ekenaike, its justification is founded upon the protection of judicial determinations. The first question in considering whether the immunity can be retained in its present form is therefore whether there is sufficient justification for it other than to achieve finality.
[115]The conclusion in Arthur J S Hall v Simons at 729 per Lord Hutton; 745 per Lord Hobhouse; 707 per Lord Hoffmann; 724 per Lord Hope. See, also, Kirby J in Boland v Yates Property Corporation Pty Ltd & Another (1999) 167 ALR 575 at 613.
[116]Professor Cane has queried in this respect the actual decision in D’Orta-Ekenaike to strike out the claim even though the conviction had been set aside on appeal and therefore no subsisting court decision was in issue: “The New Face of Advocates’ Immunity” (2005) 13 TLJ 93.
[53] No jurisdiction now countenances immunity on the basis of the special role of the advocate. We agree with the reasons given by the House of Lords and five of the Judges in the High Court of Australia for the conclusion that no adequate reason for the immunity exists in the nature of the advocate’s role. It would be tedious to re-express those views at any length. The reasons can be shortly stated here.
[54] The advocate’s duties to the court can never conflict with the duty to the client because they are the rules by which litigation must be conducted. Other professions have similar ethical obligations. The duties are supported by the disciplinary powers of the court and the legal profession. They are unlikely to wilt if the immunity is removed. There is no indication that the standard of observance of the duty to the court has been eroded in jurisdictions without immunity for advocates. The cab-rank principle is an important ethical obligation imposed on legal practitioners, but its practical importance in the administration of justice in New Zealand should not be exaggerated. The obligation to provide services to all is an ethic shared with other professions, which enjoy no immunity. The absolute privilege which precludes defamation liability is limited to what is said in court and is directed to a different policy: the candour of participants in court proceedings. The immunities of other participants in court proceedings are not analogous because witnesses and the judge do not assume duties of care to a party. (It is unnecessary to express any view on the liability of the professional witness for negligence in the preparation of reports which may form the foundation of evidence; witness immunity may well not extend so far.) The case of the advocate who assumes the conduct of litigation on behalf of a client to whom he owes duties of care (often as a matter of contractual undertaking) is entirely different.
[55] Although immunity of legal practitioners from liability for negligence has been retained in Australia, the basis of the immunity is fundamentally changed by D’Orta-Ekenaike. Former justifications for the common law immunity have focussed on the role of the advocate in the conduct of litigation. The principal majority opinion bases immunity not on the special position of the advocate (a justification it explicitly rejects), but entirely on the public interest in the integrity of the judicial system. In turn the integrity of the system is expressed to rest on the finality of outcomes arrived at judicially. It requires respect for subsisting judicial determinations and avoidance of the vexation of re-litigation. On this view, judgments must be protected from the collateral attack entailed in a claim that, but for the negligence of the advocate, the client would have benefited from a different outcome. Someone party to earlier proceedings cannot be allowed to assert that a different result would have been obtained if the conduct of the earlier case had not been negligent. This justification, as already indicated, narrows the scope of the immunity considerably. Previously, it attached to all conduct in proceedings and intimately connected with court proceedings. The new rationale would require immunity only where the adverse outcome for the client is a subsisting decision of a court. Moreover, although the joint majority decision acknowledged that there are qualifications to the general principle of finality,[117] it did not explore the qualifications at any length.
[117]Principally, appeals and the rules to set aside a judgment procured by fraud. And there is no impediment to bringing a claim in tort arising out of conduct which also constitutes a crime against a defendant who has been acquitted.
[56] The House of Lords in Arthur J S Hall v Simons was fully alive to the need to protect important values in the legal system from being undermined by re-litigation and collateral challenge to subsisting court determinations. All Law Lords thought the courts have sufficient powers to protect the principles of finality in respect of civil proceedings under the established doctrines of res judicata and under the wide inherent powers to prevent abuse of process. All except Lord Hobhouse agreed that collateral challenges to subsisting criminal convictions were appropriately met by the power to prevent abuse of process under the principle developed in Hunter. The difference between the majority and Lord Hope and Lord Hutton was not on the point of finality. Lord Hope and Lord Hutton agreed that the public interest in finality in subsisting criminal convictions could be sufficiently protected by the power to control abuse of process. They considered, however, that it was not the only value in the criminal justice system requiring protection. Liability of advocates, in their view, was destructive of additional values even where the conviction had been set aside or where it was not in issue (as in a claim based on negligently causing delay). They considered that the impact of the criminal justice system was a cost of being a member of society. The liability of advocates for the adverse outcomes lawfully imposed would be unfair and contrary to the public policy in correction of error only through the criminal justice system itself. These considerations were also important to the majority Judges in D’Orta-Ekenaike.
