Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the door of the court to accept an offer. The claimant was not advised as to potential difficulties in having essential evidence admitted, and the evidence was not admitted, and a much lower sum was received. The court of appeal had found the advice itself not to be negligent, but that she should have given the client more detailed advice.
Held: The question whether her advice was negligent has to be judged in the light of the choices that were available in the light of her assessment. She had to balance the possibility of her client’s desire to achieve a full settlement against the loss of a chance to sue the solicitors for negligence. ‘it is the substance of the advice, not the precise wording used to convey it, that needs to be examined in order to judge whether it was negligent. The significance of Miss Perry’s failure to tell Mr Moy that the prospects of getting the evidence in were 50/50 has to be measured against what she did tell him, which was that she was hopeful that the judge would admit the evidence’. The court of appeal had been wrong to disturb the finding that the barrister had not been negligent: ‘it was not incumbent upon the appellant to spell out all her reasoning, so she was not in breach of her duty of care to the claimant in the advice which she gave. ‘ As to the right of the solictors to appeal: ‘section 1(5) of the 1978 Act should be so construed as not to bar an appeal in a case such as the present. This could be done in either or both of two ways. One could construe the word ‘judgment’ as referring to a final judgment after any appeals have been determined, rather than the judgment at first instance of the trial judge; or one could confine the operation of the subsection to actions for contribution subsequently brought, so excluding further proceedings by way of appeal in the original action. Whichever construction one adopts, I consider that the solicitors’ right of appeal to the Court of Appeal was not barred by the operation of section 1(5)’
Judges:
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Citations:
[2005] 1 All ER 903, [2005] PNLR 24, [2005] UKHL 7, Times 04-Feb-2005, [2005] 1 WLR 581
Links:
Statutes:
Civil Liability (Contribution) Act 1978
Jurisdiction:
Scotland
Citing:
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Barton v William Low and Co Ltd 1968
The court was asked the question as to whether it was competent for a party who had been brought into the action under the third party procedure to challenge the relevancy of averments which the pursuer, who made no case against the third party, was . .
Cited – Macleay v Macdonald IHCS 1928
When an interlocutor is reclaimed against, the effect from the time the reclaiming motion is marked is to sist, or stay, all execution on the decree which has been pronounced in the Outer House until the reclaiming motion has been determined: rule . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Karpenko v Paroian, Courey, Cohen and Houston 1981
(Ontario High Court) Andersen J said: ‘What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Hanson v Wearmouth Coal Co Ltd CA 1939
The trial judge had found in favour of the first defendant, a coal company, and held the second defendant, a gas company, wholly to blame for the loss incurred by the plaintiff as the result of an explosion caused by a leakage of gas. The second . .
Appeal from – Moy v Pettman Smith (A Firm) CA 19-Jun-2002
The claimant had pursued an action for damages for professional negligence against a hospital treating his broken tibia. He now sought damages after the defendant firm of solicitors acting for him in the first action had, he said, failed to obtain . .
See Also – Moy v Pettman Smith (A Firm) and Another CA 25-Mar-2003
. .
Cited by:
Cited – Thomson and Another v O’Connor and Another CA 7-Nov-2005
The tenants appealed a refusal to adjourn the landlord’s claim for payment of his service charge until a decision on their counterclaim as to his refusal to allow alterations necessary to install central heating. The parties had been unable to find . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Pritchard Joyce and Hinds (A Firm) v Batcup and Another CA 5-May-2009
Standard expected of negligence claim on counsel
The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had . .
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015
The claimant alleged professional negligence by the defendant solicitors who had acted for him in the purchase of a property. The deposit paid by the claimant had been lost after being paid to the seller’s solicitors as agents for the vendor. The . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Legal Professions
Updated: 14 September 2022; Ref: scu.222205