Contribution claim

Case update: Contribution claims in professional negligence cases

In cases where more than one party may have been negligent, it is possible for one of the negligent parties to seek a contribution towards the damages to the Claimant. A recent High Court case looked at a claim against a firm of solicitors and a barrister. Despite the claim against the barrister being dropped, he was ordered to pay 40% of the damages awarded to the claimant. We look at contribution claims and the case of Percy v Merriman White and others.

Background

Mr Percy instructed Merriman White (“the Solicitors”) to act for him in relation to a failed joint venture with Mr Trevor. The Solicitors, in accordance with their instructions, sought the advice of a Barrister, David Mayall (“the Barrister”). The Solicitors asked him to, amongst other things, “advise instructing solicitors generally in regard to strategy”.

Both the Solicitors and Barrister advised Mr Percy that he had a derivative claim worth pursuing. He therefore sought the Court’s permission to bring a claim. A hearing was scheduled, and in the interim the parties agreed to mediate. At that mediation Mr Trevor offered to settle the claim for £500,000. Mr Percy sought the Solicitors’ advice and rejected the offer; an offer that in hindsight represented a settlement far greater than that which he later achieved. Incidentally, the Barrister later (without reference to the offer) advised that “a settlement figure of between £400,000 and £750,000 excluding costs would be worth considering”.

Despite the offer being “worth considering”, the Barrister advised Mr Percy and the Solicitors to “press on with proceedings with a view to obtaining disclosure”. He further expressed his view that there was little risk that the joint venture company would simply be wound up. He advised, “just and equitable winding up was rarely ordered, that it was a nuclear option and the most likely outcome was that Mr Trevor would be ordered to buy out Mr Percy’s shares”.

Mr Percy therefore proceeded to the permission hearing. The Court observed that the joint venture company “is in short a natural candidate to be wound up on a just and equitable petition by either shareholder”, thereby weakening Mr Percy’s position. Mr Percy and Mr Trevor then settled the claim at £65,000. This of course was significantly less than the amount offered at mediation.

Mr Percy’s professional negligence claim and the Solicitors’ contribution claim

Following settlement, Mr Percy brought a claim against the Solicitors and the Barrister for negligence and breach of contract. The claim was ultimately settled between Mr Percy and the Solicitors, without the Barrister’s agreement. The Solicitors later sought a contribution to the damages it was to pay to Mr Percy from the Barrister, relying upon the Civil Liability (Contribution) Act 1978 (“the Act”). The Barrister resisted on a number of grounds. Therefore. a dispute ensued between the parties, over the correct interpretation of the Act.

The Barrister argued that Mr Percy’s claim would not have succeeded, had the firm properly defended the claim. By default, he argued that had the firm properly defended the claim that he would not be liable, as they would have suffered no loss.

The Court’s decision

The court disagreed. It held that a Defendant (D1) seeking a contribution from another Defendant (D2) need only show that the facts of the case as alleged by the claimant demonstrate a “reasonable cause of action”. D1 does not need to prove that there was a reasonable cause of action against D2. Equally, the Court held that if there was a reasonable cause of action, it would not consider arguments/defences from D2 as to the legitimacy of the claim.

This may seem somewhat unfair, given that the Barrister could not defend himself. The court addressed this to a degree. It stated that the statute is clear; to allow the Barrister to argue the merits of the original case would be to ask the Solicitors to argue their own negligence. This would, in the Court’s view, turn “all the usual conventions of civil litigation upside down that is, it would require D1 to prove C’s case against himself”.

The court decided the contribution claim in favour of the Solicitors. The Barrister was to pay 40% of Mr Percy’s damages.

Our professional negligence team has many years of experience in bringing claims against professionals. If you have a claim against one or more professionals, contact us today on 0800 988 7756.


An introduction to Litigation

Can I sue my barrister?

When you instruct a barrister (whether through a solicitor or by direct access), you are relying upon their expertise. They are there to do as you (or your solicitor) instruct; whether to provide advice, prepare key documents, or to represent you in court or tribunal. As barristers are experts, it is entirely reasonable to expect a level of service and for things to go as planned. If your barrister makes a mistake, however, you may be able to sue them for professional negligence.

So, what do you need to show to bring a claim against your barrister? You may have a claim for breach of contract and/or in negligence. In this blog, we will look at negligence claims only.

1. A duty of care

In a claim for professional negligence, you must be able to show that your barrister owed you a duty. This means that your barrister was required to carry out their duties to the reasonable standard expected.

In most cases, it will be clear that your barrister owed you a duty of care. In fact, often, a barrister will freely accept that they owed you a duty of care. This duty may take various forms and some examples include:

  • A duty to advise you fully and adequately;
  • A duty to ensure that they are fully prepared and sufficiently experienced to advocate on your behalf (or to advise you generally); and
  • A duty to ensure that all documents that they prepare on your behalf are complete, accurate and, importantly, that they accord with your instructions.

2. Breach of the duty of care

The second thing you need to show to successfully sue a barrister is that the barrister’s conduct fell below the standard expected of a reasonably competent barrister in that field. This is known as breach of duty. This is where claims become slightly more contentious. There are of course often differing views as to how one should act in different situations. A solicitor will be able to advise you on whether your barrister has been negligent. Examples of how a barrister may have negligently performed their duties include:

  • Failing to adequately prepare for a trial or court hearing (causing you loss);
  • Providing incorrect legal advice; and
  • Preparing inadequate legal documents.