[57] There are two different considerations in play here. The first is concerned with the principles of finality in the legal system. They are directly addressed by substantive doctrines of law and by rules of procedure which are ancillary to the exercise of substantive jurisdiction. It is only if these methods are inadequate that immunity for advocates could be justified on the basis of the need for finality. The second consideration is concerned with identifying responsibility for adverse consequences of the criminal justice system. If there are public policy reasons against the recognition of liability for certain losses, the direct way to address them is through the elements of the cause of action, rather than through blanket immunity for a particular occupation. The immunity for legal practitioners and its justification on the basis of their status has masked these different considerations.
Does the need to promote finality in litigation provide justification for the immunity?
[58] In general, a decision of a court can be challenged only by appeal to a superior court. The principles of finality familiar to our law are rules of public policy based on considerations of fairness to litigants and the need to bring litigation to an end.[118] They give rise to the substantive rules governing the pleas of autrefois acquit and autrefois convict which prevent those acquitted or convicted of crimes being re-tried. They are behind the substantive rules of res judicata which govern cause of action and issue estoppel. Those rules prevent a party to a final judgment challenging the decision in other proceedings between the parties or their privies.[119]
[118]They are expressed in the Latin maxims “nemo debet bis vexari pro una et eadem causa” (no one should be troubled twice by one and the same action) and “interest rei publicae ut sit finis litium” (the public interest requires litigation of an issue to end).
[119]Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 933 per Lord Guest.
[59] The principles of finality also underlie one application of the broad inherent procedural power to strike proceedings out as an abuse of process. The circumstances in which courts have held proceedings to be an abuse of process include those falling under the doctrine of double jeopardy, where subsequent proceedings for different charges seek a verdict which would in substance be inconsistent with an earlier verdict of acquittal.[120] Proceedings have also been held to amount to abuse of process where defendants are harassed with issues that should have been raised in previous litigation, an approach usually traced to that taken by Sir James Wigram V-C in Henderson v Henderson.[121] Although cause of action and issue estoppel apply only to proceedings between the same parties, the courts have been prepared to find abuse of process in cases entailing collateral challenge by a party to an earlier determination in fresh proceedings with a different party.
[120]The summary of the doctrine by Lord Hailsham in R v Humphrys [1977] AC 1 at 41 was accepted as a correct statement of New Zealand law by the Court of Appeal in R v Roberts (1992) 10 CRNZ 172 at 174. See, also, s 26(2) of the New Zealand Bill of Rights Act 1990.
[121](1843) 3 Hare 100; 67 ER 313.
[60] So in Reichel v Magrath[122] the defendant vicar in proceedings brought by his successor had his defence (setting up his entitlement to the benefice) struck out as an abuse of process because it had already been determined against him in an earlier action he had taken against the Bishop and patrons of the benefice. In the United States, the same purpose is served by the doctrine of collateral estoppel.[123] It prevents re-litigation of an issue of fact or law necessary to an earlier court decision at the instance of a party to the earlier litigation.[124] Mutuality of parties is not required for collateral estoppel.[125] This doctrine and the related doctrine of res judicata:[126]
…relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.
[122](1889) 14 App Cas 665.
[123]The existence of which was treated by Gleeson CJ, Gummow, Hayne and Heydon JJ in D’Orta‑Ekenaike at [63]-[64] as an example of the different expression of principles of finality in different jurisdictions.
[124]Montana v United States, 440 US 147 (1979) at 153; Allen v McCurry, 449 US 90 (1980) at 94.
[125]Allen v McCurry at 94-95.
[126]Allen v McCurry at 94.
