Advice given to Claimant to settle claim against former solicitors was not negligent - Fraser v Bolt Burdon Claims & others [23.11.09]

In this case, Miss Fraser sued the defendant solicitors, Bolt Burdon, for negligence following advice they, and the Counsel they had instructed, gave her to settle her negligence claim against her previous solicitors, Parlett Kent (PK). The barristers were third parties to the litigation because, by the time Miss Fraser sought to join them, the claims against them were time-barred.

In the underlying proceedings, Miss Fraser had instructed PK to commence a clinical negligence claim in respect of psychological disturbances she claimed followed the abrupt withdrawal of drugs during a hospital stay. PK issued these proceedings out of time, so the claim was dismissed.

When sued, PK admitted liability but disputed quantum. On the day of trial, Miss Fraser accepted, on advice, a sum in settlement of the claim against PK. Subsequently, she claimed to have been negligently advised by Bolt Burdon and the third parties to accept too low a settlement sum.

Decision

The test to be applied, under the principles in Bolam v Friern Hospital Management Committee [1957], is whether no reasonably competent solicitor or barrister could have advised settlement on the terms achieved. Only if this was the case, would the advice given be negligent. That would turn on what, at the date the advice to settle was given, a reasonably competent adviser would have assessed were the prospects of success in the claim against PK and what sum was likely to be recovered, had the claim been tried. Those things did not turn on the immediate circumstances in which the settlement was achieved or the actual thoughts of the legal advisers involved but on an assessment of the strength of the case which the reasonably competent lawyer would have made on the papers.

In this instance, the claims were dismissed, as the advice given was, on the facts, “extremely good advice”. The overwhelming likelihood was that, had Miss Fraser not settled, she would have recovered less - quite possibly nothing - at trial.

Comment

The case serves as a harsh reminder of how cascading litigation against legal advisers by a determined individual can arise from time to time. This is notwithstanding the payments of what seem, to insurers and professionals, to be reasonable settlements, which more than cover the original loss and which insurers fund largely because of irrecoverable costs risks, rather than on the merits. Cases of this sort are thankfully rare, but are usually disproportionately expensive and often the unsuccessful claimant has very limited assets to satisfy any costs award that may be obtained if the case is successfully defended.

One interesting (if unanswered) question is whether the general diminution in the availability of legal aid over recent years has resulted in a drop-off in claims of this type. Much has been written about the reduction in legal aid reducing access to justice, but less about its effect on deterring vexatious litigants.