The facts: In the background was just the kind of ‘accident’ which can happen in a typical law firm (and which can put counsel in the firing line when struggling with an inadequately prepared case). This time the results were disastrous: when the claimant broke his leg he cannot have anticipated it would lead to over 10 years of complex litigation. Many litigators will have found time to read the House of Lords judgment in Moy v. Pettmann Smith. In summary, Mr. Moy broke his leg at football in 1992. An operation was performed negligently, which impaired his mobility. He sued the hospital in 1994, using a barrister introduced through contacts, and a solicitor introduced by the barrister (these details given the Court of Appeal judgment). Two major events confused the picture. A second surgeon undid some of the damage done by the first surgeon, and initially advised that Mr. Moy was probably gong to be fine, but later that turned out to be over-optimistic (which meant the value of the claim rose during litigation). The second thing that happened was that solicitor recommended by counsel left the firm. The case was taken over by one (then another) trainee, working on her first ever PI case, nominally supervised by a very busy solicitor not specializing in PI. The trainee failed to grasp that the defence’s arguments, which she thought were only about quantum, included an argument that loss was caused by the original broken leg, not by the operation. Therefore at the last minute counsel realized that the expert report, which needed to cover that causation point, did not cover it. By this time the claimant had already had two extensions of time for filing papers, and trial was imminent. When it became clear that the judge was not minded to give the extension the defence lowered their offer to £120,000. On Counsel’s advice Mr. Moy accepted. He then sued the solicitor, in effect for being too slow to obtain the expert report covering the causation issue. Counsel was joined on the basis that not advising Mr. Moy to accept £150,000 while it was still on offer was negligent.

The issues: The case raises issues on at least two levels. The only live issue on appeal was whether Counsel had been negligent (a) to advise against accepting the £150,000 while it was still on the table; and (b) even if that was not negligent, whether counsel had been negligent in failing to spell out to Mr. Moy the reasoning which her advice was based on, so he could make an informed decision whether to settle at that figure. But on another level, the case does provoke thought about the broader question of how litigators should deal with an ongoing case in which they know, or ought to know, that their own negligence has devalued the client’s claim, or has left their client’s claim more dependent on judicial discretion – perhaps, as here, on a case management point – than it ought to have been.

At first instance Counsel was found not have been negligent. In the Court of Appeal, the majority found Counsel in the clear for not advising Mr. Moy to take the £150,000, although she should have been aware of cases showing that the courts are getting tough on failure to comply with unless orders. However, Counsel was found to have been negligent in failing to point out to Mr. Moy that accepting £150,000 (which undervalued his claim) need not be the end of the story. She should have told him he could take that money, then sue his solicitors for the shortfall. On this point the House of Lords reversed the Court of Appeal, largely on the basis that the removal of the bar on advocates liability (in Hall v Simmons) should not give rise to ‘defensive’ advocacy.

Advocates in civil practice will probably want to read the whole judgment, so I will not summarise it further. Nevertheless, Lord Carswell’s quotation (at paragraph 59) from a Canadian case bears repetition:

‘The same thought has been expressed in the Ontario High Court by Anderson J in Karpenko v Paroian, Courey, Cohen & Houston (1981) 117 DLR (3d) 383 at 397-8 in a passage which mutatis mutandis is material to the present issues:

  "What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a law-suit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst constitutes an error of judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error … that negligence would be found."’

The danger of confusing advice: Practitioners will sympathise with counsel’s decision not to point out, when advising on the offer of £150,000, that Mr. Moy could accept it and sue his solicitors. Giving that advice, as well as being embarrassing, is fraught with problems. In the Court of Appeal (at paragraph 49) Hart J said, 'To the extent to which she [Counsel] was factoring in the prospects of success against the solicitors - what Mr Ross described as the "safety net" underpinning her advice - there is no evidence that she had in mind that the claimant owed a duty to the solicitors to mitigate his loss.' But perhaps counsel should have borne that in mind, in which case she would have had tell Mr. Moy, ‘We only have a 50:50 chance of getting in the new evidence your case needs. You can fight on, or you can accept the money and sue your solicitors for the shortfall. On the other hand, if you are going to sue your solicitors, you might be criticised for not fighting on with this case in order to mitigate your losses.’ That advice would be confusing for many clients, including perhaps for Mr. Moy, a building labourer. Is it surely not negligent to withhold advice which is technically correct, but likely to confuse the client? Counsel’s role is in part to guide the client about how to act, not to give the client a tutorial on the relevant legal issues which the case raises.

The danger of putting a solicitors’ negligence suit ‘on the table’ on the eve of trial: However, there is another difficulty with advising the client to sue instructing solicitors, while the case is ongoing. When the trial of complex case is imminent, that is not a good time to change solicitors. Suppose Counsel had given Mr. Moy the option of suing Pettmann Smith, and Mr. Moy had decided to fight on, either because he thought he should mitigate his loss before suing the solicitors, and / or because he choose to take a punt on the judge exercising discretion in his favour on a procedural point. That would place the solicitors in an invidious position. It would be unfair to drop their client on the eve of trial. On the other hand, once the purpose of continuing the litigation is in part to mitigate the damages the solicitors are likely to have to pay, the solicitors are in a difficult position. It is arguably improper for them continue to act when their own interests are engaged (in a way not sanctioned by the rules on CFAs). On the other hand, it could be argued that solicitors often do continue to act when they have some basis to recognize they are under threat of a successful negligence suit if the case does not go well, and perhaps the lay client is entitled to know when that is happening.

These problems do not have easy answers. Their Lordships did not say so, but one cannot help wondering whether they were inclined to think that when trial is imminent, and the claimant has no realistic chance of finding new and effective solicitors, perhaps counsel are justified in delaying until after trial any advice to the effect that a disappointing result should probably be followed by a negligence suit against the solicitors.

Put another way, I am suggesting that the moment counsel become aware of a real chance that solicitors’ negligence has prejudiced the lay client, they are under a duty to consider whether the lay client might benefit, given the stage in proceedings, from a change of solicitor simply because that solicitor’s own interests are now engaged in the outcome of the case. If it is a very bad time to change solicitors, there seem good reasons why counsel should not mention the possibility or a negligence suit. Of course, if it is plain that a change of solicitors might well be in the client’s interests at that particular stage in the litigation, counsel should say so. Naturally the problems will be exacerbated in the case of CFAs, which already entail built-in conflicts between the client’s interests, and the duties and interests of the lawyers.

In general, the warning from the House of Lords that it will be very difficult successfully to sue counsel for negligence in their advice on whether to accept a court door settlement is to be respectfully, and heartily, welcomed.

Dr John Birchall - Professional English, Legal English, and Common Law Training