UK:
Another “Failure To Advise” Case: Solicitor’s Negligence Recast?
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1CL’s expertise in professional negligence cases is
well-known, and in this recent case, a useful exploration of the
solicitor’s duty to advise clients as to the merit of their
litigation casts further light on how the courts will approach the
issue. John Bryant represented the Claimant in Mervyn Lambert
Plant Limited v. Knights Solicitors [2022] EWHC 165
(QB) – a case that contains important reminders of the duty of
solicitors to convey the risks of litigation to clients, but also
that the fact that an action is unsuccessful does not mean that the
lawyers involved were negligent.
It is trite that solicitors owe their clients dual
duties both in contract and in tort. Often, attempts are made to
extend or embellish these duties so as to give rise to a
specifically pleaded breach, or it is pleaded that one duty (the
tortious) is more extensive. but as the Judgment made clear, these
attempts lack merit: “The express contractual obligations
were to update the Claimants on the progress of their case and
whether the likely outcome justified the likely costs and risk, and
to advise on any circumstances that could affect the outcome of the
case. It is difficult to see how those obligations, when applied to
ongoing or potential litigation, differ from the tortious duties
owed by solicitors.”
The Judgment also explored the tension between the views
of Counsel and solicitor, especially when there is any disagreement
between the two. He said: “. that “[two] lawyers may
hold differing opinions with neither [being] unreasonable.”
That is true for different views held by different solicitors. It
is also true of different views held by counsel and a solicitor.
The fact that a barrister instructed in a case may have more
cautious views does not mean it is necessarily negligent for a
solicitor to be more optimistic.”
.
On 28th January Dan Squires Q.C. sitting as a Deputy
High Court Judge, handed down his judgment in Mervyn Lambert
Plant Limited v. Knights Solicitors [2022] EWHC 165
(QB).
The outcome of the case turned on the reliability of the each of
the main protagonists, respectively a businessman and the solicitor
specialising in planning law he had instructed in judicial review
proceedings aimed at preventing development of a large grain store
in Norfolk. Those proceedings never got beyond the permission stage
and, having expended hundreds of thousands of pounds in costs, the
disappointed client sued the solicitor’s firm, making a number
of allegations of negligence. The main allegation – and in the
result the one on which the case turned – was that the solicitor
had failed to pass on to the client the views of specialist counsel
set out in e-mails to the firm. Counsel, it was alleged, almost
from the outset had been pessimistic about the prospects of
success, in contrast to the solicitor who was consistently
optimistic. In the most important early e-mail counsel had said
that he thought the JR application was “weak” and at the
time could not “find legal grounds.in the papers.” The
client’s evidence was that, had he been told what counsel
thought, he would immediately have withdrawn instructions to pursue
any application for judicial review.
The solicitor accepted that at no time had he forwarded any of
counsel’s e-mails. As for the crucial e-mail, he said that in a
conversation with his client two days after receiving it he
conveyed its purport and so discharged his duty both his express
contractual duty and his tortious duty of care. The judge accepted
that evidence, albeit it was not in his witness statement and he
confessed to having remembered the conversation only after the
start of the trial.
Apart from an insight into how judges approach conflicts of
evidence the judgment is useful in setting out the relevant law, in
particular that relating to a solicitor’s duty to relay to his
or her client the views of counsel. The judgment also deals with
the duty of a solicitor in cases where his or her opinion of the
prospects of success differ from those of counsel. Paragraphs 7 to
16 are worth reading.
The judge accepted that a solicitor could be in breach of duty
for failing to pass on the views of counsel on the prospects of
success of a claim, even if his or her own opinion was more
optimistic.
“There is, however, no particular or distinct legal
test for assessing whether there has been a breach of duty in that
regard, and the issue is to be approached as in any other claim of
solicitor’s negligence. The question is whether, in failing to
pass on counsel’s views, or in the manner those views were
conveyed, the solicitor acted in a way no reasonably competent
solicitor would have done. It was not suggested by the Claimants
that there is some rule, derived either in tort or from the
contract in the present case, pursuant to which any failure to pass
on counsel’s advice is per se a breach of duty, or that that
such advice must be passed on in some particular form. The question
remains whether no reasonably competent solicitor would have acted
as the Defendant did in the way in which advice was passed on to a
client.”
Citing Harwood v. Taylor Vinters (a firm)
[2003] EWHC 471 (Ch) the judge pointed out that there was no rule
of law that solicitors must provide counsel’s views in writing
rather than to convey them orally to a client. He said, “There
may well be advantages in passing on counsel’s advice in
writing, but no rule that is always required.”
The judge mentioned one of the obvious advantages at the end of
his judgment:
“.with the benefit of hindsight, things could
have been done differently and that advice and other information
that was conveyed, on occasions, orally could have been provided in
writing. That may have avoided this litigation”
How true.
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