Advocates Immunity
Advocates’ immunity is a legal doctrine that protects legal professionals from negligence arising from the conduct of a case in court, or for work out of court which leads to a decision affecting the conduct of a case in court.
Two decisions of the High Court from the mid 2010’s – Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 and Kendirjian v Lepore [2017] HCA 13 – narrowed the scope of the immunity, confirming that a solicitor’s conduct will rarely be protected by advocates immunity where it leads to:
- the rejection of an offer of settlement; or,
- the settlement of proceedings.
While the scope of this exception to the immunity might at first glance seem somewhat narrow, a recent decision of the Supreme Court of Victoria suggests that it may in fact be broader than first thought.
Professional Negligence Claims against Litigation Solicitors
The law surrounding professional negligence claims, particularly those against litigation solicitors, are not straightforward. Clients that believe their solicitor has been negligent can benefit from seeking specialist legal advice early to ensure they have a proper understanding of the law and the prospects of succeeding in a claim against their former solicitors.
Case Review: Keogh & Co v Pless [2025] VSC 341
In contrast to Attwells (which concerned the giving of negligent advice to settle) and Kendirjian (which concerned the giving of negligent advice not to settle), Keogh & Co v Pless [2025] VSC 341 concerned an alleged negligent omission to advise on settlement options.
Pless originated in litigation between a father and son in the Supreme Court of Victoria, in which the son had sought a freezing order against his father. The respondent (father) engaged the appellant firm to act for him.
The matter came before the court twice. The day prior to the first court hearing, the father met with a solicitor employed by the appellant firm, who arranged for him to sign a proposed undertaking, by which he undertook not to deal with a particular property until further order of the court. The undertaking was not provided to the son, but rather was retained on the firm’s file.
The court ultimately made the freezing order against the father at the second court hearing.
The father subsequently commenced negligence proceedings against the appellant firm, alleging a breach of the retainer. The father sought repayment of the costs he had incurred with the firm.
The father was successful at first instance. The Victorian Civil and Administrative Tribunal found that the firm failed to advise the father, following the first court hearing:
- about the high likelihood of the freezing order sought by the son being granted based on remarks made by the Judge at the first directions hearing; and,
- that pursuing a consent order on the basis of the undertaking that he had executed and given to his solicitors might save costs.
The firm appealed to the Supreme Court of Victoria. It was unsuccessful.
The Supreme Court of Victoria found that the decisions in Attwells and Kendirjian could not be distinguished and that it is “obvious and clear” that a negligent omission to advise on settlement options that causes litigation to continue to judicial determination will not engage the immunity.
