Dunhill v W Brook and Co and Crossley  EWHC 165 (QB)
Door of Court settlements, the importance of attendance notes and the standards of care owed by trainee solicitors are considered in the recent case of Dunhill v W Brook and Co and Crossley in which neither solicitors nor counsel were found to have acted negligently. Paul Ashcroft considers the main points of which arise from this judgment, which will be of particular interest to defendant solicitors and their professional indemnity insurers.
The Claimant pursued a RTA claim against a motorcyclist having sustained head and psychological injuries in an accident . The claim was initially valued at £40,000 and settled on a full and final basis for £12,500 on advice from Counsel on the day of trial after the Claimant’s main witness failed to attend. The solicitor’s firm had sent a trainee solicitor to court.
Subsequently the claimant instructed new solicitors.
Ultimately the Supreme Court found that the Claimant had lacked capacity to enter into the agreement due to the severity of her head injury and the personal injury claim was reopened with a value of approximately £800,000.
The Claimant then brought a claim against her former solicitors and counsel for negligently settling her personal injury claim at doors of the court. The court found that in the circumstances in which the claimant’s main witness had not attended court, counsel had not been negligent in reaching the view that the claim should be settled and nor had the solicitors. The fact that the settlement had been reached at the court door was important in judging the conduct of counsel and solicitors.
Duties of care owed by trainees and the perennial importance of making accurate attendance notes
The trainee solicitor sent to court by the firm was only 6 months into his training contract at the time of the court hearing .He discussed the case with the Claimant and Counsel and prepared attendance notes. The Judge indicated that if Counsel had been found negligent then so would the firm in sending a trainee who inevitably lacked the experience to judge whether there was anything glaringly wrong with Counsel’s advice .The Judge also found that the duty of care owed by the trainee was no less merely by virtue of being a trainee solicitor .
When attendance notes were produced for the court to consider, only some notes were found to be accurate records, whereas some were found to have had limitations principally due to counsel negotiating directly with each other without solicitors being present . This case proves a useful reminder to take accurate attendance notes in a way that could be relied on in the future if necessary and to, if possible , attend with counsel in any court door negotiations between barristers or at the very least make or ask for a note of what was discussed ..
The Judge , Mrs Justice Elisabeth Laing DBE indicated :
I have no doubt that the attendance note is an accurate summary of what Mr Marsh understood had happened … But it has four limitations: Mr Marsh's relative lack of experience in January 2003; the fact that he was not present during the negotiations between counsel; the incomplete insight into Mr Crossley's reasoning which it can provide; and its brevity, in comparison with the time which elapsed between Mr Marsh's arrival at court and the signing of the consent order (about two and a half hours). Those factors mean that the attendance note is not a full account of what happened.
In assessing the evidential value of attendance notes a court will therefore also take into consideration:
- The experience of the author.
- Whether the author was present at the negotiations/discussions.
- The reasoning given in the note.
- The length of the note in comparison with the time of the discussions.
- Whether the person to whom it was being put had written or approved it .