A barrister’s advice to a claimant to settle her case at the doors of the court after a key witness failed to appear was not negligent, the High Court has ruled in a claim brought nearly six years after the consent order was made.
It has been described as good news for the profession given “a climate of post-settlement remorse” among claimants.
However, Mrs Justice Laing said that if she was wrong and counsel was negligent, then so were the claimant’s solicitors for having sent a trainee solicitor to court who was “out of his depth”.
Dunhill v W Brook And Co & Anor  EWHC 165 (QB) dated back to a road accident in June 1999 when a motorcyclist hit the claimant as she was crossing the road, having emerged between parked cars. She suffered a severe closed head injury along with soft tissue injury to both legs.
She issued a claim in May 2002 and a split trial was ordered, but on the day of liability trial, one of her witnesses to the accident did not arrive. Counsel, Mr Crossley, advised that the court was unlikely to agree to an adjournment, and that instead she should seek a settlement. Eventually he struck a deal for £12,500 plus costs.
In July 2006, Mrs Dunhill sought the advice of new solicitors and issued her claim for professional negligence in December 2008.
Laing J said the law was clear: “A solicitor is not liable in negligence if he acts reasonably on the advice of appropriate counsel who has been properly instructed. But a solicitor must exercise his own independent judgment, and if he considers that counsel’s advice is ‘obviously or glaringly wrong, it is his duty to reject it’.”
The judge said she was not persuaded that Mr Crossley had assessed the evidence incorrectly, “still less negligently”.
She continued: “How the case would have been decided by the judge if it had fought is not a question which has a scientifically right, or wrong answer. The first imponderable is how the witnesses’ evidence would have come across. The second is that different judges could, without erring in law, have reached different views on liability and quantum on that evidence. Similarly, different barristers might come to a different view about how the evidence might be received, and analysed by a judge, without being negligent.”
Laing J also dismissed the complaint about the value of the settlement: “Mr Crossley did not have the luxury of saying he could not settle the case because he did not have enough information about quantum. On his non-negligent assessment of the situation, he faced fighting and losing, or agreeing a settlement. It is unrealistic to suggest that he should, or could, have obtained an adjournment to get more evidence on quantum in that situation.”
When it came to the solicitors, Rotherham-based W Brook & Co, the judge said that her “analysis of the relationship between the liabilities of Mr Crossley and the solicitors means that if Mr Crossley was not negligent, neither were they”.
However, in case either finding was wrong, she briefly considered whether the solicitors were negligent. She said: “Mr Marsh was a junior trainee. He was only six months into his training contract. It was clear from his cross-examination that he now realises that he was out of his depth at court, through no fault of his own.
“The documents show that the solicitors charged for the time of a qualified solicitor at court that day, and that is who they should have sent. If, contrary to my view, Mr Crossley was guilty of an error ‘that was so blatant as to amount to negligence’… then Mr Marsh was, through no fault of his own, not knowledgeable or experienced enough to detect it.
“If, therefore, contrary to my view, Mr Crossley was negligent, then I consider that the solicitors were also negligent in sending Mr Marsh to court.”
A briefing on the case issued by Mills & Reeve, which represented the solicitors, said: “The judgment is a useful reminder that when advice to settle is given at the doors of the court, that fact in itself forms part of the context when assessing whether the advice was negligent.
“In a climate of post-settlement remorse, this decision is positive for the profession. It can be far too easy for clients to agree a settlement, be it at court or in mediation, only to feel disgruntled afterwards, think they should have done better and then blame their solicitors.”