As the world between the advice to be expected from solicitors and barristers becomes ever more blurred, it is useful to have a look at some examples where in recent cases the courts have looked at who should really be advising the client.
More often than not the situation will arise where a solicitor and a barrister will both be involved in advising the client on the appropriateness of a step to be taken in proceedings – particularly in settlement. What if the advice is wrong? How much can a solicitor say that he/she was simply relying on the advice of counsel?
In Hickman v Blake Lapthorn & Fisher, a claimant was advised by both his solicitor and barrister to settle his personal injury claim for £70,000 just before trial. This was an under-settlement and in the professional negligence action which followed against the legal advisers, the claimant was awarded £130,000 (including interest) – split two thirds as against the barrister and one third to the solicitor.
Although counsel, an experienced personal injury practitioner, had only been instructed to deal with a trial on liability, an offer on quantum was made “at the door of the court”. He was in possession of all the necessary reports and evidence but he negligently failed to realise that there was a real prospect that the claimant would never work again.
The judge at trial of the subsequent professional negligence claim (brought against both the solicitor and counsel) found that, even though the solicitor: (1) was aware of the extent of the claimant’s disability; (2) knew more about the medical reports and the client than counsel; and (3) should have intervened when she saw that counsel was advising on the wrong basis; an equal split on liability was not “fair” in the circumstances. This was because the solicitor had never handled a similar claim before and was “very much the second in the legal team at court”.
Who paid the costs?
The judgment was followed by a hearing on costs. This was also noteworthy because the solicitor argued that the barrister should pay all the claimant’s costs from a date before the trial because of his refusal to mediate. The claimant (understandably, given the nature of the defendants’ position) would not settle with either defendant alone and Bar Mutual would not accept the claimant’s offer to settle at £150,000 (plus costs).
The consequence of this approach was that, although the amount of damages awarded to the claimant was £20,000 less than the claimant's offer, £205,000 in costs were incurred which could have been avoided. This is a situation that unfortunately all too often appears to arise in cases where there are solicitor and barrister defendants and where there is often an easy answer in terms of “binding” adjudication by a third party (having dealt with the principle claim in the first instance).
This decision on costs is interesting when looked at against the general trend of the courts “requiring” parties to mediate – and the recent decisions on the costs consequences of not doing so.
Counsel or solicitor – who is responsible for deciding whether to obtain fresh evidence?
Another case which casts light on how the relationships between solicitors and counsel are viewed by the courts is Hicks v Russell Jones & Walker. In this case the key issue was whether the solicitor ought to have obtained fresh evidence on appeal and in particular retrospective valuation evidence of the value of a hotel. The court in fact held that this was a question that the solicitor ought to have asked leading counsel to advise on as he was preparing the case for trial – it was not a point that the solicitor could “sensibly have decided for themselves without consulting him” (leading counsel).
The quirk of this case is that the court accepted even if leading counsel had been consulted he would not have advised that further evidence be obtained and accordingly the claim succeeded in part only on liability but failed on causation. It is speculation as to what the position would have been if such advice was taken and leading counsel got it wrong – insisting on valuation evidence when none was necessary – would he/his insurers have paid the additional costs that were incurred? On the basis of the view taken by the court in this case the answer should be yes.
The principle from these cases is that whilst solicitors are expected to be able to advise their clients once counsel is involved, that duty is lessened. However, solicitors should be wary of taking these authorities as providing a comfort blanket, that once counsel is instructed they are absolved of responsibility. That is clearly not the case and there remains a duty to ensure that counsel is properly instructed and provided with all relevant instruction.
Equally the question of how far counsel is expected to go in his/her advice also arises – is counsel going to say he/she is only instructed to deal with liability and is not able to deal with offers of settlement at the door of court? The answer to this is generally no and the balance between actually providing the advice the client wants as against exposure to a negligence claim, is a difficult one.