Damages – Contributory negligence – Apportionment – Claimant solicitor settling negligence claim by client – Claimant seeking contribution from defendant counsel – Whether defendants breaching duty of care – Whether defendants responsible for loss – Application granted
The claimant firm of solicitors settled a negligence claim that had been brought against them by clients (FF). The settlement was for £110,000 together with £160,000 costs. The defendants were the junior and leading counsel who FF had instructed in respect of the same matter but whom FF had not pursued. The claimant contended that the defendants had also been negligent and were therefore responsible for the same loss. Accordingly, it sought a contribution from them, pursuant to section 1 of the Civil Liability (Contribution) Act 1978.
The negligence alleged by FF against the claimant (and by the claimant against the defendants) was a failure to advise FF of the time limit that applied to a potential claim against their previous solicitor (W), which would also have been a claim for negligence in failing to advise them of the time limit applicable to a claim against yet another firm of solicitors (LL).
The lost claim at the heart of the dispute would have been against LL for alleged negligent advice given to FF that, it was contended, had led to FF losing the opportunity of a favourable settlement in a complicated dispute arising out of a property development project in Spain. The advice in question had been given in late October 1985 and the settlement opportunity had been lost by the end of that month. Accordingly, any claim for that loss should prima facie have been brought by the end of October 1991 and any action against W for the failure to advise FF of that deadline should have been brought by the end of October 1997, which was the deadline to which the claimant and the defendants had allegedly failed to draw attention.
The questions for the court were, inter alia, whether: (i) either of the defendants had breached the duty of care that they owed to FF and, if so; (ii) FF had suffered any loss as a result of such breaches. That involved an assessment of their prospects of success in the various claims.
Held: The application was granted.
The court’s task was not to seek to decide definitively whether LL had been liable in negligence to FF for the amount of the lost settlement, but whether that claim had a real and substantial prospect of success and thus constituted a thing of real value. Even if, in some cases, it was open to the court, in effect, to try the lost action, this was not such a case, since too little of the evidence that would be crucial for a fair determination was available. Had the negligence of a defendant led to evidence being unavailable that might otherwise have assisted the victim of that negligence, the victim should have the benefit of any consequent doubt: Dixon v Clement Jones [2004] EWCA Civ 1005; [2005] PNLR 6 applied.
In the present case, the defendants were in breach of duty. The lost settlement claim against LL was of substantial value and, although it appeared that a claim against W was rather weak, its prospects of success were more than negligible.
Therefore, by section 2 of the 1978 Act, the court was obliged to apportion the relevant contributions of the parties as were just and equitable, having regard to the extent of their respective responsibility for the damage. On the facts, there was no difference between the extent of the relative causative contributions to the negligence of the claimant and the defendants. The crucial question was the extent of their relative responsibility, and the defendants had to bear the greater share of the blame for failing to advise FF of the potential claim against W and the effect of the time bar. The relationship between the claimant and the defendants was of the conventional kind, in which the claimant, as solicitor, looked to the defendants, as counsel, for authoritative guidance on the major strategic questions concerning the conduct of the litigation and associated issues. Accordingly, the fair apportionment of contribution would be 75:25 between the defendants and the claimant respectively.
Sue Carr QC and Anneliese Day (instructed by Barlow Lyde & Gilbert) appeared for the claimant; Roger Stewart QC and Jamie Smith (instructed by Withers LLP) appeared for the defendants.
Eileen O’Grady, barrister