High Court further clarifies solicitors’ duties to their clients – a welcome decision
Naqvi v Harris Cartier Ltd & Ors [15.11.19]
The High Court has provided further clarity in professional negligence claims against solicitors by confirming that it is not the role of the instructed legal professional to ‘seek out’ claims that had not been raised by the instructing party when full and detailed instructions had been given concerning the claims which were advanced, and which did not on their face support an alternative claim.
Mr Naqvi worked as a private banker at Lloyds Banking Group (Lloyds) between 2010 and 2012 where he was responsible for dealing with high net worth individuals. He was summarily dismissed in April 2012 after an internal investigations. Amongst the reasons for his dismissed was the belief, by Lloyds, that Mr Naqvi had accepted gifts and hospitality and undertook external work for David Haye, a former heavyweight boxing champion, and his company, Haymaker Limited, in breach of Lloyds’ policies.
The dismissal was the subject of a claim before the employment tribunal where Mr Naqvi claimed unfair dismissal, discrimination on grounds of race and/or religion (the latter being withdrawn during the proceedings) and victimisation. In a damning judgment, thee employment tribunal upheld Mr Naqvi’s unfair dismissal claim, finding that Lloyds’ investigation and dismissal process had been seriously flawed. However, it dismissed his claims of race discrimination and victimisation.
Negligence claim and court decision
Mr Naqvi instructed Mr Brian Levy (solicitor) and Mr Jeffrey Bacon (barrister) to defend him during the internal disciplinary proceedings and, later, to progress his claim in the employment tribunal. During the underlying proceedings, Mr Levy left Harris Cartier for Richard Slade. Both firms of solicitors, along with Mr Levy and Mr Bacon, were named as defendants in proceedings brought by Mr Naqvi alleging negligent conduct of those proceedings. Mr Naqvi alleged that his advisors failed to adequately formulate and advance his claim for race discrimination and failed to properly quantify the discrimination claim by reference to an alleged his loss of career.
Mr Naqvi’s contentions turned on two events which were the subject of passing reference during his instructions at the time, but which were significantly expanded upon and assumed great significance in his subsequent claims against his advisors. In essence, Mr Naqvi argued that had they acted reasonably, his legal advisors would have ‘pulled on those threads’ and revealed a very potent claim for racial and/or religious discrimination, based on the conduct of one of Lloyds’ HR managers, in essence that they failed to properly follow up and take more detailed instructions – which would have resulted in them drawing out further evidence from him. His claim was brought on the loss of a chance basis and such claims are, generally, difficult to dispose of on summary grounds.
Mr Levy and Richard Slade applied for summary judgment on the basis that Mr Naqvi had no real prospect of success in his claim that the lawyers failed to adequately formulate and advance his claim for race discrimination against Lloyds. Mr Bacon supported that application, alongside his own application based on the doctrine of collateral attack (which failed).
In the hearing of those application, Mr Naqvi’s representatives submitted that it was for his lawyers, not him, to formulate the race discrimination claims; that this was a difficult area of law and it was for the employment law specialists to "join the dots". In essence, the potential relevance of the references to the two incidents should have been identified, further instructions taken and his claim against Lloyds re-cast accordingly.
Mr Naqvi’s claims were the subject of summary judgment on the grounds that they had no real prospect of success. The deputy judge held that Mr Naqvi “would understandably look to his lawyers to formulate his complaints as legal causes of action, obtaining further instructions where necessary to enable this; but it was not their role to think up complaints he was not making or seek out discrimination claims that had not been raised. Still less, could it be negligent to fail to do so.” It was held that his early instructions did not include allegations of race discrimination by the HR manager because he was non-white and that there was no basis for saying that his advisors should have probed him further to see if there were any additional or alternative possible discrimination claims.
When considering whether there should be a shift in the burden of proof to Lloyds to show that the suspension and dismissal was not related to Mr Naqvi being non-white, a proposition which Mr Naqvi’s representatives was supported by the incidents said to concern the (white) HR manager, the deputy judge said the “submission rests on a good deal of hindsight” before dismissing it. When considering the criticism against Mr Levy and Mr Bacon that there was too much focus on a comparable Asian colleague, rather than a hypothetical white comparator, this was again deemed to rely “considerably on hindsight”.
Accordingly, it was held that Mr Naqvi’s complaints were not clear enough at the time of instruction for Mr Levy or Mr Bacon to support a claim for direct race discrimination based on the conduct of the impugned HR manager.
This decision, which will be a welcome one for legal professionals and their insurers, reinforces that the courts will (or at least should) not apply hindsight when deciding whether a solicitor or barrister discharged their duties to their client.
It is also instructive when considering the scope of a legal representative’s duties when faced with detailed, clear and focussed instructions in the context of litigation. Whilst it is within the scope of a solicitor’s duties to formulate claims which arise from and are supported by the instructions which are given, it will generally not fall within the scope of those duties to seek out and advance alternative claims which are not supported by those instructions. Events taking place at later point which could be argued to support alternative claims should, for the purposes of a subsequent negligence claim, have no impact on the reasonable advice that was initially given.
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