In Dunhill v (1) W Brook and Co & (2) Crossley [2016] EWHC 165 (QB) Mrs Justice Laing dismissed a claim for damages for professional negligence brought by Ms Dunhill against her former solicitors (W Brook and Co) and counsel, Mr Crossley.

The Personal Injury Claim

On 25 June 2009, the Claimant was crossing the A635 with her son and his girlfriend; she was emerging from between queuing vehicles in the nearside lane when she was struck by a motorcycle travelling to the offside of the queue.  She suffered soft tissue injuries to her legs, causing scarring, and a serious closed head injury.  The Claimant had no memory of the accident and attributed this to her head injury.

The Claimant obtained two reports from a consultant in accident and emergency medicine.  In the first, the consultant concluded that the Claimant had lost her sense of smell and taste and suffered a fairly severe closed head injury (resulting in cerebral contusion and oedema), a fractured skull and post-traumatic amnesia.  There was a 3% - 4% risk of post-traumatic epilepsy, but the Claimant was said to have made a good recovery.  In the second report, the risk of post-traumatic epilepsy was revised to 1%.  The view of the Claimant’s treating clinical psychologist, that the Claimant had difficulties caused by neurological damage in the accident, was considered.

One of Mr Crossley’s colleagues advised on liability in writing; she said that it was “not an easy case”, but she thought that it was possible that some liability may attach to the motorcyclist. Counsel advised again in conference and in writing, concluding that it should be possible to establish primary liability on the part of the motorcyclist.  She valued the claim in the region of £40,000 on a full liability basis.

Mr Crossley then advised in writing and agreed that primary liability should rest with the motorcyclist and that the Claimant had reasonable prospects of success.  Mr Crossley anticipated a substantial award of damages if liability was established.

A split trial was ordered with the issue of liability to be determined first. Approximately one month before trial, a treating consultant clinical psychologist reported that the Claimant had suffered post-traumatic amnesia for eight weeks, indicating a very severe brain injury; the problems were said to be primarily due to a severe brain injury that had severely handicapped the Claimant in her everyday life.  Mr Crossley did not see this report, which was faxed to the First Defendant at about 15.30 on the day before trial.

On the morning of trial Mr Crossley saw the Claimant in conference with the Claimant’s son’s girlfriend and a trainee solicitor employed by the First Defendant.  The Claimant’s son did not attend the trial; Mr Crossley advised that due to his non-attendance, an adjournment could be sought, or, the motorcyclist’s insurer could be asked to pay a sum of money in full and final settlement of the claim without admission of liability.   The Claimant’s son was a key witness; he was the only witness who gave evidence of the approach of the motorcyclist, his speed and the sight lines.

Mr Crossley advised the Claimant to settle the whole of her claim for £12,500 plus costs; he considered that this figure was reasonable in light of the evidence he had about quantum, the litigation risk and the valuation provided by his colleague.

The Re-opened Claim Against the Motorcyclist

The Claimant instructed new solicitors and eventually the Supreme Court decided that the Claimant had not had the capacity to conduct the claim and that she should have had a litigation friend.  Baroness Hale described the settlement as a gross undervaluation.  On 5 March 2015, Mrs Justice Swift approved an apportionment of liability under which the Claimant would receive 55% of her claim.

The Professional Negligence Action

The Claimant pursued the Defendants for damages for breach of contract and professional negligence; she alleged that the First Defendant and Mr Crossley had negligently managed the claim and settled it for too little.

Mrs Justice Laing summarised the position on the morning of trial as follows: “The Claimant did not want to give evidence, her main witness was not at court and the defendant had two independent witnesses who said that [the motorcyclist] was without blame.  [Mr Crossley] had to take a view about the value of the claim; and it was better for the Claimant to get something than to get nothing at all.  The value of the claim in his view was about £40,000.  There were potential red flags but the only medical expert had expressed his conclusions and [Mr Crossley] saw no reason to go behind those.

