Barrister – Solicitor – Standard of care – Claimant seeking indemnity or contribution to the damages paid out to compromise negligence claim – Whether defendant’s advice falling below standard of professional skill required of barrister of ordinary skill and competence – Whether claimant being bound to follow defendant’s advice – Claim dismissed
The claimant firm of solicitors had been instructed to act for joint plaintiffs on a claim against an architect (the underlying action). The defendant was an experienced barrister whom the claimant had instructed to represent the joint plaintiffs at the trial of the underlying action.
Prior to the trial, an issue arose as to whether it should be adjourned because the first plaintiff (C) was not fit to conduct the action owing to mental illness. The defendant had advised the claimant that that C was likely to lack capacity within the meaning of the Mental Health Act 1993 and the Civil Procedure Rules 1998.
In September 2005, the claimant made an inter partes application to the court for an adjournment of the trial of the underlying action. C did not support the application and did not attend the hearing. The judge refused to grant an adjournment, but made several of “unless orders” requiring C to attend a medical examination. C failed to comply with those orders and the claim in the underlying action was struck out together with the defence to a counterclaim by the architect. The claimant subsequently compromised a potential negligence claim by agreeing to pay damages to the joint plaintiffs of more than £50,000.
The claimant brought an action against the defendant for an indemnity or contribution to the damages paid, together with the sum of £20,570 for costs reasonably incurred as a direct consequence of the defendant’s alleged negligence or breach of duty. The claimant contended that, in making the application, it had acted on the defendant’s negligent advice, which it had been bound to follow. It also contended that no barrister in the defendant’s position could have considered that there was more than the remotest risk that C was incapable by reason of mental disorder from managing his property and affairs, including the instant litigation. The defendant denied those claims.
Held: The claim was dismissed.
The defendant’s conduct in advising the claimant ahd not fallen below the standard of professional skill required of a barrister of ordinary skill and competence to handle this type and weight of work.
The standard to be applied was that a barrister had to conduct himself in his professional work with the competence, care and skill of a barrister of ordinary skill who was competent to handle that type of and weight of work, and a breach of that duty occurred when the error was one that no reasonably competent member of the profession possessing those skills should have made. His conduct had to be judged against that of a barrister of the defendant’s seniority of more than 30 years: Williams v Thompson Leatherdale [2008] EWHC 2574 (QB) considered.
In order to understand the respective roles of solicitor and barrister, it was necessary to consider each case individually. In general, a solicitor was entitled to rely upon the advice of a properly instructed counsel. It was a normal and proper use of the Bar for a solicitor, who lacked experience in a particular field, to rely upon counsel’s advice, particularly upon questions of law, based upon the facts presented to counsel. However, the solicitor also had to exercise its independent judgment. If it thought that counsel’s advice was incorrect, it was under a duty to reject it. A barrister might be instructed to draft pleadings or prepare schedules on the facts presented to him according to the solicitor’s instructions, provided that he complied with his rules of professional conduct. Frequently, because of the solicitor’s closer relationship with the client, the barrister had to rely to a greater or lesser extent upon the latter for the factual basis on which he gave his advice.
In the instant case, the concern expressed went beyond C making imprudent decisions. It raised the question of whether he had the capacity to deal with the litigation and, if not, whether it was by reason of mental illness. In making the factual assessment, the defendant was bound to rely to a large extent upon the factual evidence of others who had closer and more direct dealings with C. The defendant had advised at short notice on what course should be taken because of the impending trial, which carried an element of urgency in circumstances that he had not been encountered previously. His decision to place the issue before the court was not negligent on the basis of his own knowledge and, more especially, the factual input from the claimant.
Furthermore, the claimant owed an independent duty to assist in the administration of justice and not to mislead the court. It was obliged to put its genuine concerns before the court.
In any event, the defendant’s advice and the bringing of the application in September 2005 was not the cause of, or a contributory factor to any loss that subsequently occurred. Both C’s failure to attend the hearing and failure to attend for the medical examination broke the chain of causation.
Andrew Nicol (instructed by Barlow Lyde & Gilbert LLP) appeared for the claimant; Guy Mansfield QC (instructed by Fishburns) appeared for the defendant.
Eileen O’Grady, barrister