[61] There is no general rule of law that the opinion of a court expressed in a judgment cannot be questioned in different proceedings, outside the circumstances of autrefois acquit/convict or cause of action and issue estoppel. Collateral challenge will not therefore always be an abuse. The circumstances in which proceedings may amount to an abuse of process are varied. Lord Diplock in Hunter referred to the power to strike out for abuse of process as:[127]
…the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.
[127]At 536.
[62] The development of the inherent power to prevent further litigation where it would amount to abuse in civil proceedings was reviewed by Lord Bingham in Johnson v Gore Wood & Co.[128] There, the power was invoked to overcome the technical objection to res judicata that previous litigation was resolved by settlement, not court determination.Lord Bingham considered that what constitutes abuse is a “broad, merits-based judgment”,[129] incapable of capture in hard and fast rules of determination and not limited to further litigation between the same parties or their privies. Lord Millett in the same case thought it “primarily an ancillary and salutary principle” which prevents res judicata and issue estoppel being “deliberately or inadvertently circumvented”.[130]
[128][2002] 2 AC 1.
[129]At 31.
[130]At 59.
[63] In New Zealand abuse of process has been recognised as an independent duty of the court to prevent abuse, not limited to fixed categories.[131] In New Zealand Social Credit Political League Inc v O’Brien[132] a claim was struck out as abuse of process even though the defendant was not a party to the previous litigation brought by the plaintiff. His conduct had been in issue in the earlier proceedings and the claim for “malicious civil proceedings”[133] was “no more than the first defamation suit in a different garb”:[134]
Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts – that a matter once determined may not be again litigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures.
[131]Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA).
[132][1984] 1 NZLR 84 (CA).
[133]The legal basis for which the Court of Appeal did not need to consider because of the view it took.
[134]At 95 per Somers J.
[64] In Hunter the power to prevent abuse was exercised directly to prevent the administration of justice being brought into disrepute by collateral challenge to criminal convictions which had not been set aside on appeal. The inevitable result of a successful action against the police for assault in that case would have been to undermine the convictions because the voluntariness of confessions said to have been extracted through the assaults had been critical to the convictions and the dismissal of the appeal against them.
[65] In Hunter and in Arthur J S Hall v Simons collateral challenge to a subsisting criminal conviction was treated as the paradigm of abuse of process. Although allowing that collateral challenge to civil proceedings might in some circumstances amount to abuse of process on the basis of the Hunter principle, the Law Lords thought it unlikely to amount to abuse in the general run of cases. Some additional element of vexation or unfairness to the parties to the original litigation (as in the case where it entailed suggesting that a failed defamation claim should have succeeded) was required to invoke the Hunter principle, in addition to the power to prevent abuse of process “as understood in private law”.[135] Lord Hoffmann, Lord Hope and Lord Hobhouse dealt most fully with the reasons for a distinction between subsisting criminal convictions and subsisting civil determinations in considering abuse of process. They turn on the nature of criminal process and the enhanced opportunity for appeal it provides.[136]
[135]At 680 per Lord Steyn, in apparent reference to the authorities derived from Henderson v Henderson.
[136]Referred to at 706 per Lord Hoffmann; 717-718 per Lord Hope; 745-749 per Lord Hobhouse.
[66] We agree with the view that a collateral challenge to a subsisting conviction will usually be an abuse of process.[137] There may be exceptions however. It would be unwise to be too definite. If appeal is precluded by statute or it would be unreasonable to require an appeal to be pursued (as in the case of minor offending where a sentence has been served) and there is no element of public vexation in the claim proceeding in the circumstances of the case, the public interest may lie in permitting it to proceed. Remedies in public law against the state, considered for example in Maharaj v Attorney-General of Trinidad and Tobago(No 2),[138] illustrate that remedies for error in criminal proceedings are sometimes appropriately obtained outside the criminal justice system itself.[139] Such cases are exceptional. In general, criminal proceedings do not attempt relative justice between the parties but safe convictions on which society can rely. The closer appeal scrutiny reflects the emphasis on objectively correct result. Additional evidence is more readily admitted than in civil appeals. The appeal must be allowed if the conviction is unsafe. It is almost inconceivable that inadequate representation sufficient for advocate liability for wrong result would not also have led to a miscarriage of justice sufficient for successful appeal.[140] Appeal is the method of correction provided by the system. Until set aside on appeal, a conviction is in the nature of a judgment in rem, as Lord Hoffmann suggested. Society is in general entitled to treat conviction as establishing guilt against the person convicted unless the conviction is set aside on appeal.[141] Inconsistent court determinations on the question of guilt would be destructive of confidence in the criminal justice system. For that reason it will usually be abuse of process to bring proceedings which amount to collateral challenge to a subsisting conviction.
