''Chamberlains v Lai'' 006NZSC 70, is an important case which lifted "barristerial immunity" in New Zealand as a defence to negligence claims against barristers for their actions in both civil and criminal proceedings, which had been a feature of New Zealand since the early 1970s.

Background

Chamberlains (a law firm) represented the Lais' horticulture company, S and L Lai Limited, in defending a claim for breach of fiduciary duty heard in the

High Court of New Zealand The High Court of New Zealand ( mi, Te Kōti Matua o Aotearoa) is the superior court of New Zealand. It has general jurisdiction and responsibility, under the Senior Courts Act 2016, as well as the High Court Rules 2016, for the administration ...

by Blanchard J, during November 1995. Near the end of the trial, the judge asked Mr and Mrs Lai whether they would personally guarantee the judgement if their company lost in court, a stipulation they agreed to after obtaining the advice of their lawyer, an employee of Chamberlains. Unfortunately for the Lais, their company eventually lost in court, and judgement was entered against not only the company, but also against both of the Lais personally as well. Subsequently, the Lais sued Chamberlains for negligence in contract and in tort, as well breach of fiduciary duty, for which Chamberlains filed a defence of "barristerial immunity". Salmon and Laurenson JJ heard the new case as a full bench of the High Court, ultimately deciding that they were bound to uphold the validity of the defence due to precedent set by the

New Zealand Court of Appeal The Court of Appeal of New Zealand is the principal intermediate appellate court of New Zealand. It is also the final appellate court for a number of matters. In practice, most appeals are resolved at this intermediate appellate level, rather t ...

. The Lais appealed to the New Zealand Court of Appeal and won by a 4-1 majority, Anderson P dissenting. Chamberlains subsequently filed an appeal with the

Supreme Court of New Zealand The Supreme Court of New Zealand ( mi, Te Kōti Mana Nui, lit=Court of Great Mana) is the highest court and the court of last resort of New Zealand. It formally came into being on 1 January 2004 and sat for the first time on 1 July 2004. It re ...

Judgment

The

struck out the defence of "barristerial immunity" in ''Chamberlains v Lai'' 006NZSC 70, meaning the Lai's were able to sue their lawyers for damages on an action in negligence. This was based on the earlier decision by the UK

House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...

in ''Arthur J S Hall & Co (a firm) v Simons''

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3 All ER 673. This means that any barrister or solicitor before a Court in New Zealand may be liable in

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

for their actions. Despite being a civil case, the court held the ruling would apply to barristers both in civil and criminal proceedings, to avoid what was described in the principal judgement as "incongruity

hat A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety, or as a fashion accessory. Hats which incorporate mecha ...

would be exacerbated by the difficulties of classification of proceedings as civil or criminal”. A key issue in this case was whether the striking out of immunity would interfere with finality in the court system. Overall, it was held that existing court powers relating to abuse of process would be sufficient to rein in any discrepancies. It was also held that the lawyer's duty to the court would remain paramount, and the striking out of immunity would not place an undue emphasis on the interests of the client. Elias CJ, in the majority opinion, described the duty to the court as the "rules by which the litigation must be conducted."''Chamberlain v Lai'' 006NZSC 70 para. 54, Supreme Court (New Zealand) The majority opinion was delivered by Elias CJ on behalf of

Keith Keith may refer to: People and fictional characters * Keith (given name), includes a list of people and fictional characters * Keith (surname) * Keith (singer), American singer James Keefer (born 1949) * Baron Keith, a line of Scottish barons ...

and

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JJ. Concurrences were delivered by Tipping J and

Thomas J Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 19 ...

References

{{Reflist Supreme Court of New Zealand cases 2006 in case law 2006 in New Zealand law