When Alexander Pope wrote the words ‘To err is human; to forgive, divine’ he almost certainly was not intending them as advice to a dissatisfied client. Unsuccessful litigants are often, perhaps not unnaturally, more in the mood for to blame than forgive and their target may well the solicitor who has represented them. Sometimes the complaint will be well founded. The mere fact, however, that the case has ‘gone wrong’ does not mean there has been negligence on the part of the lawyers.

The judgment of Mr Justice Coulson in Boyle v Thompson Solicitors [2012] EWHC 36 contains a useful summary of the scope of a solicitor’s duty to his client in respect of mistakes made in litigation. It makes the important point that an errors of judgment can be made by a competent lawyer in the heat of a claim without any professional duties having been breached.

The Claimant, Mrs Boyle, brought an action against solicitors who represented her in a Criminal Injuries Compensation appeal. In that appeal she had been claiming a six-figure sum for loss of earnings which she attributed to PTSD sustained as a result of a criminal assault. The material before the panel included evidence from her treating psychiatrist and also from an independent psychologist engaged on Mrs Boyle’s behalf. Whilst the treating consultant was generally supportive of her claim, the independent expert’s reports were much more equivocal. The appeal panel found that this claim was not made out and Mrs Boyle’s appeal was dismissed. Very shortly afterwards she made a claim against the solicitors that had acted for her.  

Mrs Boyle’s allegations of negligence against her solicitors included failing to ‘beef up’ the psychologist’s evidence by putting further questions to her or having a conference to explore ways in which her reports could be ‘improved’. Mr Justice Coulson roundly rejected these allegations. It was not, he said, for the solicitors to ‘fuss around’ the expert. They had made a ‘judgment call’ not to make further enquiries, bearing in mind that could do more harm than good, and the approach they had taken was a legitimate one.

In reaching his decision Mr Justice Coulson set out at paragraph 54 of his judgment the following helpful summary of the authorities:

  1. The court "must be aware of imposing upon solicitors…duties which go beyond the scope of what they are required and undertake to do…the test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession": see Midland Bank v Hett, Stubbs and Kemp [1979] Ch 384, per Oliver J. at p.403.
  2. This test must be applied by reference to the reasonably competent practitioner specialising in whatever areas of law he or she holds himself out as a specialist. Thus, in Matrix Securities Limited v Theodore Goddard [1998] PNLR 290, a case concerned with tax advice, the standard was that to be expected of a reasonably competent firm of solicitors with a specialist tax department, whereas in Balamoan v Holden & Co [1999] NLJ Prac. 898, where the defendant was a solicitor in a small country town instructed by a legally aided client in a comparatively small claim for nuisance, the Court of Appeal held that it was inappropriate to apply too rigorous a standard of care.
  3. On matters of procedure, the solicitor is not negligent if he fails to display exceptional ingenuity in matters of tactics or procedure. What is required of a solicitor is reasonable competence and reasonable familiarity with the procedures of the courts in which he practices: see Hayward v Wellers [1976] QB 446 CA.
  4. Errors of judgment, as opposed to errors that no reasonably well informed and competent member of the profession could have made, will not give rise to liability: see Saif Ali v Sydney Mitchell [1980] AC 198 at 218. To put it another way, where the solicitor is in a dilemma, not of his own making, and is forced to choose between two or more evils, the court will be slow to castigate his actual decision as negligent (see paragraph 11-103 of 'Professional Liability' by Jackson and Powell, 7th edition).
  5. Hindsight may prove advice wrong, but "hindsight is no touchstone of negligence": see Argyll v Beuselinck [1972] 2 Lloyd's LR 172.’

It is right, of course, that incompetent lawyers should not expect the courts to protect them from claims by their dissatisfied clients. It is equally right, however, that a competent lawyer should be able to make a ‘judgment call’ without the fear or facing a negligence action if things do not work out as hoped. As Megarry J put it in Argyll v Beuselinck, one of the cases Mr Justice Coulson referred to, ‘On any footing, the duty of care is not a warranty of perfection.’