Conclusion
[202] For the reasons given I agree that the appeal should be dismissed with costs as proposed by the Chief Justice.
THOMAS J
Introduction
[203] I agree with the decision of this Court that the common law immunity for barristers must go. It is an anachronism that has survived well beyond its natural term. Henceforth, barristers, as with others who proffer skilled advice, will be liable for a breach of a duty to use reasonable care and skill in the service of their clients. It can be anticipated that, in the fullness of time, the contrary decision of the High Court of Australia in D’Orta-Ekenaikev Victoria Legal Aid[249] will be reversed by legislation or, possibly, a future Court.
[249] (2005) 214 ALR 92.
[204] I also agree that s 61 of the Law Practitioners Act 1982 poses no difficulty in reaching this decision. The provision was clearly intended by Parliament to be a reception clause and, as is not uncommon, that clause has been reproduced unchanged through a number of re-enactments. What is, perhaps, somewhat puzzling is the fact arguments based on s 61 gained such momentum in the Courts below. From time to time, it seems, sight has been lost of the fact that the objective in interpreting s 61 is to ascertain the intention of Parliament; not to arrive at a judicially preferred interpretation of s 61 irrespective of the intention of Parliament.
[205] I do not doubt that this Court should have the power to rule that, in exceptional cases, its decision is to have prospective effect only. Lord Nicholls has
made a persuasive case for a final appellate court to possess such a power in In re Spectrum Plus Ltd (in liq).[250] I endorse what he has said.[251] But I agree that there is nothing in this case so exceptional that the decision should have only prospective effect.
[250] [2005] 2 AC 680.
[251] Especially at [39]-[42].
[206] Finally, I endorse the majority’s stance in rejecting a categorical approach and holding that, while civil proceedings involving a collateral challenge to a subsisting conviction will usually be an abuse of process, there may be cases where this is not so.[252] Tipping J takes a different view. He seeks an absolute rule whereby a civil proceeding would invariably be regarded as an abuse of process if it involved a collateral challenge to a subsisting criminal conviction. As this is a point on which the Court has disagreed, I will add a few brief words of my own.
“…Never say never”
[252] See [66] and [69] above.
[207] In condemning formalism I have elsewhere briefly enumerated the characteristics which, to a greater or lesser extent, a judge who subscribes to that approach will exhibit. Among these characteristics is the fact that the judge will have little compunction about proclaiming absolute or near absolute rules. Notwithstanding the lesson of more than two centuries, it is assumed that the dynamic of the common law can be fettered. Treading this formalistic treadmill, the judge will manifest a distrust of judicial discretion and seek to control it with rigid rules or doctrine.[253] I am therefore pleased that the majority have rejected this approach and correspondingly disappointed that Tipping J has chosen to adopt it.
[253]The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005) 63.
[208] Lord Nicholls has pointed out the undesirability of saying “never”. Admittedly in a different context, the distinguished Law Lord said:[254]
Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. “Never say never” is a wise judicial precept…
[254] Spectrum at [41].
[209] I entirely agree. In the constant evolution of the common law it is a lesson which has been learned time out of mind. Yet, judges of a formalistic bent with comparable experience resist the lesson. Why is this? Surely it is a judicial conceit to think that the judges of today can foresee all the varied circumstances that may arise in the future and call for judicial resolution. The finite capacity of the human mind means that it is no more possible to predict the myriad of circumstances or combination of circumstances that will eventuate in human affairs than it is to predict the myriad of patterns that coalesce in a kaleidoscope.
[210] For this reason it is not possible to rule out the possibility that circumstances may arise where it is not an abuse of process to bring a claim in negligence against a barrister even though there is a subsisting conviction. Such circumstances will no doubt embrace the situation where the conviction subsists, or is alleged to subsist, because of the negligence or serial incompetence of the barrister. It may prove to be the case that the appellate process and other procedural safeguards have not been effective in avoiding the conviction. But it would be a mistake to try to predict the unpredictable. Rather, it is better to adopt the wise judicial precept advanced by Lord Nicholls and “never say never”.
