LAWYER’S NEGLIGENCE IN PI AND SITTING BEHIND COUNSEL: DUNHILL CONSIDERED
the Queen’s Bench Division of the High Court dismissed a professional negligence claim against solicitors and counsel regarding settlement of a personal injury claim at trial, the trial being on liability only.
The judge did not consider that counsel had acted negligently in advising that the claim be settled., and nor in relation to the amount of settlement.
Counsel had correctly analysed the evidence and had taken into account the fact that the main witness for the claimant had not appeared and that there was a risk of the claim failing completely.
There was also a risk of a finding of contributory negligence.
As the matter was at trial counsel had to deal with the evidence that he had and was not able to say that he needed more information about quantum before advising, even though it was not a quantum hearing.
As there was no negligence on counsel’s part the judge said that it followed in this case that there was no negligence on the part of the solicitors either. I do not see the logic of that. If counsel did the best job possible with inadequate instructions, then surely it is possible for the court to clear counsel of negligence but still hold the solicitors liable.
Had the judge found that counsel was negligent then it did not necessarily follow that the solicitors were also negligent.
However, in a potentially important finding, the court held that the solicitors would indeed have been negligent for sending a trainee solicitor to court who was not in a position to exercise independent Judgment regarding counsel’s advice, had counsel been found to be negligent:-
“If, therefore, contrary to my view, Mr Crossley [Counsel] was negligent, then I consider that the solicitors were also negligent in sending Mr Marsh [the Trainee Solicitor] to court on 7 January 2003.”
The case shows the importance of always having as up to date a view as possible concerning quantum.
This was a liability only trial and the issue of quantum had not been fully explored and counsel was not in possession of all of the relevant material.
On the day of the liability trial there was an unexpected problem in that one of the claimant’s witnesses failed to attend court.
Counsel took the view that this meant that there was a real chance that the claimant would lose on liability and obviously that would be an end to the matter.
Counsel therefore considered that settlement should be discussed and the matter was settled for £12,500.00.
Some may feel that the High Court has been rather generous to counsel and solicitors in this matter.
There was no consideration of the issue as to why the settlement could not have been on the basis of a proportion, 50/50, 75/25 or whatever with quantum to be decided at a later date.
Furthermore the trial judge did not criticise counsel for failing to make an application to adjourn. That seems a very curious decision. Counsel could have applied for an adjournment and if the adjournment was granted then there would have been no problem.
Had the judge refused the adjournment, then the matter could proceed and it is hard to see that the claimant would have been in a worse position by applying for an adjournment. The defence was well aware that the witness had not turned up.
It is possible that the court was influenced by the fact that the Supreme Court had given permission for the matter to be reopened as it found that the claimant lacked capacity and on 5 March 2015 the High Court approved an apportionment of liability under which the claimant would receive 55% of the value of her claim against Mr Burgin. This arises from the proceedings in Dunhill v Burgin (nos. 1 & 2)  UKSC 18.
This decision is on very unusual facts and practitioners should not take too much comfort from it.
The other interesting point concerns the status of the solicitor’s representative at court “sitting behind counsel”.
Over recent years the tendency has been to assume that attendance is unnecessary. It will often be difficult to recover from the other side the costs of having the solicitor’s representative at court and in fixed costs cases there is no provision for any payment in respect of such a representative.
The net effect of this decision is that a solicitor risks being successfully sued for negligence for failing to have at court someone of sufficient seniority, even though in most cases they will not receive any remuneration for having that person at court.
Obviously a solicitor and own client charge can be made, and this reinforces the need to make such a charge to clients in personal injury cases, quite apart from any conditional fee success fee.
It will also reinforce the point that generally firms of solicitors will need to conduct their own advocacy if they are to run profitable businesses.
All of this will be brought sharply into focus when the Fixed Costs Regime spreads to all cases up to £250,000.00 damages.