Written advice could have avoided negligence claim, courts tells firm

Email: Counsel’s advice was not forwarded

A law firm might have avoided a professional negligence case if its senior partner had provided more advice in writing rather than orally, the High Court has said.

But Dan Squires QC, sitting as a High Court judge, still preferred the evidence of Matthew Knight, senior partner of Kent firm Knights Solicitors, in deciding that he did not act negligently or breach his retainer.

The judge said: “I am sure, with the benefit of hindsight, things could have been done differently and that advice and other information that was conveyed, on occasions, orally could have been provided in writing. That may have avoided this litigation.”

The claimants were Mervyn Lambert and his plant hire company, who instructed Knights to challenge a decision of South Norfolk Council to grant planning permission for a development in Norfolk close to where he lived.

Permission to bring the judicial review was refused on the papers and then at an oral hearing in 2017.

The claimants argued that the judicial review was “doomed from the outset”, and that had they been properly advised – and in particular been told of counsel’s views on the case – they would never have pursued the claim.

They sought to recover the majority of the fees they paid.

The differing recollections of the solicitor and client were at the heart of the dispute and the judge preferred Mr Knight’s evidence, while stressing both did their best to give accurate accounts of what happened.

Mr Squires held that, while others solicitors might have been “less cautious” in their advice over whether the council’s decision was susceptible to judicial review, “I do not consider that the approach the defendant took was outside the standards to be expected of a reasonably competent solicitor specialising in planning law”.

Counsel was instructed to produce a letter before claim and, in his covering email, referred to various difficulties with any potential challenge.

Mr Knight did not forward the email but, in light of the surrounding circumstances, the court concluded it was “more likely than not” that Mr Knight passed on the barrister’s views to Mr Lambert orally.

The claimants asserted that Mr Knight gave “bullish advice” at the outset and continued to be encouraging even when counsel was advising that he could find no grounds for judicial review.

In evidence, Mr Knight said he did believe that the claim would get permission on the papers and was less cautious on the merits than counsel.

“As it transpired, and with the benefit of hindsight, [counsel’s] more ‘cautious’ assessment of the merits may have been more accurate than Mr Knight’s,” the judge said.

“I do not, however, consider the claimants have established the case was so obviously poor that any reasonably competent solicitor would have advised Mr Lambert not to proceed with the case, nor that no reasonably competent solicitor could have reached the same view on the merits as Mr Knight did.”

Mr Squires added that it was “not appropriate to consider only whether some particular statement by Mr Knight, taken out of context and in isolation, may have been overly ‘bullish’ or ‘encouraging’. It is necessary to consider the advice presented to Mr Lambert in the round”.

This included that Mr Lambert knew of counsel’s views and that Mr Knight had cautioned that the outcome of any judicial review was hard to predict.

The judge continued: “Even if I had found that some particular comment from Mr Knight was overly encouraging, I would not have concluded that, taken overall, the claimants received advice about the prospects of the litigation that was outside the range any reasonably competent solicitor would have given.”

    Readers Comments

  • James Bowers says:

    There quite a few English cases which hold that the Court should prefer the client’s versions of alleged conversations on the grounds that for the client it is a 1 off case whereas the solicitor may have many such cases. Lambert v Knights highlights the absurdity that Lamberts paid for the email advice from the barrsiter but were never given a copy of it.

    I think Knights may have been lucky on this one. It could be argued Knights has a contractual duty to forward all corro from the barrister to Lambert.

    Also written advice hits the client much harder than a conversation on the phone – it is like chalk and cheese really.

    The case is also a stark reminder of the stupidity of not including client, solicitor and barrister in every email whereas a lot of solicitors and barristers carry on like it is a secret society and exclude the client from emails

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