[211] The argument can, of course, be advanced that the possibility an absolute rule might defeat a case which should not be caught by it is a very small price to pay for the advantage of obtaining certainty. Indeed, describing the possibility as “remote”, Tipping J makes this argument in those very words.[255] I will touch upon the question of certainty shortly. For the present it is important to appreciate what this argument means. A litigant who may have a meritorious claim in a proceeding which is not an abuse of process is denied access to the courts. He or she confronts what is effectively the defence of barristerial immunity arrived at by another and equally absolute route. This denial of access to the courts, and the denial of the right to justice which goes with that access, will accrue however gross the barrister’s breach of his or her duty of care and however far removed the proceeding is from an abuse of process. The rigidity of an absolute rule solicits injustice; it is an invitation to deny to the individual the Justinian precept that “justice is the set and constant purpose to give every man his due”.
[255] At [192] above.
[212] Driving the formalistic predisposition to stipulate absolute rules is the notion that flexibility will involve inconsistency and that an absolute rule will foster certainty. Indeed, Tipping J makes these arguments.[256] But the perception is incomplete and the promised level of certainty illusory. It is true that if one litigant is able to proceed in proceedings where there is a subsisting conviction and another in the same or similar situation is not there will be an inconsistency. But it will be an inconsistency in the administration of the law, not in the law itself, and an inconsistency which the appellate system is designed to correct. An unacceptable inconsistency in the law exists, however, if neither of two proceedings involves an abuse of process and only one of those proceedings can proceed because of a judicially imposed embargo on the category to which the other belongs.
[256] See [182] and [192] above.
[213] Similarly, the promise of certainty will fall short of expectations. A total ban on civil proceedings where there is a subsisting conviction, irrespective whether the proceeding amounts to an abuse of process or not, will not suppress litigation; it will simply change its nature. A litigant whose proceeding involves a collateral challenge to a subsisting conviction, but which is not, or arguably not, an abuse of process will contend that an exception should be made to the rule in the particular circumstances of the case. The common law, of course, owns many more exceptions to rules than it does rules. Indeed, at times the exceptions become so extensive that the exceptions become the rule.[257]
[257]Notable examples of cases in which a general rule has been effectively overwhelmed by exceptions are Foss vHarbottle (1843) 2 Hare 461; 67 ER 189 and Addis vGramophone Co Ltd [1909] AC 488.
[214] This process is part of the dynamic of the common law and litigants and their lawyers will not be deterred from bringing what they perceive to be a meritorious claim or deeply felt grievance or injustice to the attention of the court simply because a rule has been stated too widely in the past. They will argue that the particular case is not covered by the principle underlying the prohibition. Further, litigants facing an absolute embargo may be prone to argue that the subsisting conviction is not final, or “should not be regarded as final”.[258] In yet other circumstances it may be open to a party to assert that the validity of the subsisting conviction is not in issue, or directly in issue, and that the claim does not therefore deserve the opprobrium of a collateral challenge.
[258] See [175] above.
[215] Other arguments will arise from circumstances that cannot now be foreseen, and I would not presume to exhaust the ingenuity of counsel. Suffice it to say, that the promised level of certainty which it is claimed will follow from an absolute embargo will not eventuate. Indeed, it is possible that it could result in greater uncertainty than a system entrusting the judges with the responsibility to judge whether, in the circumstances of each particular case, the legal process is being abused. As Professor Atiyah has said: “it is sometimes suggested that it is actually easier to predict discretionary decisions than rule-bound decisions, which is only to say that it is often simpler and clearer to identify (and agree upon) the justice of a case than the law”.[259] No one, of course, would deny that, along with justice and relevance to the times, the achievement of greater certainty in the law is a desirable objective. Rather, I am criticising the use of certainty as a mantra; the unquestioning, unthinking and unreasoned assumption that an absolute rule can be equated with certainty.
[259]P S Atiyah Law and Modern Society (1 ed 1983) 95.
