Judges decide clients can sue lawyers for negligence

The rule that stopped barristers being sued for negligent conduct in civil court cases has been overturned.

In a split decision on Monday, four judges of the Court of Appeal decided an Auckland couple could sue a lawyer they said wrongly let a court decide against them.

But in a dissenting judgment, Court of Appeal president Justice Noel Anderson said the result could be applied to court cases at least six years old. The way lawyers dealt with cases and their arrangements for professional indemnity insurance would have been undertaken on a false basis.

Until now, lawyers could not be sued for negligence for their actions during a court case, or something closely related to the court work, under a rule called "barristerial immunity".

In the main judgment overturning the rule, Justice Grant Hammond said it was wrong for a victim of professional incompetence to have no remedy for the loss caused.

Continuing the immunity would further erode the public's confidence in the legal profession, the judge said.

He said more than 1000 lawyers registered with the Law Society were working only as barristers, whose speciality was representing clients in court. About 8000 more were barristers and solicitors.

Justice John McGrath, Justice Susan Glazebrook and Justice Mark O'Regan supported Justice Hammond's judgment, which followed British law.

The decision retains open immunity for lawyers appearing in criminal cases.

In his dissenting judgment, Justice Anderson said the crux of the case for him was a law that said barristers should have the powers, privileges, duties and responsibilities of British barristers. When it was passed, British barristers did have immunity. Proposed law changes did not affect the immunity, he said.

If it was to be changed, Parliament, not a court, should do it.

President of the New Zealand Law Society Chris Darlow said the society would probably support the Auckland law firm at the centre of the case, Chamberlains, if it chose to appeal.

A Chamberlains spokesman said its insurer would decide whether to appeal.

- NZPA