The Principles

Mrs Justice Laing rejected any suggestion that “where a client instructs a firm to act for her, and the firm chooses to use a trainee to act on its behalf, a lower standard of care applies than would apply if the firm had used a qualified solicitor.” 

When discussing the standard of care, Mrs Justice Laing emphasised that there is a difference between a blatant error and an exercise of judgment, which, though it turned out to have been mistaken, was not outside the reasonable courses of action that in the circumstances reasonably competent members of the profession might have chosen to take.   It was an important part of the context that the advice to settle was given at the door of court.

Mrs Justice Laing also restated that 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, reject it.

How the case would have been decided by the judge if it had fought was not a question which had a scientifically right, or wrong answer.  The first imponderable was how the witnesses’ evidence would have come across.  Secondly, different judges could, without erring in law, have reached different views on liability and quantum on the evidence; similarly, a different barrister could have come to a different view about how the evidence might be received and analysed by a judge, without being negligent.

Mr Crossley’s conclusion that the claim could fail without the evidence of the Claimant’s son was not negligent.  Mr Crossley was also not negligent in not applying for an adjournment; he could not explain why the Claimant’s son was not in Court, nor could he guarantee that he would attend any adjourned hearing.

It was not negligent for the First Defendant not to have obtained further evidence on quantum before the trial and not to have recognised that the report received the day before trial might be relevant to quantum.  Mrs Justice Laing said that it was unrealistic to suggest that Mr Crossley could or should have obtained an adjournment to get more evidence on quantum.

When considering the allegations made against the First Defendant, Mrs Justice Laing said that the documents showed that the solicitors charged for the time of a qualified solicitor at trial and that is who they should have sent; if she was wrong about Mr Crossley not being negligent, then the First Defendant was negligent in sending a trainee to the trial, who was not experienced enough to detect any error by Mr Crossley.

Conclusion

Whilst Mrs Justice Laing’s judgment dealt with a claim in the context of an underlying personal injury claim, it provides helpful guidance of wider application to claims against legal professionals.  Context and the factual matrix are extremely important. Mr Crossley found himself without a key witness on the morning of trial; it is a position most trial advocates have found themselves in, when important decisions need to be taken quickly to achieve the best outcome for a client.  This decision emphasises that context is material in the assessment of the standard of care provided and that a realistic view must be taken of the prospects of successfully applying to adjourn a trial in such circumstances and of the negotiating stance likely to be taken by the opponent.

The Claimant’s claim was not straightforward; both liability and quantum were complex.  In such cases, counsel is considerably assisted by the input of an experienced solicitor at trial.  The First Defendant’s trainee appears to have been sent along to take notes, rather than to assist with analysis and advice; it appears to have been assumed that counsel would be able to deal with anything that came up on the day.  It is clear that solicitors must take a view on each case as to whether it is appropriate for a more experienced solicitor to attend the trial; whilst recovering the cost of this will always be a concern, it should not be the only factor considered.

Mr Crossley gave frank evidence, in which he admitted he could not independently remember some of what had happened.  Mrs Justice Laing said that she therefore had to “consider, where he has no direct memory of what he did or thought, what it is probable that he would have done and thought, and whether there is any other factor in the evidence which makes it improbable that he in fact did so.”  Whilst it did not affect the outcome in this case, the evidence as to what happened on the morning of trial would no doubt have been more cogent and compelling if a full attendance note had been produced by Mr Crossley, particularly because the only note taken was produced by the trainee solicitor, who Mrs Justice Laing found was out of his depth; he may not have understood the importance of all of the advice given. 

A full and contemporaneous attendance note will almost always be more compelling than the recollection of a witness many years later; attendance notes offer practitioners protection and provide valuable evidence in the event of a factual dispute.  Practitioners should not be complacent about keeping their own notes, in particular when they give crucial advice about the settlement of a claim in a high-pressure situation, like the one Mr Crossley found himself in.