A recent decision in the NSW Court of Appeal provides a timely reminder of the importance of advocate’s immunity in precluding litigants from a second bite of the cherry through professional negligence claims.  

Bott v Carter [2012] NSWCA 89 also provides a useful (and short) summary of the position with respect to advocate’s immunity in Australia following the High Court’s retention of the doctrine in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12.

In short, Bott arose out of an unsuccessful personal injury claim brought against a former employer in the NSW District Court. The appeal from those proceedings failed following which special leave was refused. Mr Bott brought a claim in negligence against his solicitor and barrister in the District Court proceedings but that claim was struck out by Hislop J in April 2009. Mr Bott appealed against the summary dismissal of his claim.

The Court of Appeal comprising Justices McColl, Basten and Wheally dismissed the appeal. They found that the doctrine of advocate’s immunity was sufficiently wide to cover all of the conduct alleged to constitute negligence by the solicitor and barrister. In doing so, they expressly referred to the authority in D’Orta that precludes the re-agitation of issues already determined by a court:-

“Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate’s negligence in the conduct of litigation had caused damage to the client.”

Professional negligence cases arising out of litigation must be considered carefully. If the allegations seek to re-agitate an issue already addressed by another court, then consideration ought be given to seeking summary dismissal of the claim. Even if the issue said to give rise to the negligence or breach of retainer has not been addressed by another court, advocate’s immunity may well still apply if the issue in question amounts to work done outside a court that leads to a decision affecting the conduct of the case in the court.