Court:Anderson P, McGrath, Glazebrook, Hammond and O'Regan JJ
Counsel:P F A Woodhouse QC and J J Troup for Sun Lai (CA17/03)

R M Gapes for Hilda Lai (CA15/03)
A C Challis and G M Wishart for Chamberlains
J A Farmer QC and G M Coumbe NZ Bar Association Intervener
W M Wilson QC and C F Finlayson NZ Law Society Intervener

Judgment:8 March 2005

JUDGMENT OF THE COURT

The appeals are allowed with costs reserved.
REASONS
Para No.

Anderson P (Dissenting)   [1]
McGrath, Glazebrook and O’Regan JJ  [124]
Hammond J  [127]
ANDERSON P
Table of Contents

Para No

Introduction   [1]
The impact of Hedley Byrne  [17]
The speeches in Arthur J S Hall & Co  [32]
Appellants’ submissions  [53]
Respondents’ submission  [73]
NZ Bar Association submissions  [76]
NZ Law Society submissions  [83]
Discussion  [91]
The crux  [110]
Introduction
[1]       In New Zealand a lawyer could not, until now, be liable to a client for negligence in respect of acts or omissions in the conduct of a case in court or so intimately connected with such conduct that they can be fairly said to be a preliminary decision affecting it: Rees v Sinclair [1974] 1 NZLR 180 (CA). This principle, founded in the common law, is often called “barristerial immunity”.
[2]       The law is the same in Australia, as evidenced by Giannarelli v Wraith (1988) 165 CLR 543. Until July 2000, it had also been the law in England for well over a century. Then, in Arthur J S Hall & Co v Simons [2002] 1 AC 615 the House of Lords decided that barristerial immunity should be erased. There was a minority view that it should be retained, but solely in respect of criminal cases.
[3]       The present appeal raises the issue whether there should still be barristerial immunity in New Zealand or whether the New Zealand common law should follow the English decision to abolish.
[4]       The matter came before the High Court as an application to strike out an affirmative defence of barristerial immunity. The Full Court, Salmon and Laurenson JJ, recognised that they were bound by this Court’s decision in Rees v Sinclair. They nevertheless expressed their opinions for the benefit of this Court, anticipating an appeal. Salmon J was for retention of limited barristerial immunity in respect of all civil and criminal proceedings. Laurenson J favoured retention on a limited basis for family and criminal litigation. He would otherwise abolish the immunity.
[5]       Neither Salmon J nor Laurenson J thought that immunity should remain for acts or omissions which do not occur in the courtroom. That is, each favoured abolition of the “intimate connection test”. In the case of Salmon J, this was because the justification for immunity arose solely out of the pressures of the trial process during a Court hearing. He also agreed with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lai v Chamberlains

Details

AGLC: Lai v Chamberlains [2005] NZCA 37
Case: [2005] NZCA 37
Decision Date: 8 March 2005

CaseChat Overview and Summary

- **Parties, Dispute, and Court**: The case of Lai v Chamberlains involves Sun Poi Lai and Hilda Lorraine Lai, the appellants, against Chamberlains, the respondents. The central issue in this appeal is whether there should be barristerial immunity in New Zealand or if the common law should follow the English decision to abolish it. The matter was heard before the Court of Appeal of New Zealand.

- **Legal Issues**: The court was tasked with deciding if the common law principle of barristerial immunity, which protects lawyers from being sued for negligence by their clients for acts or omissions in the conduct of a case in court or intimately connected with such conduct, should remain in New Zealand. The appeal considered whether this immunity should be abolished, particularly in light of the English decision in Arthur J S Hall & Co v Simons which abolished such immunity.

- **Court's Reasoning and Outcome**: The Court of Appeal allowed the appeals, deciding that barristerial immunity should be abolished in New Zealand. The majority of the court found that the arguments for retaining immunity, such as the need for advocates to perform their tasks fearlessly and independently, the risk of relitigation, and the ethical obligation to undertake litigation on behalf of a client, were outweighed by the need for justice and the public's right to seek redress for egregious professional incompetence. The court also considered the impact on public confidence in the legal system and the role of tort law in regulating conduct. The court decided that the issue of retrospective or prospective effect of this change in the law should not be addressed at this time.

- **Final Orders**: The appeals were allowed with costs reserved, indicating that the issue of costs would be addressed in memoranda by counsel. The decision effectively abolishes barristerial immunity in New Zealand, aligning the law with the English decision in Arthur J S Hall & Co v Simons.

Orders