3. Have you suffered a loss?

The final requirements (which must be satisfied) are to show that you suffered loss and that this loss is the result of the barrister’s negligence (known as causation).

In its simplest form, to show loss and causation, you must be able to demonstrate (on the balance of probabilities) that ‘but for’ your barrister’s negligence you would likely have suffered no loss, and that the barrister’s negligence was the legal cause of the loss (i.e. it cannot be said that another is more at fault, or that an ‘intervening act’ excuses the barrister’s liability).

There are often complex arguments associated with causation and quite often parties will spend considerable time disputing it. It is therefore important that you seek expert advice.

Lastly, you must show that you have suffered actual loss. This means that the issue is more than a service complaint (inconvenience/general dissatisfaction). This loss can take various forms. For example, it may be that (due to a barrister’s negligent advice) you had to instruct (and pay the costs of) another barrister. Often though, where a barrister has been negligent there can be more serious consequences, such as the court striking out (dismissing) your claim. If this is the case (assuming your barrister is responsible for the case being struck out) you may be able to pursue your barrister, in professional negligence.

Time scales for bringing a claim against your barrister

If you are considering suing your barrister for professional negligence, you must do so without delay. There are strict deadlines which apply to these cases, which if missed, may prevent you from bringing your claim. These time scales are referred to as ‘limitation’.

Limitation is unfortunately not always straightforward.

Generally, if you want to pursue your barrister in negligence you will have six years from the date of the barrister’s alleged negligent act. Often this will not be a problem, as a barrister’s negligence will be apparent immediately. However, there may be situations where you may not discover the barrister’s negligence until after the six-year period has expired. In such cases, an exception exists. This would give you three years from the date on which you reasonably became aware of the barrister’s negligence. Whilst this protection exists, it always best to seek immediate legal advice where you feel that your barrister may have negligently advised/represented you.

Our professional negligence team has many years of experience in bringing claims against barristers who have acted negligently. Call us today on 0800 988 7756 to speak to a specialist.


sue builder

Can I sue my builder or construction professional?

When you instruct a builder, you are relying upon their expertise; to advise and to carry out the agreed works, in accordance with your instructions. Generally, people instruct builders to carry out specialist works. It is therefore unsurprising that legal protections exist to give you the right to pursue construction professionals when things do not go quite as expected. You may be able to sue your builder for breach of contract and/or professional negligence.

So can you sue your builder, roofer, carpenter or other construction professional? Let’s look at what you would need to show for a successful claim.

The contract

For a claim for breach of contract, the first stage is to prove that there was a contract between you and the builder. This contract may have been made orally, but it is much easier to show with a written contract. You will also need to be able to show the terms of the contract. Again, this is much easier to present if you had a written contract.

Duty of care

In a claim for professional negligence, you must be able to show that a duty of care existed between you and the builder. This should be fairly straightforward, and most builders would readily accept that they owed a duty to their consumer client. Examples of duties that a builder may owe their client include:

  • Completing building works with reasonable care, skill and diligence;
  • Completing the building works within the agreed, or a reasonable timeframe;
  • Ensuring that sourced materials are as described/agreed and importantly, that they are of reasonable quality;
  • Ensuring that the sourced materials are adequate; and
  • Adhering to and properly obtaining building consents.

Breach of contract and/or duty

Once you have established that a contract and/or duty existed, the next step is to show that the contract has been breached, or that the builder’s performance of that duty has fallen below the reasonably expected standard. This becomes slightly more difficult to show and you may find it useful to instruct a specialist solicitor. A solicitor will advise you on whether your builder has breached their contract or negligently performed their duties. Examples of how a builder may have breached their contract and /or negligently performed their duties include:

  • Building works have not been completed to a reasonable standard.
  • Damage has been caused to a property, by a builder, whilst completing the building works.
  • Where the proper building consents were not obtained.
  • Where unreasonable delays have caused a consumer loss.

Have you suffered a loss?

The final hurdle is to show that, as a result of the builder’s breach of contract and/or negligence, you have suffered reasonably foreseeable loss. Importantly, this loss must be more than ‘mere inconvenience’ and you must have suffered actual loss. This loss can take various forms. However, examples include where a consumer has had to pay another builder to carry out rectification works; or where owing to unjust delays, a consumer has had to instruct a separate builder to complete the works.

Time scales for bringing a claim against your builder

It is imperative that if you are considering pursuing your builder in negligence and/or breach of contract you do so as soon as possible. This is because there are strict deadlines which apply to these cases, which if missed, could mean that you may not be able to bring your claim. These time scales are called ‘limitation’.

Limitation is a complex area. However, as a rule, if you want to sue your builder for breach of contract, you have six years from the date of the breach to bring a claim. Similarly, if you want to bring a professional negligence claim, you have six years from the date of the negligence to bring a claim.

Quite often with building disputes it is clear upon completion, or sooner, that the works have not been carried out properly. However, it is also common, particularly, where larger building works are carried out, that the defect only becomes apparent after the six-year limitation deadline has expired. In such cases, an exception applies meaning that you would have three years from the date on which you became aware of the negligence.

Our professional negligence team has many years of experience in bringing claims against builders who are in breach of contract and/or who acted negligently. We can help you sue your builder and recover damages to compensate for your loss. Call us today on 0800 988 7756 to speak to a specialist.