Litig8: High Court reconsiders advocate's immunity

Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this email.

Part 6 of Litig8 July edition

The High Court recently confirmed that the advocates’ immunity is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute which are subsequently embodied in consent orders.

In Atwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, the first appellant and another had been involved in proceedings against the ANZ bank regarding the guarantee for payments of liabilities of a company. Their former solicitors advised them to enter into a settlement agreement to settle the claim and accept liability for an amount larger than that limited under the guarantee. The terms of the settlement were reflected in a consent order for judgment made by the Court.

The appellants sued their former solicitors in negligence for the advice provided in relation to the settlement agreement. The solicitors relied on the advocates’ immunity. The appellants argued that the immunity should be abolished at law or, in the alternative, should not extend to advice which leads to the settlement of the case by agreement between the parties.

A majority of the High Court held that the basis of the advocates’ immunity is the protection of the finality and certainty of judicial determinations. The immunity requires an “intimate connection” between the advocate’s work and the conduct of the case in court. A settlement agreement does not as a matter of fact fall within the principles. It is concerned only with work by the advocate that bears upon the judge’s determination of the case.

In relation to the consent order which embodied the agreement, the majority held that although the consent order may, by the rules of court, be given the same legal effect as an order made after a hearing in court, the judge in this case had made no finding of fact or law which resolved the controversy between parties and could not be said to bear upon the judicial determination of the judge. The agreement was comprised of terms as settled between the parties only.

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