It is certain that barrister’s legal immunity from
negligence claims will be abolished. The State Attorneys-General (note the
plural spelling!) have agreed. Civil court cases will no longer be protected
but it is possible that the immunity will remain for in-court conduct in
criminal matters.

Whilst I accept the political reality, this reform will
come at a cost to the community. Barristers’ insurance will increase greatly
and this cost will be passed on to clients. It also raises the spectre of never-ending litigation.

For example: A sues B and loses. A then sues his barrister for negligent
conduct in court. A will (probably) have to prove that, but for the negligence,
he would have won against B. Thus the original claim of A v B may in effect have to
be re-litigated. If A loses against his original barrister, he could then sue
his new barrister for the negligent conduct of the case … and so on to
infinity.

It is worse in criminal trials if the immunity is
removed. If Z is convicted (proof beyond reasonable doubt), then he can sue his
barrister. To obtain damages, he may have to prove that, but for the
negligence, he would have been acquitted. The test in this (civil) action is
probably “on the balance of probabilities”. The (civil) court would, in effect,
be deciding whether Z was guilty or not. If Z succeeded, then he would have a
powerful claim for a pardon. Thus a person convicted by a jury and who loses
his appeals can effectively challenge the conviction in the civil
courts.

As we know, these are litigious times. Ironically, one
cause of litigation is civil lawyers who are now about to lose their
immunity. On balance (and perhaps because I am a criminal lawyer),
I think the immunity should be abolished in civil matters but retained in
criminal matters. It is just unacceptable to invite re-litigation of jury
verdicts.

Peter Fray

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