Barrister’s advice “not complete defence” in law centre negligence case

Mary Ward Legal Centre: Arguably held itself out as having specialism

A master was wrong to find that a law centre’s reliance on advice from a specialist barrister merited summary judgment on a negligence claim against it, the High Court has ruled.

Mr Justice Turner said that the level of expertise of the Mary Ward Legal Centre was “not susceptible to a confident characterisation of ‘mere generalist’ on the very limited information” available.

He overturned a decision of Master McCloud in the King’s Bench Division to grant summary judgment in favour of the central London law centre.

The High Court heard that Anna Christie, a litigant in person, had a long lease of a flat near The Shard in London, but had built up substantial debts as a result of not paying service charges.

Ms Christie instructed the law centre to represent her in 2012 when Southwark council began forfeiture proceedings. The centre obtained advice from counsel, which recommended that she sell the flat and pay off the arrears to avoid forfeiture, which is what she did.

She launched negligence proceedings against the law centre in 2019, arguing that the county court had the power to grant relief by attaching the service charge arrears as a loan secured by a charge against the property.

This would have enabled her to continue living in the property and she would have avoided the losses she has incurred as a result of the forced sale.

Master McCloud, who heard the case in April 2021, rejected arguments from the law centre and the barrister involved that the claim should be struck out on limitation grounds.

But she accepted the law centre’s contention that it was entitled to rely upon the advice of counsel as a complete answer to any case which it may otherwise have had to answer, the so-called ‘reliance defence’, and granted summary judgment.

Turner J said the master had correctly summarised the law – that a solicitor does not abdicate their professional responsibility when seeking the advice of counsel, but the more specialist the advice, the more reasonable it is for the solicitor to accept and act on it.

However, she had not applied it properly in the context of an application for summary judgment.

The judge said that of “central importance” to Master McCloud’s conclusion was her finding that the law centre were “generalist solicitors”, without “specialist” experience.

“In my view, the question as to the level of expertise to be attributed to any given solicitor in the context of the reliance defence is not necessarily one which can be adjudicated upon with sufficient confidence in the context of a summary judgment application.

“In this case, the first defendants at least arguably held themselves out as having specialist expertise in housing and debt.”

Ms Christie alleged in her negligence claim that other leaseholders with much bigger debts used the charging order approach and did not lose their homes.

Turner J said “a schedule of what purported to be many similar cases” was not before the master but may be the sort of evidence that could reasonably be expected to be available at trial.

He added that judgment was awaited on the defendants’ appeal against the ruling on the limitation issue.

Photo: Philafrenzy, CC BY-SA 4.0 <>, via Wikimedia Commons

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