Lawyers seek return of barristerial immunity

The abolition of immunity protecting lawyers from being sued for negligence in civil cases will result in trials being reheard and jeopardise the finality of the legal process, the Supreme Court has been told.

New Zealand Bar Association lawyer James Farmer, QC, yesterday wrapped up a three-day hearing before New Zealand's highest court into whether barristerial immunity should be restored.

The protection covering lawyers' conduct in civil hearings and pre-trial work was removed by a Court of Appeal decision in March.

The court found in favour of Auckland couple Sun Poi and Hilda Lorraine Lai, who sued law firm Chamberlains in 2002 for negligence over its conduct in a High Court case.

The couple lost their case after Chamberlains used barristerial immunity as a defence, but the ruling was later overturned by the Court of Appeal.

The Supreme Court in June allowed Chamberlains to appeal the decision which, because it had removed immunity, was a matter of public interest.

The Bar Association - which with the Law Society was allowed to put forward submissions - feared the lack of immunity would lead to nuisance claims by frustrated litigants, which would be costly on the legal system.

"When you say the case should have been decided differently, you are reopening the controversy and putting in jeopardy the finality of the case," Mr Farmer said.

Claims that the abuse of process doctrine - claims of the court being used for improper purpose - was a better way to deal with issues of negligence were not accepted by the Bar Association, he said.

"We say it is grossly inefficient."

Negligence claims against lawyers were unlikely to be successful, Mr Farmer said.

The Bar Association, the Law Society and Chamberlains all urge that immunity be restored and the matter referred to Parliament, which could examine a range of legal options.

The lawyer for the Lais, Peter Woodhouse, QC, said this week the legal system was robust enough to cope with a number of claims of negligence against lawyers.

The argument was how the administration of justice ought to be preserved by immunity.

"It's unsatisfactory and it's unjust that a client with a meritorious claim is deprived of the opportunity to have the matter determined on its merits."

Australia retained barristerial immunity in a decision two days after the Court of Appeal ruling here.

The Supreme Court reserved its decision.

- NZPA