Is a Duty of Care Owed by a Barrister to an Opposing Party in Litigation?

In the recent case of Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194 (28 August 2023), the Supreme Court – in the context of a personal injury (psychiatric) claim against the opposing lawyers (including second and third defendant barristers) who acted in underlying litigation –  considered whether a tortious duty of care was so owed by the lawyers, advocates’ immunity and whether express adoption Model Litigant Principles or the Barrister’s Conduct Rules founded such a duty. Relevantly Justice Sullivan, striking out the negligence causes (but leaving the underlying claim for litigation) wrote:

Duty of Care

[57] Despite the content of paragraph 97 of the Amended Statement of Claim, the plaintiff only advanced submissions on the basis that the duty he was pleading and relying upon was a tortious duty of care said to be owed by the second defendant to the plaintiff.[13] That is how I have proceeded.

[58] The underlying facts pleaded against the second defendant concern his conduct in Court as an advocate for a retained client. The plaintiff’s case as pleaded maintains that the second defendant owed a tortious duty of care to the plaintiff variously:

(a) to abstain from acting on instructions of the second defendant’s client in the course of acting in the two interlocutory applications, due to the second defendant’s knowledge that the plaintiff had a serious medical condition (cancer) which was in need of treatment in the future; and

(b) to intervene and warn the plaintiff of some undefined obvious risk in order to avoid the plaintiff suffering an injury or death.

[59] No matter how the duties are cast by the plaintiff, they all raise the issue of whether a barrister, appearing in Court for one party, owes a duty of care to the opposing party.

[60] Where there is contentious and hostile litigation, as a general proposition, no duty of care will be owed by a legal representative of one party to the opposing party. In Lee v Abedian & Ors [2017] 1 Qd R 549,[14] Bond J (as his Honour then was) considered the matter in the context of an alleged tortious duty of care cause of action. It was alleged that a legal firm, and the individual solicitor within the firm, acting for one party had negligently provided a report to a foreign prosecutor. The provision of the report was said to have led to a wrongful prosecution and to the plaintiff being placed into custody. The relief in that proceeding was for both pure economic loss damages, and for general damages for physical, mental and emotional harm.[15] It is relevant to note this personal injuries component to the relief sought in Lee. It is also relevant to note that the conduct complained of in Lee was not engaged in as part of the course of existing litigation between the plaintiff and the client of the legal representatives.[16]

[61] At paragraph [50] Bond J observed:

‘In my view, the suggested duty runs up against the stumbling block of the following statement by Brennan CJ in Hill v Van Erp (1997) 188 CLR 159, 167:

“Generally speaking, however, a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client.’”

[62] His Honour then went on to acknowledge that there were exceptions to the general rule as follows:[17]

“(a) There are cases where although there is no formal solicitor/client relationship, a solicitor’s conduct demonstrates an assumption of responsibility, with known reliance by the plaintiff, such that a duty of care may arise by reason of an implied professional retainer agreement: see the case cited in Carey v Freehills.[18]

(b) There are cases in which a duty of care owed by a professional to someone other than their client has been held to exist on the basis of normal principles relating to negligent misstatement, which include the requirements of assumption of responsibility and reasonable reliance: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465; Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241.

(c) There are also cases in which a duty of care has also been recognised as being owed by a solicitor to someone other than their client (e.g. beneficiaries in a will or the client’s trustee in bankruptcy), but in those cases there is a coincidence of interest between the client and third party: see Hill v Van Erp (1997) 188 CLR 159; Blackwell v Barroile Pty Ltd (1994) 51 FCR 347.”

In that case His Honour found that the facts did not fit within any of those exceptions.

[63] In respect of the pleading against the second defendant, I would similarly observe that the pleaded facts of this case do not fit within any of those exceptions.

[64] His Honour then considered whether a duty of care could arise as a novel circumstance or category. After having examined the principles relating to this proposition at paragraphs [53] to [56], his Honour, in rejecting that such a novel circumstance or category could arise, observed, inter alia, as follows:

“[57] To contend that the solicitors owed the third party a duty of care is to seek to do the very thing which Brennan CJ said could not be done, namely to temper the duty undoubtedly owed to the client by the existence of a duty to a third person whose interests in the transaction are not coincident with the interests of the client. I would apply his Honour’s observations to conclude that a duty of care owed to the client in connection with the production of a report concerning potential legal proceedings against a third party cannot be tempered by the existence of a duty owed to the client’s potential adversary in those legal proceedings.

…

[59] My conclusion is consistent with the reasoning in Al-Kandari v J R Brown & Co [1988] EWCA Civ 13; [1988] QB 665 (a case cited with approval by Dawson J in Hill v Van Erp at 187) that a solicitor acting for a party who is engaged in hostile litigation owes a duty to the client and to the Court, but the solicitor does not normally owe any duty to the client’s opponent. I do not see that any relevant distinction is to be drawn between the position of an actual opponent, litigation having commenced, and that of a potential opponent, litigation being only contemplated.”

