Lawyers not negligent to advise settlement on steps

Topics: Personal injury & clinical negligence,Courts business,Professional negligence

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The High Court has rejected a professional negligence claim from an injured pedestrian who felt her legal team had under-settled her case.

The Honourable Mrs Justice Elisabeth Laing (pictured) said Yorkshire firm W Brook and Co, and the instructed barrister named as Mr Crossley, did not breach their professional duties in advising the claimant to settle.

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The case was on the verge of going to trial when Crossley and a trainee solicitor from the firm, named as Mr Marsh, advised her to settle her whole claim for £12,500 on a full and final basis.

The claimant had suffered serious head injuries after a collision with a motorcycle in 1999 as she crossed a road in West Yorkshire. A subsequent medical report found her existing psychological problems were made worse by the accident.

She claimed that the solicitors and Crossley negligently managed the case and settled it for too little.

The case was listed for a two-day trial on 7 January 2003 but on the day it quickly became clear that one of the key claimant witnesses was unlikely to attend.

Counsel advised that the client could apply for an adjournment but that the judge might be unwilling to allow one in the circumstances.

An alternative plan was offered: to ask the defendants whether they were willing to pay a sum of money for full and final settlement without admission of liability.

The offer that came back was £10,000, a figure the claimant described as ‘chicken feed’. But the firm and barrister insisted the decision to settle at £12,500 was given ‘without duress and with an opportunity of full and frank explanation’.

In Dunhill v W Brook And Co & Anor, Laing accepted that the claimant felt aggrieved but also accepted that neither Marsh nor Crossley put pressure on her.

‘If [Crossley] had thought that there were prospects of success, he would have fought the trial,’ said the judge. ‘As it was, it was his professional duty to point out what he saw as the difficulties in her case.’

It was explained to the client outside court that she might end up with nothing and the ‘appreciable risks’ of trial were spelt out.

‘He had to take a view about the value of the claim; and it was better for the claimant to get something than to get nothing at all,’ said Laing. ‘Given the risk that the claimant could lose, Mr Crossley was not negligent in taking into account, when agreeing a sum to settle the claim, that a significant finding of contributory negligence was likely.’

Laing said that if Crossley was not negligent, then neither was the instructing firm. Claims against both defendants were dismissed.

Readers' comments (3)

  • 'If Mr Crossley had been negligent, then this would have been an act of negligence, however I find that he wouldn't have been negligent, and therefore there is no negligence'.

    Nice.

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  • Could the client now sue those who said she should sue those who represented her when she sued the original defendant? This could be the legal equivalent of The Mousetrap, a show that never ends...

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  • This one has been rumbling on for many years already, David. Someone has taken silk, in no small part due to their involvement in this many appeals in this case.

    An earlier success for the Claimant was a decision that as she lacked capacity at the time of the original settlement, there was no procedurally valid conclusion to that litigation, with the result that it remained live. Last year, it was compromised on a 55%:45% liability split in her favour.

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