Court of Appeal confirms professional negligence test for solicitors and barristers

Dunhill v W Brook and Co (a firm) and Mr J Crossley [15.03.18]

Date published

29/05/2018

Services

Sectors

Locations

In Dunhill, the Court of Appeal upheld a decision dismissing a professional negligence claim against solicitors and counsel regarding settlement of a personal injury claim just before trial.

The case considers the pressures of ‘doors of court’ settlement, the importance of attendance notes and the standards of care owed by trainee solicitors. In this case, neither solicitors nor counsel were found to have acted negligently in a judgment which will be particularly relevant to defendant solicitors and their professional indemnity insurers.

Background

The claimant pursued a RTA claim against a motorcyclist having sustained head and psychological injuries in an accident. The claim was initially valued at £40,000 and settled on a full and final basis for £12,500 on advice from counsel on the day of trial after the claimant’s main witness failed to attend. The solicitor’s firm had sent a trainee solicitor to court.

Subsequently, the claimant instructed new solicitors to consider the issue of mental capacity. The Supreme Court found that the claimant had lacked capacity to enter into the agreement due to the severity of her head injury and the personal injury claim was reopened with a value of approximately £800,000.

The claimant then brought a claim against her former solicitors and counsel for negligently settling her personal injury claim at the doors of court.

The High Court found that in circumstances where the claimant’s main witness had not attended court, counsel had not been negligent in reaching the view that the claim should be settled and nor had the solicitors. The fact that the settlement had been reached at the court door was important in judging the conduct of counsel and solicitors.

The Court of Appeal dismissed the claimant’s appeal and upheld the Hon. Mrs. Justice Elisabeth Laing’s findings.

Duty of care owed by trainee solicitors

The trainee solicitor was only six months into his training contract at the time of the court hearing. He discussed the case with the claimant and counsel and prepared attendance notes. Laing J indicated that if counsel had been found negligent then so too would the firm in sending a trainee who inevitably lacked the experience to judge whether there was anything glaringly wrong with counsel’s advice. She also found that the duty of care owed by the trainee was no less merely by virtue of being a trainee solicitor.

The Court of Appeal agreed with the proposition that it fulfils the solicitors' duty of care to permit a trainee to accompany properly instructed counsel to a trial provided that a solicitor (preferably having the conduct of the case) is available if the need arises. The Court observed that the barrister would have been better advised to speak directly with the solicitor with conduct, before the settlement was concluded.

Importance of attendance notes

When attendance notes were produced for the court to consider, only some were found to be accurate. Some were found to have had limitations principally due to (i) counsel negotiating directly with each other in the absence of their instructing solicitors which meant that the trainee had no insight into counsel’s reasoning and (ii) the notes being too short compared to the length of time of attendance at court and the settlement discussions.

This case is a useful reminder for solicitors to take accurate attendance notes as they may be relied upon several years after they were prepared. Further, solicitors should ideally be present at any court door negotiations between barristers or at least request a written note from their barrister confirming what was discussed.

Comment

In a climate where external influences can cause claimants to question their agreed settlement, the Court of Appeal decision is positive for the legal profession and their insurers. Clients often agree a settlement, only to feel they have lost out afterwards, and then seek to blame their solicitors.

Where there is not an obvious error or omission and it is necessary to evaluate how a solicitor or barrister has exercised their judgment, assessing breach of duty will still be a difficult and highly fact-sensitive exercise. However, the existence of detailed file notes will certainly help solicitors in avoiding exposure to claims of negligence.

This decision also confirms that it remains appropriate to send a trainee solicitor to court to accompany a barrister, provided the solicitor with conduct is available to instruct the trainee if need arises, and the barrister should exercise his/her own judgement to speak directly with the solicitor if required.

Related item: Court of Appeal rules on extent of solicitors’ duty to challenge their clients’ instructions

Read other items in the Professions and Financial Lines Brief - June 2018