37 38 20 Barristers Immunity Should a barrister be held liable for negligently

37 38 20 barristers immunity should a barrister be

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37 38
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20 Barrister’s Immunity Should a barrister be held liable for negligently conducting the case of his client in a civil law suit? Barrister’s Immunity Barrister’s Immunity: a barrister is immune from an action for negligence at the suit of his client in respect of his conduct and management of a case in court. Reasons for barrister’s immunity? Overriding duty to the court may conflict with duty to client Cab-rank rule Possibility of re-litigation and over-litigation 39 40
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21 Barrister’s Immunity Position in UK : Arthur JS Hall & Co (a firm) v Simons [2002]1 AC 615 Abolished immunity from suit for alleged negligence of barristers and solicitor advocates in the conduct of civil proceedings Reasons against barrister’s immunity: Principle of equal treatment Independent principles and powers of the court adequate to prevent collateral attacks, e.g. strike out for abuse of process of the court Maintenance of high standard of the bar Barrister’s immunity Position in Australia : D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, Kendirjian v Lepore [2017] HCA 13 Confirmed the existence of barrister’s immunity Need for certainty and finality of decision Position in Hong Kong : HKSAR v Hung Chan Wa [2006]3 HKLRD 841 No view was expressed on whether the common law in HK on the question of barrister’s immunity should be developed along the same lines as in England. Hong Kong courts no longer bound by English authorities. 41 42
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22 Legal Professional Privilege (LPP) Also known as the right to confidential legal advice (art.35, Basic Law) The LPP is a constitutionally protected human right to reinforce the rule of law as core value in our society. Without the client’s consent , a lawyer has no right to disclose materials that form the subject matter of the LPP. LPP cannot be overridden by a court or by “some supposedly greater public interest”. Citic Pacific Ltd v Secretary for Justice (No.2)(2015), the Court of Appeal : “It is meaningless to have a right to confidential legal advice if the protection is confined to communications setting out the legal advice. Lawyers need to have the relevant information from their clients before proper advice can be given. Thus, it is a necessary incidence of the right to confidential legal advice that the whole process is protected by privilege so as to safeguard the confidentiality.” 43 44
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23 Access to Justice Justice is not free, but who should pay for it? What is access to justice? Michael Zander, The State of Justice (2000) “Access to justice has become a term of art signifying the arrangements made by the state to ensure that the public at large and especially those who are indigent can obtain the benefits available through the use of law and the legal system.” 45 46
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24 Access to justice Art.35, Basic Law: (1) Hong Kong residents shall have the right to confidential legal advice , access to the courts , choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts , and to judicial remedies .
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