[65] As Bond J recognised, the alleged duty in that case would have been inconsistent with the desirability of coherence with the law governing the duty of undivided loyalty a legal practitioner owes his or her client. He further observed that it had been long recognised that a consideration which spoke adversely to the recognition of a duty, was that the proposed duty of care may supplant or subvert the existence of other principles of law which had already struck a particular balance between rights and obligations, duties and freedoms.

[66] In support of this last proposition, Bond J cited Sullivan v Moody (2001) 207 CLR 562 at [42] per Gleeson CJ, Gaudron, McHugh and Callinan JJ. To this I would add the similar observations made in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 as per the obiter dictum statements of Gleeson CJ at [24]-[28], Gaudron J at [57], Gummow and Kirby JJ at [231] and Hayne J at [298].

[67] As referred to by Bond J, the general proposition had been expressed in the English Court of Appeal decision of Al-Kandari[19] by Donaldson MR (with whom Dillon LJ agreed) at p. 672 as follows:

“A solicitor acting for a party who is engaged in ‘hostile’ litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client’s opponent: Business Computers International Ltd v Registrar of Companies [1987] 3 WLR 1134. This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v Elman [1940] AC 282…”

[68] Further, this general proposition is also supported by appellate authority in Queensland. In The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307, the lead judgment was given by McPherson JA, with whom both Jerrard JA and Chesterman J (as his Honour then was) expressly agreed. One of the issues in that decision was whether one party to litigation owed a tortious duty of care to the opposing party in respect of the commencement and conduct of the litigation. At paragraphs [17] to [19], McPherson JA identified and approved of a line of Australian, English and Canadian authorities that stood for the general proposition that no such duty was owed either by the litigant, or his or her legal representative, to the opposing party. Those authorities included Al-Kandari, but with particular reference to the judgment of Bingham LJ at page 675. Bingham LJ had articulated a statement of the general propositions which was broadly similar to that of the Master of Rolls set out above. Bingham LJ stated:

“In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client’s adversary. The theory underlying such litigation is that justice is best done if each party, separately and independently advised, attempts within the limits of the law and propriety and good practice to achieve the best result for himself that he reasonably can without regard to the interests of the other party. The duty of the solicitor, within the same limits, is to assist his client in that endeavour, although the wise solicitor may often advise that the best result will involve an element of compromise or give and take or horse trading. Ordinarily, however, in contested civil litigation a solicitor’s proper concern is to do what is best for his client without regard to the interests of his opponent.”[20]

[69] Consistent with the reasons of Bond J, Bingham LJ contemplated that there nevertheless could be circumstances in contested civil litigation where a solicitor, for a limited purpose, had stepped aside from his role as solicitor and agent of one party and assumed a different role, either independent of both parties or as agent of both. That limited exception has no relevance to the pleaded case against the second defendant in this proceeding.

[70] In The Beach Club Port Douglas[21]the alleged tortious duty of care was inconsistent with the duty owed by the legal practitioner to his or her client. That part of the pleading was struck out. Whilst leave to re-plead was granted on appeal, it was clear that this was not for the purpose of an attempt to re-plead a tortious duty of care. His Honour McPherson JA concluded his reasons with the following comment:

“It may be added, however, that one would not expect the claim in negligence to be resurrected in future in such a pleading…”.[22]

[71] Importantly for the case against the first defendant, McPherson JA approved of the principle that no such duty would arise in adverse litigation not only in respect of the legal representative, but also the litigant itself. After having discussed the Canadian authority of Geo. Cluthe Manufacturing Co. Ltd v ZTW Properties Inc (1995) 23 O.R (3d) 370, his Honour stated as follows:

“…But the decision in the Canadian case is additional authority for the proposition that, apart from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff. I consider we should apply these English, Australian and Canadian decisions in this case.”[23]

[72] Other examples of where the general proposition has been applied to strike out tortious duty of care causes of action alleged against an opponent’s legal representatives are Chapel of Angels Pty Ltd & Ors v Hennessey Building Pty Ltd & Ors [2022] QSC 112 at [45][24] and Islam v Mitry Lawyers Pty Ltd t/as Mitry Lawyers Pty Ltd [2023] NSWSC 700 at [80]. Both were pure economic loss cases. However, Lee is an example of a strike out application which involved a claim for damages for both pure economic loss, and physical and mental harm.

