Professional negligence case update

The recent Court of Appeal case of Joanne Dunhill v W. Brook & Co and Justin Crossley looked at alleged negligence by a firm of solicitors and a barrister. The legal advisers, with the claimant’s instructions, settled her personal injury claim at the doors of court. The claimant later alleged that she had been negligently advised her to undersettle the claim. We look at the Court of Appeal’s decision and what it means.

Background

The appeal is the latest round in litigation that originated out of a road traffic accident in June 1999. Joanne Dunhill was crossing a road when Shaun Burgin struck her while he was riding a motorcycle.

Ms Dunhill issued a personal injury claim against Mr Burgin. On conclusion of that litigation, Ms Dunhill pursued a claim against her former legal advisers. This lead to a further hearing in the High Court and the most recent Court of Appeal case.

Original claim against Mr Burgin

Ms Dunhill instructed W. Brook & Co (“the Solicitors”) to act for her in her claim against Mr Burgin. In this claim she sought general damages for pain, suffering and loss of amenity, plus special damages for travelling expenses and care. County Court proceedings were issued in May 2002. The County Court judge ordered a split trial of liability and quantum.

The barrister that was originally instructed was not available, so Justin Crossley was briefed to attend the trial on liability only. The court listed the trial for a two-day hearing in January 2003. Before lunchtime on the first day, with Ms Dunhill’s consent, the parties settled the entire litigation for £12,500 plus costs.

Unfortunately, Ms Dunhill was not happy with the way the case was resolved. In June 2003, therefore, she asked the court to set aside the settlement agreement. This was on the basis that “she did not have capacity at the time of the purported settlement”. Some years later, the Court of Appeal decided in Ms Dunhill’s favour, holding the settlement to be void and setting it aside.

Consequently, Ms Dunhill was free to pursue her proceedings against Mr Burgin. The parties eventually settled the personal injury, but the level of damages remains confidential. The recent judgment, however, makes it clear that it far exceeded the £12,500 originally agreed.

Claim against solicitors and barrister

In December 2008, Ms Dunhill sued the Solicitors and Mr Crossley. This was on the basis that they had negligently advised her to undersettle the claim. She alleged that the ‘negligent’ advice lead her to suffer loss including unrecovered legal costs and the loss of opportunity to obtain treatment for her injuries earlier.

The High Court looked at the circumstances surrounding the advice to settle at the original trial. The court noted that as the Solicitors had briefed Mr Crossley only on the trial on liability, they did not present him with all the evidence. Mr Crossley based his advice to Ms Dunhill on the information he had been given, and events that had occurred on the morning of the hearing. This included a previous barrister’s advice on liability, some (but not all) expert witness reports and a key witness not turning up for the hearing. Mr Crossley advised Ms Dunhill that £12,500 was a reasonable offer and she accepted that advice. A trainee solicitor from the Solicitors was also in the settlement discussions and did not disagree with Mr Crossley’s advice.

The High Court decided that, based on the information known to Mr Crossley at the time, the view reached by Mr Crossley that Ms Dunhill was at risk of losing the entire case was not negligent. Turning to the Solicitors, the judge commented on the fact that a trainee solicitor had been sent to court (and through no fault of his own was out of his depth). The judge stated that, as a result, even if Mr Crossley had been blatantly negligent, then the Solicitors would not have had the sufficient knowledge to detect it. Therefore, had she found Mr Crossley negligent, the solicitors would also have been liable.

Court of Appeal

Ms Dunhill appealed to the Court of Appeal, who dismissed the appeal. The court commented that the High Court was entitled to come to the conclusions that it did. The court further said that it was not prepared to say that Mr Crossley’s advice was “blatantly wrong”. It stated that, based on the information in front of Mr Crossley and state of the trial on the day, he could not reach that conclusion.

The court did raise a concern with Mr Crossley’s approach to the settlement meeting. The court took into account that Mr Crossley had only received instructions just over two weeks before the trial. Therefore, it may have been more appropriate for Mr Crossley to have contacted the partner in charge of the case to inform him of any developments, rather than rely upon the trainee solicitor.

Conclusion

What we can take from this case is that whether settlement at the door of court is reasonable turns entirely on the specific facts of the case. As mentioned in the summary, in this instance the Solicitors gave Mr Crossley limited information. The information was quite different for the subsequent trial judges when deciding if the Solicitors or counsel had been negligent.

The Court of Appeal commented further about the trainee solicitor’s attendance at court (a fairly standard practice). It stated that there is “merit in the proposition that it fulfils the solicitors’ duty of care to permit a trainee to accompany properly instructed counsel… provided that he or she has instructions that a solicitor is available if the need arises.”

Are you concerned that your solicitors and/or barrister have advised you to undersettle your case? If so,  our professional negligence team may be able to assist. Call us today on 0800 988 7756 for a FREE no obligation consultation.

undersettle