Industry 4 April 2017

Lawyers Beware – High Court shoots holes in Advocates Immunity

In the recent decision of Kenirjan v Lepore [2017] HCA 13 (29 March 2017) the High Court solidified its most recent decision in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, holding advocates immunity does not extend to advice given in relation to settlement offers because they do not affect the judicial determination of the case.

In Attwells the Court held that advocates immunity did not extend to negligent advice which leads to a compromise of litigation by agreement between the parties.

In Kenirjan, the Court, with Edelman J delivering the main judgment, declined to distinguish or reopen Attwells and accordingly allowed the appeal, remitting the case back to the District Court of NSW. Kenirjan makes clear that legal practitioners will not be protected by advocates’ immunity for actions and omissions in respect of discussions in both settlement negotiations and resulting settlement agreements. In this regard, it is imperative that legal practitioners exercise care when attempting to resolve a dispute outside of court.

Ironbark is a litigation funder that specialises in insolvency, commercial litigation and class action matters.  Do not hesitate to contact us for a confidential discussion about your matter.

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