[216] Underlying the perception that it would be calamitous to allow a civil proceeding to proceed where there is an subsisting conviction, as evidenced by a number of observations of Tipping J,[260] is the belief that the public reaction would be extremely adverse and the administration of justice would be brought into disrepute if the validity of the conviction was undermined. But, again, this perception can be taken too far.
[260] See [183]-[184] above.
[217] Such a perception underestimates the robustness of public opinion in regard to the legal system and, indeed, could expose the judiciary to the charge of being a
trifle precious. The public accepts that judges are not infallible, that the legal system is not perfect, and that miscarriages of justice do occur. It accepts that the validity of a subsisting conviction may be undermined when a witness is subsequently charged with perjury or the intimidation of a Crown witness. It accepts that apparently inconsistent decisions exist when a person is acquitted in criminal proceedings but is subsequently held liable on the same facts in a civil proceeding. It accepts that, in criminal proceedings where severance is directed, inconsistent decisions may eventuate and that an acquittal in one may cast doubt on the validity of the conviction in the other, or vice versa. Other illustrations could be given, along with the long running public sagas such as, for example, the Arthur Allan Thomas case, which indicate that public confidence in the administration of justice is not dependent on the pretence that the legal system is better than it actually is. The public is quite capable of adopting a realistic appreciation of the judicial system, and it is preferable that confidence in the legal system be based on that realistic appreciation.
[218] In this context, while it will be an important consideration and, at times, even a decisive consideration in determining an application to strike out a claim that the appellate process and possibly other procedural safeguards may not have been exhausted, the adverse reaction of the public to a civil proceeding involving a subsisting conviction should not be overstated. Furthermore, it is to be noted that such cases will be exceptional, and it must be assumed that the reason why the proceeding has been permitted to proceed will be spelt out and available in the public domain. Then, again, the plaintiff in the civil proceeding must ultimately succeed before any significant conclusion can be drawn adverse to the administration of justice. Finally, of course, any adverse reaction to a civil proceeding involving a challenge to a subsisting conviction must be offset against the possibility that the public will react negatively to an apparently meritorious proceeding being struck out on the basis of an absolute rule so that the plaintiff is effectively denied access to the courts and to the justice that is his or her due.
[219] I cannot accept Tipping J’s interpretation of what Lord Diplock said in Hunter’s case,[261] that is, that the Law Lord was merely warning against confining manifestations of abuse of process to fixed categories, and that the learned Law Lord was not saying that when a particular category is being addressed the consequences of the abuse demonstrated by that category should be regarded as variable or discretionary.[262] What Lord Diplock said[263] is plain and clear. Having referred to the inherent power of the court to prevent the misuse of its procedure, he observed that the circumstances in which abuse of process can arise are very varied. The learned Law Lord then stated that it would be most unwise to say anything that might be taken as limiting to fixed categories the kind of circumstances in which the court has a duty (he expressly disavowed the word discretion) to exercise the “salutary power” to strike out a proceeding.
[261] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[262]See [182] above. See also [166] above. It is difficult to see how it can be said that Lord Diplock was only suggesting that “the scope of the doctrine should not be limited to fixed categories” when the Law Lord was speaking of the circumstances in which the court has a duty to strike out the proceeding.
[263] At 536.
[220] I would respectfully reiterate that Lord Diplock has made his meaning plain and clear. He is condemning as most unwise the assertion of a fixed category or categories where the court must, as an absolute rule, strike out a proceeding as an abuse of process. Creating a category of case, that is, civil proceedings in which there is a collateral challenge to a subsisting conviction, where the court must, not may, exercise this salutary power is to do just that. Short of indulging in conspicuous sophistry it is impossible to explain away the clarity of Lord Diplock’s ruling delivered on behalf of a unanimous Appellate Committee.
