This item has been updated since initial publication.
By Syamsuriatina Ishak and Joe Chin
The second plenary session for IMLC 2014 was a stimulating presentation by The Honourable Justice Susan Kiefel AC, Judge of the High Court of Australia. The session, moderated by former President of the Malaysian Bar, Ragunath Kesavan, saw a packed house of the delegates eager to understand the English and Australian perspective on the liability of legal practitioners. Justice Kiefel, a respected luminary with many years of experience in the Australian Judiciary, elucidated the development of law on professional liability in England.
Justice Kiefel began with an examination of professional liability law in England, in particular the ancient immunity available to English barristers, founded on principles of public policy and considerations of the interest of the administration of justice under the cab–rank rule. This rule ensured that all persons, regardless of financial standing, was able to have access to legal representation.
Although this well–established position was upheld under the unanimous decision of the House of Lords in the case of Rondel v Worsley  1 AC 191, the immunity was also argued to “not be immutable”. In this case, Lord Reid opined that the barrister “… as an officer of the Court concerned in the administration of justice … has an overriding duty to the Court … which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests.”
Justice Kiefel also expounded on the positions held in Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC, Arthur J S Hall & Co v Simons, and Saif Ali v Sydney Mitchell & Co  HL. Following this, in the case of Ross v Caunters  3 AER 580, which applied the general test of negligence in Hedley Bryne & Co Ltd v Heller & Partners Ltd, it was noted that a claimant was entitled to rely on the judgment and skills of a professional who professed to possess that specific skill, and undertook to apply that skill to help the claimant. The claimant should also be entitled to claim for a negligent performance of that duty owed.
In a subsequent case of Arthur J S Hall & Co v Simons, it was argued that the 200–year long immunity enjoyed by barristers in England was long overdue to be re–examined, especially in view of the widespread dissatisfaction of perception amongst the public. The Courts have since been leaning more towards a different approach with the dawn of the European Convention on Human Rights and, particularly, the Human Rights Act 1998, which emphasises the rights of individuals and the fact that negligence can be committed by all persons, these in addition to the question of barristers’ immunity that led to a divide between the question of public policy’s sake versus the public confidence on the legal system, a position that is still under debate today.
Justice Kiefer explained that, in any event, it was apparent that at least for criminal proceedings, the English barristers’ immunity was not under threat, not due to the practitioner, but rather to protect the administration of justice itself.
The speaker explained that the position in Australia varied slightly, since it did not have a similar governing human rights legislation. In Australia, a barrister’s immunity was addressed in a different light, taking into consideration the manifest problems of relitigation or lack of finality of the decision of the Court, should attacking a barrister’s performance in litigation be allowed. In fact, the Australian Courts clearly propagated that the nature of the judicial process required that the community at large would benefit from the avoidance of relitigation. This reflected the basic legal tenets of res judicata and issue estoppel, besides the argument that, like the contributions of other participants in legal proceedings (such as witnesses, members of the jury and judges) who all enjoyed immunity, there was no reason why this immunity should not extend to barristers who also carried out an essential duty within the justice system.
Her address was followed by a question–and–answer session. In her answer to questions by the Malaysian Bar President, Christopher Leong, and another delegate, Michael from Kuala Lumpur, concerning barristers’ immunity in England, Justice Kiefer explained her conclusion that their immunity was not maintained because the English Courts saw no danger in removing a carte blanche for professional liability, in light of the cab–rank rule and similarly, higher public policy considerations.
The Right Honourable Lord Robert Walker, retired Justice of the Supreme Court of the United Kingdom, next posed a question regarding the subject of cost orders made against barristers and solicitors, to which Justice Kiefer explained that such sanction by the Australian Court was awarded under rare or exceptional circumstances.