[73] The nature of litigation as adversarial necessarily sharpens the focus on a need for a litigant by itself, and through its legal representatives, to seek to act in the litigant’s best interest. This may include acting in a robust way which causes offence or distress to an opposing party. Ultimately, if that conduct is sought to be called into question then it is not by the imposition of a common law duty of care. Safeguards against inappropriate conduct fall to be dealt with in other spheres of operation such as regulation by the Legal Services Commission, the Court’s control of its own proceedings, the supervision of officers of the Court, or other causes of action as may be available in the circumstances of a particular case.[25]

[74] Accordingly, as a matter of law, the tortious duty of care pleaded against the second defendant cannot be supported.

[75] The entirety of the pleaded case to the extent that it concerns the second defendant ought to be struck out.

[76] It is not appropriate to grant leave to re-plead a tortious duty of care where the cause of action is not available at law.

Advocates’ Immunity

[77] The second defendant submits that even if an alleged tortious duty could be found, the plaintiff’s claim would be barred by operation of advocates’ immunity.

[78] One classic articulation of that immunity was in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 by Gleeson CJ, Gummow, Hayne and Heydon JJ at [1] as follows:[26]

“…at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court…”

[79] In reviewing the immunity in D’Orta-Ekenaike, the High Court focussed chiefly on the consideration of finality. Gleeson CJ, Gummow, Hayne and Heydon JJ held that the central justification of the immunity was the principle “that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances…”[27]. Their Honours later observed that underpinning the system of justice was “the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need.”[28]

[80] In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, the majority, being French CJ, Kiefel, Bell, Gageler and Keane JJ, made the following observation:[29]

“…The advocate’s immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. Because this incidental operation of the immunity comes at the expense of equality before the law, the inroad of the immunity upon this important aspect of the rule of law is not to be expanded simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby.”

[81] While it may be accepted the precise scope of immunity is not yet settled,[30] a number of features of the immunity seem to be uncontroversial, namely:

(a) the principle applies both to barristers and solicitors;

(b) the principle also applies to both acts and omissions;[31]

(c) the principle can be applied both to the conduct of a case in Court and also to work out of Court which leads to a decision affecting the conduct of the case in Court or work intimately connected with work in a Court;[32] and

(d) the relevant conduct must “move litigation towards a determination by a Court.”[33]

[82] Whilst the principle as articulated in D’Orta-Ekenaike was put in terms of an advocate not being sued by his or her client for negligence in the conduct of the case, authority supports that the immunity applies equally to an advocate being sued by an opposing party.

[83] In Love v Robbins (1990) 2 WAR 510, the Western Australian Court of Appeal was considering the immunity of prosecutors. An accused who had been convicted in a criminal trial later brought a writ against two Crown prosecutors in respect of both an initial trial, and also a second trial in which the conviction actually occurred. The causes of action raised against the prosecutors were for damages for breach of duty and conspiracy.

[84] Chief Justice Malcolm (with whom Seaman and Wallwork JJ agreed) made the following statement in respect of the immunity principle as articulated in Giannarelli v Wraith (1988) 165 CLR 543:[34]

“If the immunity principle extends to counsel actually briefed or retained by a client to protect him from suit by the client, there would be even greater justification for the application of the immunity principle to counsel briefed or retained by an opposing party or, as in the present case, counsel employed by the Crown. Mason CJ said in Giannarelli (at 555) that the justification for the immunity rested on public policy grounds.”

[85] After referring to what Mason CJ stated as the conceptual basis for the immunity, Malcolm CJ continued:[35]

“The foundation of that principle is the perception that great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation. As McTiernan J noted in Cabassi with reference to the rule in its application to witness: ‘…it is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.’

The considerations dictate the need to protect freedom of speech in court, likewise dictate the need to protect the advocate’s freedom of judgment with respect to what is said and done in court. Just as the principle protects the judge and the jury in relation to what they decide, so it protects the advocate. The advocate is as essential a participant in our system of justice as are the judge, jury and the witness and his freedom of judgment must be protected: see the discussion by Brett MR in Munster. The need for that protection arises from “the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty”, to repeat the words of words of Fry LJ in Munster.” (footnotes omitted)

[86] As recognised by Malcolm CJ, the immunity extends to any form of action. This would include a personal injuries claim arising from a breach of a tortious duty of care.

[87] Here, the impugned conduct of the second defendant was in respect of his appearance in Court where he made both written and oral submissions opposing the plaintiff’s two applications. In the first hearing his submission included that the mediation was pre-emptory as disclosure had not yet taken place, and in the second hearing his submissions included that a separate question proposed by the State of Queensland should be determined prior to any mediation.

[88] In both circumstances, the second defendant’s conduct was that of an advocate in Court which sought to move the litigation towards a determination by the Court.

