Negligence – Solicitor and barrister – Proceedings relating to access to adjoining land – Defendant solicitor and barrister omitting to advise claimants to plead that certain land forming part of highway – Whether omission negligent – Whether solicitor entitled to rely upon advice of barrister
The first two claimants, Mr and Mrs S, owned land that lay to the north of the A252 road and was separated from it by a verge, registered as common land, in the ownership of the local parish council. Part of the claimants’ land was used for the purpose of a nursery garden business by the third claimant, G Ltd, a company principally owned by Mr and Mrs S. A further parcel of land north of the A252 was owned by L, who had purchased it from Mr and Mrs S, and had subsequently opened up an access way across the verge.
The defendants, DJF and B, were, respectively, a firm of solicitors and counsel acting for the claimants in proceedings brought by the parish council for injunctions to restrain the use of the verge as an access way to the nursery land and L’s land. B had been instructed to replace another counsel, M, who had advised that the claimants would probably lose the action relating to the nursery land. The advice of both DJF and B was similarly pessimistic in relation to both actions. The nursery land action was eventually settled on terms favourable to the parish council, with the claimants agreeing to pay £50,000 of the council’s costs.
The claimants subsequently instructed a different firm of solicitors, which raised a point not advanced by the defendants. It suggested that the verge might be part of the highway by presumption of law. The claimants and L added this point to their respective defences in the action relating to L’s land, and the parish council later agreed to settle on terms that they would grant L a right of access without payment. Mr and Mrs S later obtained a Tomlin order requiring the council to pay their costs.
The claimants brought proceedings against the defendants for professional negligence. They contended that the defendants had breached their duty of care by failing to grasp that the verge was, at least arguably, part of the highway, or to plead that issue in the actions. Against DJF, the claimants contended that the firm should have instructed B to plead the highway point. The defendants applied for summary judgment in their favour.
Held: The claim was allowed.
The highway point appeared to be a very weak one, since the registration of the verge as common land would ordinarily be conclusive evidence that it was in fact common land, and not highway. The prospects of success for that point seemed small, although it was not possible to say, in the absence of a trial on the issue, that it would have been bound to fail. Accordingly, while the claimants did not have to show that the highway point was a good one in order to succeed against the defendants, the defendants’ failure to raise the point had not been negligent in the circumstances of the case. B, as a barrister, had been entitled to exercise independent judgment, and his conduct in not identifying and pursuing the highway point fell within the range of decisions that a reasonably careful and skilful barrister might have taken in the circumstances: McFarlane v Wilkinson [1997] PNLR 578 applied.
Any duty upon DJF to make an independent evaluation of the highway point, and to instruct B to pursue it, could not exceed the equivalent duty that lay upon B. Accordingly, DJF had not breached its duty in the instant case. Moreover, given that the claimants’ position had been a difficult and complex one, it had been a proper response for DJF to instruct appropriately qualified and experienced counsel, and, in the circumstances of the case, DJF had been entitled to rely upon the advice given by both M and B. The performance of its duty did not require it to question the adequacy and competence of advice given by two successive counsel. It followed that the action against the defendants had no real prospect of success, and summary judgment would be entered for the defendants.
The first claimant, Jeremy Shirley, appeared in person for the claimants; Michael O’Sullivan (instructed by Barlow Lyde & Gilbert) appeared for the first defendant; Andrew Sutcliffe QC (instructed by Weightmans, of Liverpool) appeared for the second defendant.
Sally Dobson, barrister
