The civil and commercial litigation of Keefe v Marks was an appeal of the decision of a District Court Judge who struck out a claim by a solicitor / law firm, against a barrister for professional negligence and breach of duty. The question to be determined by the court in the appeal was whether a barrister has immunity to claims for professional negligence and whether the solicitor / law firm in this situation had a valid cause of action.
The premise of the civil litigation was that a solicitor had been successfully sued by a client for professional negligence for failing to seek interest on damages in a personal injury claim. The client had been represented in court by a barrister who had been briefed to “advise and appear” by the solicitor. The solicitors had then sought to recover indemnity or contribution from the barrister for the amount recovered by the client in the professional negligence action.
The claim was originally dismissed on the grounds that there was no cause of action, which then led to this appeal. The difficulty in making the claim against the barrister was the common law immunity of barristers from liability for “in-court” negligence, which was the reason why it was originally dismissed in the District Court. The immunity only relates to ‘in-court’ work by barristers and not to work they engage in out of court such as advice, drafting court documents and the like.
However the solicitor was arguing, in his statement of claim, that the barrister owed a duty to the client to exercise reasonable care and skill in advising the client upon the proceedings and in the conduct of pre-trial work not affecting the way in which the cause was to be conducted in court. It was further argued that this same duty was also owed by the barrister to the solicitor and therefore indemnity or contribution should be ordered.
The appeal was dismissed by the Supreme Court in a 2:1 majority judgment. The main reason for the dismissal was that it was acknowledged that for the decision of the District Court to be overturned, it would have to be determined that based on the statement of claim, the solicitor did have a cause of action. For that to be possible, the immunity protecting the barrister from negligence claims would have to not apply to this situation in the sense that whatever negligence had caused the loss to the client would have to link sufficiently to “out of court” conduct not connected to the conduct of the trial.
Gleeson CJ in his reasoning on this point stated “the principle of immunity which applies in such a case cannot be circumvented by drawing fine distinctions between the preparation and the conduct of the case”. It was therefore held that the common law immunity of barristers from liability for “in court” conduct extends to out of court work “intimately connected with or ancillary to the conduct of the case in court”.
Priestley JA gave a dissenting judgment in which he argued that the appeal should be allowed on the basis that a cause of action potentially existed and therefore the case needed to be properly heard in the court. While he did emphasise that his decision said nothing about the prospects of success if the case ever reached a trial and highlighted that the solicitor would have difficulty in proving a causal link between the “out-of-court” conduct and the damage suffered, he argued that it was incorrect of the District Court to strike out the claim on the basis that there was no cause of action.
He stated that the reason the claim was struck out originally was because at least part of the claimed professional negligence was clearly “in court” conduct and therefore the whole of the damage flowed from that and the immunity rule applied, leaving no cause of action. However he argued that it seemed appropriate to regard the statement of claim as alleging that a substantial amount of the breach flowed from the “out of court” conduct and therefore the appeal should be allowed.
Taking into consideration both the outcome of this case as well as the dissenting judgment delivered by Priestley JA, it appears that while barristers are clearly protected in most cases against negligence for their conduct in a case as it relates to services they perform in court, if it can be proved that the negligent conduct leading to damages was sufficiently disconnected from their conduct out of court and in preliminary matters linked to their in court conduct, there may still be scope to argue that they can be liable for negligence claims.