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Solicitors sued for omissions in pleadings were able to rely on the advocates’ immunity.

In a recent decision, the NSW Court of Appeal confirmed that a practitioner’s preparation of a pleading is intimately connected with the conduct of the case in court. Claims for negligence for preparing pleadings in cases where there has been a final determination by a court will almost always be protected by the advocates’ immunity: Cappello v Lyons [2023] NSWCA 137 (Cappello). A special leave application has been filed.

Advocates’ immunity protects practitioners sued for negligence and breach of contract for the conduct of a case in court or, for work out of court which leads to a decision affecting the conduct of a case in court: D’Orta-Ekanaike v Victorian Legal Aid [2005] HCA 12. The immunity, where it applies, provides barristers and solicitors with a complete defence to professional negligence claims. Because ‘the immunity is an immunity from suit’ (Donnellan v Woodland [2012] NSWCA 2012), it is often appropriate for the application of the immunity to be dealt with summarily.

In cases involving out of court work, the work must be “a preliminary decision affecting the way the case is to be conducted.” This principle reflects the justification for the immunity: the maintenance of confidence in the justice system through protecting the finality and certainty of judicial determinations.

Leaving aside challenges to the existence of the immunity, (it has been abolished in the UK, Canada and New Zealand) most disputes about the immunity are over whether the impugned conduct is sufficiently connected to the final decision in the litigation in which the lawyer is alleged to have acted negligently.

While the test for the connection between out of court work and the determination of a proceeding is expressed in unambiguous terms, in some cases, the result of its application is debatable: Rogers v Roche (no 1) [2016] QCA 340. The degree of connection is usually relative and a matter of assessment.

The courts seem to have assumed the immunity attaches to the preparation of pleadings. In Giannarelli v Wraith [1988] HCA 52, Mason CJ asked: “[i]s the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings . . .?” Answering his own question, Mason CJ stated: “… it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court.”

In Keefe v Marks [2009] NSWCA 713 (Keefe), Gleeson CJ observed that the advocates’ immunity would attach to “giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended.

Occasionally, judges have cast doubt on the proposition that preparing a pleading is so intimately connected with the conduct of the case in court that the advocates’ immunity attaches. In Keefe, in a dissenting decision, Priestly J thought the immunity does not apply to all pleadings dealt with by counsel and in Coshott v Barry [2009] NSWCA 34, Ipp J thought the failure to advise as to the extent of relief to be claimed in proceedings was “too far removed from the actual conduct of the trial to be covered by…the immunity.

In Cappello, a solicitor acted for clients in litigation against a building company that had undertaken works on their property. The case in part concerned the builder’s entitlement to certain progress claims. Judgment was entered for the builder. The clients made a claim against the solicitor alleging he had failed to plead that the builder breached certain clauses of a contract between the parties which, if pleaded, would have avoided liability to pay progress payments .

The court held that advocates’ immunity provided a complete defence to the clients’ claim. The clients appealed and argued that the immunity does not apply to a negligent omission – it only attaches to a conscious or articulated decision about the management of litigation which affects the final determination.

The Court of Appeal drew on authorities such as Keefe and Attard v James Legal Pty Limited [2010] NSWCA 311 in holding that the immunity will attach to a negligent omission intimately connected with the conduct of the case in court and the final outcome. Simpson J stated “[i]t is perfectly plain” the failure by a solicitor to plead a breach of a specific contractual term attracts the immunity and reasoned that the alleged omission in the pleading “no doubt led to multiple decisions in the conduct of [the] litigation, and therefore to the final decision” by the trial judge.

As Simpson J said in Cappello, a pleading is “the fundamental document that underlies all decisions to be made in the conduct of litigation”. As the pleadings define the issues in the litigation, it is difficult to see any circumstance in which they will not have a bearing on their final determination. By dint of their function, pleadings are intimately connected with the conduct of the case in court. Negligence claims arising from their drafting, including through oversight or omission are almost always likely to attract the advocates’ immunity.

Baron Alder is a Partner at Moray & Agnew.