Litigation and Alternative Dispute Resolution

Contact: Mark Brookes, Partner and Marijke Bassani, Graduate Lawyer; Carter Newell (Queensland, Australia)

The recent New South Wales Court of Appeal decision in Bird v Ford [2014] NSWCA 242 involves allegations of negligence against a firm of solicitors, where the solicitors successfully defended the claim on the basis they did not breach their duty of care in the advice they provided to their client when playing ‘devil’s advocate’ regarding the client’s prospects of success in underlying litigation.

The judgment is primarily relevant to insurers of solicitors and barristers, and contains interesting commentary on the extent of a solicitor’s duty to advise and warn clients in cases with doubtful prospects, and also involves consideration of procedural fairness in disciplinary matters and (in the first instance decision) the ongoing application of advocates’ immunity from suit.

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