[221] The attempt to make Lord Diplock’s words mean something other than what they plainly mean is, of course, part of a wider review of the relevant cases and dicta undertaken by Tipping J. His review contrasts sharply with the objective analysis of much the same cases undertaken by the Chief Justice. Cases and dicta are reinterpreted or selectively distinguished and dicta are reconstructed, explained away or diminished as incomplete. Gambits such as these, of course, have not gone unnoticed.[264] As I have already indicated, when Lord Diplock in Hunter’s case said that it would be most unwise to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty to strike out a proceeding as an abuse of process, he meant just that; when Sir Thomas Bingham MR, as he then was, said in Smith v Linskills[265] that Lord Diplock had been “at pains to emphasise the need for flexibility and the exercise of judgment”, he meant just that; when Goff LJ, as he then was, used the phrase “prima facie” in McIlkenny v Chief Constable of the West Midlands & Another,[266] he meant to say prima facie; and so on, and so on. It is a form of judicial torture to strive so hard to make cases and dicta say what they do not say.
[264]See, for example, Jones vSecretaryfor State for Social Services [1972] AC 944 at 966 per Lord Reid. See also Sir Anthony Mason, writing extra-judicially, “The Use and Abuse of Precedent” (1988) 4 Aust Bar Rev 93 at 100.
[265][1966] 1 WLR 763 at 769 (CA).
[266][1980] 1 QB 283 at 332-333 (CA).
[222] What then is the purpose of such an artificial exercise? Is it to show that the absolute rule for which Tipping J contends is founded in authority? That cannot be for there is clearly no precedent for such a rule. Is it an effort to demonstrate that there is no authority which would preclude the creation of such an absolute rule? Having regard to the chain of dicta supporting Lord Diplock’s principle that purpose also faces difficulties and, in any event, establishing the absence of adverse authority does not mysteriously constitute supporting authority. Or is it an attempt to provide some sort of perceived conventional judicial respectability for a committed predisposition or preordained outcome?
[223] I am not saying it is not open to a judge to hold that, where a civil proceeding involves a collateral challenge to the validity of a subsisting conviction, the court is obliged to strike out the proceeding as an abuse of process, irrespective of the particular circumstances, if he or she is of that mind. But the route by which that outcome could properly be achieved would be to acknowledge that Hunter’s case and much supporting dicta are to the contrary, and to then seek to establish that, as a matter of legal policy, it is not “most unwise” to create that category. An alternative route would be to accept the abolition of the defence of barristerial immunity except for civil proceedings where the validity of a subsisting conviction is being challenged. In times when there is a widespread demand for greater transparency and honesty in judicial reasoning, the artifices inherent in exercises of this kind have no place in the Court’s methodology.
Conclusion
[224] The long overdue abolition of barristerial immunity will open the way for claims to be made against barristers who have failed to exercise the requisite degree of care and skill in the performance of their duties. The requisite degree of care and skill will be determined realistically by the courts having regard to the facts of the case.[267] No one doubts that many claims will face formidable difficulties in, for example, establishing causation and the assessment of damages. But dealing with these difficulties is within the capacity of the courts. What is important is that meritorious claims which would have hitherto been blocked by the defence of barristerial immunity may now proceed. Unmeritorious claims can be stopped in their tracks as an abuse of process. Existing principles,[268] which apply to applications to strike out a proceeding as an abuse of process, will no doubt be augmented over time with the development of further principles to provide the legal system with the necessary responsive and proportionate protection.
[267] See Moy vPettman Smith [2005] 1 WLR 581 (HL).
[268] Together with the doctrines of res judicata and issue estoppel.
[225] I reject, as does the majority, the isolation of any particular category for automatic disqualification. Rather, I prefer to leave the question whether there is an abuse of process in the particular circumstances of a claim to the good judgment of the courts. It will be, as Lord Bingham said, “a broad, merits-based judgment”.[269] I trust the judgment, and the discretion, of the judges at first instance to determine the meritorious from the unmeritorious. But if they should err, they can be corrected on appeal.
[269] Johnson vGore Wood& Co [2002] 2 AC 1 at 31.
[226] Overall, what has emerged as a result of the judgment of this Court eradicating an unjustifiable anachronism is a more flexible legal system with a greater capacity to deliver justice in the individual case.
[227] I am pleased to join with the Chief Justice in dismissing the appeal on the basis as to costs which she suggests.
Solicitors:
McElroys, Auckland for Appellants
Glaister Ennor, Auckland for Sun Poi Lai
Simpson Grierson, Auckland for Hilda Lorraine Lai
Bell Gully, Wellington for New Zealand Law Society
Bell Gully, Auckland for New Zealand Bar Association
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