By Stuart Eustice, Partner and Gregor Campbell, Lawyer

The Supreme Court has recently been required to weigh in on the scope of advocates immunity and its applicability in serious injury application brought in County Court.

Background

The applicant (injured plaintiff) in this matter brought a claim against the respondent (his former solicitors) alleging that they had been negligent in preparing his serious injury claim. It was alleged they had failed to obtain and lead evidence in support of his claim for economic loss. As result, it was alleged, his claim against his former employer at common law was constrained to pain and suffering alone.

In defending this matter, the respondent relied inter alia on the doctrine of advocates immunity. The solicitors arguing that the claim in the current proceeding relied on the assumption the applicant’s serious injury application would have been different had the applicant’s case been prepared and presented to include evidence of economic loss.

At first instance an Associate Justice of the Supreme Court agreed with the respondent’s arguments dismissing the claim, noting the weight of prior case law was overwhelmingly in favour of the conclusion that the respondent’s work was clearly connected with the preparation and presentation of evidence in front of a court and therefore attracted the defence of advocate’s immunity.

It was this decision to dismiss the applicant’s claim that became the subject of an appeal.

Submissions

Before the Supreme Court the applicant argued that advocates immunity does not apply to determinations concerning whether a plaintiff has a serious injury, as a determination of a serious injury application is an interlocutory order and not a final one.

The respondents on the other hand argued that the decision to grant or deny a serious injury application was properly characterised as the exercise of judicial power to quell a question in controversy with advocates immunity therefore following.

Held

The Supreme Court agreed that the applicant’s serious injury application was indeed an interlocutory application but disagreed this then did not attract advocates immunity. It was not whether the decision was final or not, it was the quality and character of the exercise of judicial power which determined the application of the immunity.

The applicant’s serious injury application was issued by originating motion, proceeded to trial before a judicial officer, evidence was called and tested and a Judge made a determination on the evidence before him in accordance with the relevant legal principles – all hallmarks of work done which is intimately connected with court and an exercise of judicial function to quell a controversy. Advocates immunity was therefore applicable with respect to work done with regards to the serious injury application.

Discussion

This decision clarifies that when determining whether advocates immunity will apply the Courts will not look at whether the outcome of the application is a decision which is properly classified as interlocutory or final but instead will examine whether it can be properly classified as work intimately connected with court and the exercise of judicial function to quell a controversy.