Duties to third parties – How to avoid an inadvertent duty to an opposing party
BY CHARU STEVENSON AND GINA TASOULIS – FEB 02, 2024 8:35 AM AEDT
Snapshot
- A recent case confirmed the general principle that solicitors do not owe a third party a duty of care. A solicitor’s duty is owed solely to their own client and the Court.
- There are exceptions to this general principle.
- Even if a tortious duty is found, a third party’s claim could be barred by operation of advocates’ immunity.
The case of Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194 examined the question of whether a legal representative appearing in Court for one party owes a duty of care to the opposing party.
Mr Collins, a self-represented plaintiff, brought proceedings against a hospital that was part of the Queensland health service (‘the Hospital’) and two barristers, Mr McMillan and Mr Green.
The judgment concerned a strike out application by the defendants.
Claim against Mr McMillan
Mr McMillan appeared for the State of Queensland in prior proceedings that the plaintiff brought against the State of Queensland. In those proceedings, the plaintiff had sought an urgent date for mediation. The plaintiff alleged that Mr McMillan, in opposing the application for an urgent mediation, caused him a loss of life expectancy and mental health issues because the plaintiff was unable to engage in chemotherapy for a period due to this conduct.
Claim against Mr Green
Mr Green represented the Hospital at the compulsory conference that was undertaken prior to the proceedings against the Hospital being commenced in accordance with the Queensland Personal Injuries Proceedings Act 2002 (Qld) (PIPA) requirements. The plaintiff alleges that the way the compulsory conference was conducted caused him psychiatric injury.
The claim against Mr Green included that he failed to comply with the Model Litigant Principles.
- the State would enforce any costs order obtained against the plaintiff; and
- any trial may not be heard until March 2024 (in circumstances where the plaintiff had a terminal illness).
Judgment
Sullivan J struck out the allegations against both Mr McMillan and Mr Green in their entirety and refused leave to replead.
Duty of Care
Sullivan J stated “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” ([60]).
- where a solicitor’s conduct demonstrates an assumption of responsibility with known reliance by the plaintiff creating an implied retainer;
- negligent misstatement by the solicitor including the requirements of assumption of responsibility and reasonable reliance;
- where there is a coincidence of interest between the client and the third party such as beneficiaries of a will or the client’s trustee in bankruptcy.
In relation to any alleged duty owed to an opponent in litigation, Sullivan J noted that:
“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 offcers of the Court, or other causes of action as may be available in the circumstances of a particular case” ([73]).
Sullivan J considered that these principles ought to apply to the PIPA pre-litigation procedure given it is an adversarial process and a necessary step in commencing proceedings.
Sullivan J also determined that the Model Litigant Policy does not create a duty enforceable by an opposing party in litigation [132] and referred to prior appellate authority on this issue Malone Obh of Western Kangoulu People v State of Queensland [2021] 287 FCR 240.
Advocates Immunity
Mr McMillan submitted that even if an alleged tortious duty was owed, the plaintiff ’s claim would be barred by operation of advocates immunity.
Sullivan J agreed that the immunity applied to the allegations against Mr McMillan opposing an application by the plaintiff for an urgent mediation as it was based on submissions made by Mr McMillan to the Court opposing the application and so his conduct was “that of an advocate in Court which sought to move the litigation towards a determination by the Court.”
Some practical considerations
Solicitors should be careful not to inadvertently fall within the exceptions to the general principle that no duty of care will be owed by a legal representative of one party to the opposing party in contentious and hostile litigation. Below are some practical guidelines:
- Be clear and take care in your retainer with your client (record in writing who your client is and what is the work you are instructed to do).
- Address your correspondence and invoices to your client and not a third party.
- If another party requires advice, suggest in writing that they obtain independent advice from another solicitor.
- Take care not to provide information to third parties which could be construed as legal advice.
- Be careful when acting for family members where there could be conflicting interests.
- Be particularly careful when acting as an agent (this is seen frequently in property transactions such as PEXA transfers on behalf of both parties).
This article originally appeared on lsj.com.au