Lawyers’ Personal Liability

Harley v McDonald (PC TLR 15 May)

The New Zealand Court of Appeal had upheld an award of costs personally against a firm of solicitors and a barrister, barristers in New Zealand, like solicitors, being officers of the court. In allowing their appeal and setting aside the award the Privy Council said that the appellants could not be criticised for anything worse than pursuing on their client’s clear instructions an apparently hopeless case. While an officer of the court owed it a duty to achieve and maintain appropriate levels of competence and care, it could not be assumed that he was in breach of that duty simply by virtue of having apparently pursued a hopeless case. Questions as to whether a practitioner was liable to his own client for negligence or should be subject to disciplinary action for breach of the rules of professional conduct were not relevant to the court’s summary jurisdiction to make a costs order.