Mr Paul Fritsch established negligence and causation against his solicitors, but was defeated by advocates’ immunity. When Mr Fritsch was sued by his solicitors for unpaid fees, he counterclaimed against the solicitors, his barristers and accountant in negligence and breach of contract. He alleged that when he agreed to a Family Court settlement that was said to be unduly generous to his wife, he did not have the mental capacity to give instructions. On the day of the settlement he was very ill and suicidal and soon after the settlement he was admitted to a psychiatric institution.  

The settlement took place after the hearing commenced. The legal representatives had been concerned for some days about Mr Fritsch’s capacity and liaised with his psychiatrist.  Counsel sought a ruling from the Victorian Bar Ethics Committee on the issue. However, they did not inform the trial judge of their concerns.

Bell J, in his 14 March 2012 decision in Goddard Elliott (a firm) v Fritsch [2012] VSC 87, agreed that Mr Fritsch did not have the mental capacity to give instructions and that his legal representatives had been negligent, which had caused significant loss.  

The judge apportioned liability 75% to the solicitors and 25% jointly to the two barristers (though the barristers and accountant settled with Mr Fritsch prior to the hearing).

However, the negligence fell within advocates’ immunity and the solicitors had a complete defence. With great reluctance, Bell J found in favour of the solicitors and Mr Fritsch was ordered to pay the unpaid fees and the solicitors’ costs of the trial:

“I have decided that advocates’ immunity supplies a complete defence to Mr Fritsch’s claim for damages against (the solicitors). Its... negligence... falls within the immunity because it occurred in the course of work leading to decisions about, or intimately connected with, the conduct of a case in court, which is a very wide test. By reason of the immunity, (the firm) is not liable to pay damages for the loss which its negligence caused Mr Fritsch, a conclusion to which I am driven by the binding authorities and find deeply troubling.”

Read the full judgment here.

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Posted by Kerry Hogan-Ross on Friday 16 Mar 2012

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