Reference:  EWHC 3151 (QB);  PNLR 2
Court: Queen's Bench Division
Judge: Davis J
Date of judgment: 18 Dec 2003
Summary: Professional Negligence - Barristers - Solicitors - Settlement - Breach of Duty - Standard of Care
Instructing Solicitors: Manches & Co for the second Defendant
The claimants alleged professional negligence against former solicitors (W) and barrister (A). In the original action, the Claimant had sued the Ministry of Defence for malicious falsehood. His claim was a classic defamation claim brought in malicious falsehood in order to qualify for legal aid. After substantial delay by the first Claimant’s original solicitors (KS), A was instructed. A advised that a threatened application by the MOD to strike out the claim would have an 90-95 per cent prospect of success. One year later, the Claimant instructed new solicitors, W in place of KS. C again advised that the Claimant’s claim was very vulnerable to being struck out by reason of delay. After settlement negotiations, the Claimant settled for £5,000 plus costs. He alleged that the advice to settle for this sum was negligent and that he had lost a valuable claim for malicious falsehood.
(1) Whether the advice that the Claimant’s claim would almost inevitably be struck out was negligent
(2) Whether the advice to settle for £5,000 was negligent
(3) If relevant, whether W’s reliance on specialist Counsel was reasonable
(1) The advice given by A was not negligent. Her view, shared by W, that the prospects of the Claimant’s claim being struck out were 90-95% or “almost inevitable” were within the range of advice that, in the circumstances as they presented themselves at the time, could reasonably and properly have been given by specialist Counsel.
(2) The advice to settle for £5,000 plus costs was also not negligent. There were many reasons justifying the advice to settle at £5,000 plus costs: (i) there was a substantial period of inexcusable delay. Over 5 years had elapsed since the action had been commenced and it had not even been set down and was nowhere near ready for trial; (ii) most of the delay was attributable to the negligence of KS or the dilatoriness of the Claimant or both; (iii) the limitation period had expired; (iv) both prejudice (under Birkett v Janes) and abuse of process (under Grovit v Doctor (CA)) were capable of being inferred.
Malicious Falsehood claims are pretty rare. A negligence action based on the loss of a malicious falsehood claim is even rarer. The robust advice on the prospects of strike out given by a specialist barrister was held to be not negligent. This was not surprising. Prior to the Woolf reforms, a Defendant facing a 5-year-old stale claim would have had little problem in having it struck out. How things have changed!