Barristers – Legal advice – Limitations – Professional negligence – Solicitors

Pritchard Joyce & Hinds (a firm) v Batcup & anor: CA (Civ Div) (Lords Justice Sedley, Dyson, Sullivan): 5 May 2009

The appellant barristers (B and S) appealed against a decision ([2008] EWHC 20 (QB), [2008] PNLR 18) that they had been professionally negligent in failing to advise of the time limit applicable to a potential claim.

B and S had been instructed by the respondent solicitors (P) on behalf of clients (F). P had settled a claim for negligence brought against them by F. P contended, and the judge held, that B and S had also been negligent and were responsible for the same loss under the Civil Liability (Contribution) Act 1978. The negligence alleged by F against P, and by P against B, was their failure to advise F of the time limit applicable to a potential claim against their previous solicitors (W). The claim against W would itself have been a claim for negligence in failing to advise F of the time limit applicable to a claim against another firm of solicitors (L). The claim against L would have been for negligent advice given to F which it was said led to them losing the opportunity of the favourable settlement of a complicated dispute arising out of a property development project in Spain. The advice in question was given in late October 1985, and the settlement opportunity was lost by the end of that month. Accordingly, any claim for that loss would have to have been brought by the end of October 1991, and any action against W for failure to advise F of that deadline would have to have been brought by the end of October 1997.

Held: (1) The judge held that the lost settlement claim against L had substantial value as at October 1991 when it was lost. He rejected P’s contention that the advice given by L in a letter was unbalanced, superficial and erroneous. He found that the substantive points in the letter taken by themselves were unimpeachable. P had not alleged that if the advice in the letter was unimpeachable L was nevertheless negligent on the basis of tactical advice given orally. The judge recognised that it did not follow from his conclusion that the lost settlement claim had a substantial value that W were negligent in failing to advise about it prior to the end of October 1991. However, he took the view that W should have been put on notice that there might be other grounds apart from the letter for criticising L’s advice. In the circumstances, a reasonably competent solicitor would have treated the letter as sufficient evidence of L’s advice and would not have made further enquiries. In concluding that W should have pursued further enquiries in 1991 the judge had applied too high a standard. Since it was not open to him to conclude that it was arguable that any reasonably competent solicitor in W’s position in 1991 would have pursued their enquiries further, it followed that B and S could not be criticised for not appreciating before the end of October 1997 that there might be a claim which had a real prospect of success against W: there was no such claim. That was sufficient to dispose of the appeal in their favour.

(2) The judge also erred in concluding that B, from receipt of his instructions in 1995, should have been aware that the lost settlement claim formed part of the claim which F wished to bring against L. In accordance with his instructions, B had pleaded a ‘lost settlement claim’ but that claim was not that L’s advice had been negligent, but that L had failed to secure a better settlement either by litigation or negotiation. That was not the ‘lost settlement claim’ as defined by the judge and it would not have been apparent to any reasonably competent barrister in B’s position that F wished to pursue the lost settlement claim as defined by the judge. On the evidence there was no basis for supposing that, contrary to their own evidence, either B or S in consultation in 1997 understood that the lost settlement claim as defined by the judge was part of the claim that F wished to pursue even though it had not been pleaded, nor was there any reason why any reasonably competent counsel should have had such an understanding. The possibility of a claim against W in respect of the lost settlement claim as defined by the judge would not have occurred to any reasonably competent barrister and, accordingly, B and S were not negligent, Saif Ali v Sydney Mitchell & Co [1980] AC 198 HL followed.

Appeal allowed.

John Wardell QC, Tiffany Scott (instructed by Withers) for the appellants; Sue Carr QC, Anneliese Day (instructed by Barlow Lyde & Gilbert) for the respondent.