Kerry Underwood

NO NEGLIGENCE IN PRE-TRIAL SETTLEMENT

with 2 comments


In Dunhill v W Brook & Co (a firm) and another [2018] EWCA Civ 505

the Court of Appeal held that the defendant counsel and solicitors had not been negligent in under-settling a personal injury claim on the morning of a liability trial in 2003, itself in relation to a road traffic accident which occurred on 25 June 1999.

Following the reopening of the settlement by the Supreme Court on the basis that the claimant lacked capacity, the claimant later achieved a settlement at 55% of the value of her claim and received damages far greater than the original settlement sum of £12,500.

The decision to settle, and for what amount, had been taken by counsel at the door of the court when he was faced with a change of circumstances, namely the claimant’s son, who was a key witness, not turning up to give evidence.

The partner responsible for the case had sent a trainee to attend the trial.

The claimant claimed that the defendants had been negligent by under-settling the claim and that she had suffered loss as a result.

In dismissing the claim, the court agreed with the judge at first instance that, on the basis of the material available to counsel at the time, he had not been negligent in settling the claim.

It followed that the solicitors also had not been negligent.

Although the case follows established principles, it illustrates the high bar that claimants in similar cases will need to overcome in order for their negligence claim to succeed.

They must show that the advice was blatantly wrong: that is, that no competent and experienced practitioner would have given the advice.

It also confirms that, in assessing whether there has been a breach of duty, the court will consider the circumstances or context in which the relevant advice was given.

In the words of the court, the task of the judge at first instance had been to “exercise an evaluative judgement in relation to the thought processes and professional assessment of lawyers engaged in the extremely difficult task” of dealing with a change in the risks of success or failure in a case due to be tried immediately.

Solicitors should also give careful consideration to whether, in the particular circumstances of a case, it is appropriate to send a trainee solicitor to the trial, or whether a more experienced solicitor should attend in case there is a need to provide advice.

The Court of Appeal also said that it considered there to be merit in the proposition that it fulfils the solicitor’s duty of care to permit a trainee to accompany properly instructed counsel to a split trial provided that he or she has instructions that a solicitor, preferably the solicitor having the conduct of the case, is available should the lead arise.

Advertisements

Written by kerryunderwood

April 13, 2018 at 8:24 am

Posted in Uncategorized

2 Responses

Subscribe to comments with RSS.

  1. I hadn’t appreciated the timescale …I’ll bet he has had a well earned hangover recently.

    Sent from my iPad

    Nicola Twine

    April 13, 2018 at 9:10 am


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

%d bloggers like this: