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Court of Appeal goes too far on lawyer liability

Richard Worth National Party Justice Spokesman

10 March 2005

Court of Appeal goes too far on lawyer liability

The decision by the Court of Appeal to substantially change well-settled law relating to the liability of barristers for the work they do in court goes too far and crosses well understood constitutional lines says, Richard Worth, National’s Justice sspokesman.

“Western democracies follow clear rules relating to the separation of powers. The judges interpret the law; Parliament makes it.

“In the present case, the Court of Appeal by majority has decided that the traditional immunity that barristers have had for work they do in the conduct of litigation should be scrapped.

“There are sound policy reasons for the immunity, not the least of which is that any accused person who is convicted or any litigant who loses will often argue that it was the lawyer who lost the case. To determine whether that is so, the judges will now have to consider, on a step-by-step basis, all of the tactical decisions which are made in the course of a trial.

“I believe the President of the Court of Appeal, who made it clear that such a law change was for Parliament and not for the courts better understands the separation of powers doctrine.

“It is unfortunate that the other members of the court sought to be judicial activists,” says Dr Worth.


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