Professional negligence – Barristers – Contributory negligence – Respondent solicitor settling negligence claim brought by client – Respondent seeking contribution from appellant counsel – Whether appellants breaching duty of care – Whether negligent in failing to appreciate nature of client’s claim – Appeal allowed
The respondent firm of solicitors settled a professional negligence claim that had been brought against it by clients (Mr and Mrs F). It subsequently sought a contribution from the appellants, the junior and leading counsel who F had instructed in the same matter, on the ground that they had also been negligent and were therefore responsible for the same loss.
The alleged negligence was a failure to advise Mr and Mrs F of the time limit that applied to a potential claim in negligence against their previous solicitor, W; the appellants had not considered the possibility of a claim against W before the expiry of that time limit in 1987. The negligence alleged against W was a failure to advise of the time limit for a claim against yet another firm of solicitors (LL). It was argued that it had given negligent advice whereby Mr and Mrs F had been denied the opportunity of a favourable settlement offered by the opposing parties in a complex dispute relating to a property development project in Spain.
The judge allowed the respondent’s application. He found that the lost settlement claim against LL had been of substantial value and that the prospects of a successful claim against W for failing to advise of the time limit in respect of it, although weak, were more than negligible: see [2008] EWHC 20 (QB); [2008] 03 EG 179 (CS). The lost settlement claim referred to by the judge related to specific advice given by LL to Mr and Mrs F in October 1985. The judge reached his conclusion on that matter notwithstanding his finding that a letter written by LL in October 1985, summarising its advice, was unimpeachable.
The appellants appealed. They contended that they had not given negligent advice regarding a claim against W, and that W had not been negligent in failing to realise that there might be a claim against LL based upon the October 1985 advice. Consideration was given as to whether the information provided by Mr and Mrs F, as set out in a note prepared by W in support of their legal aid application, would have put W, and subsequently the appellants, on notice as to the availability of the lost settlement claim.
Held: The appeal was allowed.
The judge’s conclusion that W was arguably negligent depended upon a finding that the information in the legal aid note should have led it to pursue further enquiries and that, had it done so, the point that Mr and Mrs F made regarding the October 1985 advice would have been elicited in time for appropriate advice on limitation to be given. The legal aid note was prima facie a catalogue of Mr and Mrs F’s complaints against LL. In circumstances where there appeared to be considerable force in their complaints regarding LL’s handling of the litigation generally, a reasonably competent solicitor would not have found it necessary to pursue yet further enquiries to ascertain whether there might be some other, as yet undisclosed, complaint concerning LL’s earlier advice. If, the advice contained in LL’s October 1995 letter appeared to be unimpeachable, it would not be necessary to make further enquiries unless there was some indication that the letter did not fully represent LL’s earlier advice. The letter was prima facie and on Mr and Mrs F’s own account in the legal aid note the best evidence of LL’s earlier oral advice. There was nothing in either the note or the letter to suggest that LL might have given other, erroneous oral advice in October 1985. Moreover, the respondent had not alleged that even if the advice in LL’s letter of October 1985 was unimpeachable and the problems it identified with the draft settlement agreement were real, there was nevertheless an argument that LL had been negligent on the basis of its oral advice.
The later involvement of the appellants, after the respondent had become Mr and Mrs F’s solicitor, did not give rise to any claim in negligence against them. Neither the note nor communications subsequent to it, none of which made any explicit allegation of negligence in 1985, were sufficient to put reasonably competent barrister on notice that Mr and Mrs F were advancing the lost settlement claim regarding negligent advice in 1985 as specifically defined by the judge, as opposed to the more general claim regarding LL’s failure, once the settlement offer had been withdrawn, to negotiate a better deal. The question was not whether the appellants’ understanding of Mr and Mrs F’s complaints against LL were mistaken, but whether they had fallen into an error so blatant as to amount to negligence: Saif Ali v Sydney Mitchell & Co [1980] AC 198 applied. If W or the appellants had made mistakes, these mistakes could not reasonably be described as blatant errors of the kind that no reasonably competent solicitor or barrister would have made. The need to carry out a detailed reconstruction, searching through documents of events going back many years, before any finding could be made even as to what the error might have been, pointed to the conclusion that if any error existed it was not so blatant as to amount to negligent professional conduct.
John Wardell QC and Tiffany Scott (instructed by Withers LLP) appeared for the appellants; Sue Carr QC and Annaliese Day (instructed by Barlow Lyde & Gilbert) appeared for the respondent.
Sally Dobson, barrister