[89] Accordingly, if I were incorrect on my conclusion that a duty of care is not owed by counsel to his client’s opponent in adversarial litigation, then I would still strike out the pleading against the second defendant on the basis that the cause of action is unmaintainable due to advocates’ immunity. Again, for the same reasons dealt with under the “Duty of Care” heading, it would be inappropriate to make an order which would facilitate a re-pleading where the immunity is in operation.

…..

[132] I will commence first with a consideration of the MLP. The unilateral adopting of the MLP by the State of Queensland and other State agencies, such as the first defendant, does not create some form of freestanding legal duty enforceable by an opposing party in litigation. In Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 an application was brought to strike out a pleading of the State of Queensland which was inconsistent with what was said to be the contents of certain joint expert reports. Part of the submissions advanced on the strike out were that the content of the joint expert reports had effectively resolved the central issue in the proceeding. The submissions proceeded on the contention that the State, by adopting a position in the proceeding contrary to the conclusions expressed in the joint reports, was thereby in breach of various provisions in the MLP which bound the State.[38]

[133] This submission was rejected by O’Bryan J at par [74], where his Honour stated:

“Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory applications brought by the applicant cannot be resolved on the basis of those Principles.”

His Honour also went on to note that this proposition, at the end of argument, was not truly disputed by the applicant. The statement by O’Bryan J was clearly correct.

[134] I also note that on the application for leave to appeal from his Honour’s decision, the Full Federal Court in Malone Obh of Western Kangaulu People v State of Queensland [2021] 287 FCR 240, made the following observation at paragraph [217], “[t]he Judge was also plainly correct in holding that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. The applicants did not contend to the contrary.”

[135] In the present case it was not pleaded that there was a contract between each of the third defendant and first defendant on the one part, and the plaintiff on the other part, to abide by the MLP. Having had the benefit of the actual communications of 18 January 2023 in the affidavit material before me, it is evident that no such pleading could be made. The legal representative of the Crown merely communicated the fact that the first defendant, as an agency of the State of Queensland, must comply with the MLP in dealing with the plaintiff’s claim. This simply re-stated the effect of the introductory lines to each of paragraphs 1 and 2 of the MLP. The communication went on to state that a declaration was not required. There was objectively no offer or acceptance present between the plaintiff and the first defendant. There was, of course, no communication at all between the plaintiff and the third defendant about the MLP prior to the conference.

[136] Turning to the second point, which concerns the Bar Rules. There is no duty owed by a barrister to his or her client’s opponent arising from breaches of the Bar Rules. The Bar Rules are promulgated pursuant to s 220 of the Legal Profession Act 2007 (Qld) (‘LPA’). They form part of a regime established under the LPA for the professional regulation of barristers and the conduct of their work. That regime does not give rise to any duties owed to an opposing party in litigation which would support any action for damages.

[137] Turning then to the third point which concerns the PIPA. The pleading makes reference to non-compliance with s 38(6) of the PIPA. There is no statutory duty created by s 38(6) of the PIPA which provides a private right to compensation against an opponent or the opponent’s legal representative in the event of a breach.

[138] The PIPA does not expressly state that a breach of s 38(6) provides a private right of action for compensation. Generally speaking, in the absence of such an express statement in a piece of legislation, it will rarely be inferred that Parliament intended such a private right to exist in consequence of a breach of a statutory obligation or duty.[39]

[139] There is nothing in the substance or structure of the statutory scheme contained in Chapter 2 of the PIPA which supports such an inference in respect of a breach of s 38(6) of the PIPA. The section forms part of a scheme to promote settlement. It is untenable to suggest that Parliament intended to create a proliferation of private statutory causes of action for compensation which would then be able to be litigated in parallel to the primary causes of action which the scheme sought to promote settlement in the first place.                                 

[emphasis  added]

A link to the case can be found here.

[13] See the plaintiff’s written submissions at paragraphs [39] to [50] and Transcript 1-33, line 48 to 1-34, line 4; 1-120, line 13 to 14 and 1-121, line 44 to 48.

[14] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549.

[15] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [6], [34] and [35].

[16] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [43]– [45].

[17] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [51].

[18] Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445, 425 at [311] per Kenny J.

[19] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665.

[20] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665 at 675 per Bingham LJ.

[21] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307.

[22] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [24].

[23] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19].

[24] This decision was upheld on appeal in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd [2022] QCA 232.

[25] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19]– [20] and Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [62].

[26] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [1].

[27] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[28] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [84] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[29] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [52] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[30] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [11] per Dalton J (as her Honour then was).

[31] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [13] per Dalton J (as her Honour then was); Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303 at [159] per White J.

[32] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [41] and [53].

[33] Ibid at [38].

[34] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.

[35] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.

…

[38] Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 at [54].

[39] Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1181] to [1182] per O’Loughlin J.

…