A lawyer who advises a client to sue a trio of judges is asking for trouble. And trouble is what Canadian advocate Kimberly Townley-Smith now faces.

In 2005, Townley-Smith represented Wyrd Sisters, a folk group, in a $40 million lawsuit against Warner Brothers. The Winnipeg group alleged that the media giant had appropriated their name in Harry Potter and the Goblet of Fire. The claim failed as the court decided that the folk group was unlikely to be confused with the rock group in the film, which was altered slightly to Weird Sisters.

Dissatisfied, Townley-Smith pursued three judges involved in the case and sued them for conspiracy, alleging that they had been involved in a sinister “dysfunction” against her client. She demanded $21 million in damages for conspiracy, fraud, misrepresentation, abuse of process and abuse of public office. Townley-Smith accused the judges of skulduggery, lying and fixing the case.

Those are accusations you would not want to make against judges without a watertight case. Townley-Smith’s case was a sieve.

The Ontario Supreme Court recently dismissed the claim, citing the standard Canadian rule giving judges immunity from being sued for their court decisions. Throwing out the Wyrd Sisters' case, the court ruled that the case was a “scurrilous attack on the administration of justice by a member of the Bar”. The judge said that while any advocate is allowed to put the case of their client “fearlessly, resolutely and honourably”, Townley-Smith had strayed into “forbidden ground” by improperly advancing her own opinions and having an improper purpose. She also tried to act as both a witness and counsel in the same case. Now she must appear before the court to explain why she should not be held personally liable for the costs.

Other jurisdictions have the same rule protecting judges from being sued over decisions taken in the course of their work. In a Nigerian case in 1970, Justice Atake took exception to the conduct of a barrister appearing before him. Believing the barrister had accused him of fumbling the law, the judge became defensive. He told the court how clever he was, saying he had finished his legal course in only 18 months and reassured the court that “many people considered me a brilliant student”. When the barrister tried to defend himself the judge boomed: “Sit down, stupid”. The judge then convicted the barrister for contempt and had him detained. The conviction was eventually set aside but the barrister’s subsequent civil lawsuit against the judge failed on the judicial immunity principle.

There are some exceptional circumstances where it is possible to sue a judge. In the UK, the law has occasionally allowed claimants some limited victories against those on the bench, although the compensation has been modest. In 1986, Lapido Solanke stopped paying a maintenance order to his ex-wife and was imprisoned for 42 days by magistrates. It turned out that the imprisonment was unlawful because the maintenance order had never been registered with the magistrates’ court. After his release from jail, Mr Solanke sued the magistrates for £1.4 million. Applying legislation in place at the time, however, the Court of Appeal limited his compensation to the rather lower sum of one penny.

Professor Gary Slapper is Director of the Centre for Law at The Open University

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure