Barrister — Accusation of negligence — Freehold enfranchisement — Issue as to validity of claimant’s notice to enfranchise — Whether defendant should have advised claimant to serve protective notice — Effect of deliberately misleading instructions from claimant — Claim dismissed
The claimant purchased the remainder of a long lease of a property and, in 1994, served notice upon his landlords, under the Leasehold Reform Act 1967, claiming the freehold. The landlords admitted the claim, but a dispute arose as to the issue of valuation, which, in turn, gave rise to the question whether the claimant’s tenancy qualified for protection under Part 1 of the Landlord and Tenant Act 1954. The defendant barrister was accordingly instructed on behalf of the claimant.
The landlords maintained that the 1994 notice had been invalid on the ground that the claimant had misrepresented that the property had been his sole or main residence. They issued an application in West London County Court seeking a declaration, inter alia, that their admission of his claim was not binding upon them.
The defendant advised on the defence to that claim and appeared for the claimant at the hearing in early 2000. Judgment was given for the landlords on the ground that there had been conscious or reckless misrepresentation or concealment of a material fact. An order was made under section 20(5) and (6) of the 1967 Act placing a five-year prohibition on the service of further notices.
The claimant made no complaint against the defendant barrister with regard to the way in which he had advised on preparations for the trial or the manner in which he had conducted it. However, he submitted that; (i) in 1997 or 1998, the defendant should have advised him to consider protecting his position by serving a further notice on the landlords, without prejudice to the validity of the 1994 notice; and (ii) in any event, the defendant’s advice to the claimant as to the strength of his case was unduly optimistic.
Held: The claim was dismissed.
The claimant’s right to enfranchise depended upon his being able to prove, inter alia, that the property had been his sole or main residence in the appropriate period as set out in the 1967 Act. Service of the notice fixed the date at which the property was valued for the purposes of ascertaining the premium to be paid on enfranchisement; and its validity depended upon the extent to which it complied with the statutory requirements as set out in para 6 of Schedule 3 to the 1967 Act.
Any duty on the part of the defendant to advise the claimant to serve a protective notice would have arisen only if there were a risk that the 1994 notice would be deemed invalid, and, in turn, that risk arose if the court found the claimant’s evidence to be unreliable. However, even if the claimant had been unreliable in his instructions to counsel, that did not affect the defendant’s duty, if it existed, to advise the claimant to serve a protective notice.
On the evidence, the defendant had considered advising the claimant to serve a protective notice, but had chosen not to do so on the ground, inter alia, that, given the information supplied by the claimant, it would not have been possible to formulate any such notice effectively. The question for the court was whether that thought process was wrong in such a manner as to be outside the range of what could be expected from “reasonably competent counsel of [the defendant’s] seniority and purported experience”; see Moy v Pettman Smith [2005] UKHL 7; [2005] 1 WLR 581, at para 62. On the evidence, it was very unlikely that the defendant would have been able to draft a notice of sufficient clarity to meet the requirements of the situation at that time, and, accordingly, had not failed to exhibit the necessary standard of skill and care.
The defendant had been entitled, on the basis of the instructions given by the claimant, to conclude that the claimant’s case was a strong one. Although the judge at first instance had found, in unequivocal terms, that the claimant’s evidence had been unsatisfactory, the defendant had not been possessed of that evidence in its entirety when he gave his advice. Even if the defendant had come to doubt the veracity of the claimant’s evidence as the case unfolded, he had been under no duty to revise his earlier opinion as to the strength of the claimant’s case. The defendant had been entitled to conclude that the claimant would appear as a credible and sympathetic witness in court.
Michael Driscoll QC (instructed by Nicholas Morris) appeared for the claimant; David Halpern (instructed by Addleshaw Goddard, of Manchester) appeared for the defendant.
Vivienne Lane, barrister
*Editor’s note: The earlier version of this summary contained an error in the holdings, and it should be made clear that the court found that Mr Gallagher had not been negligent.
