Court of Appeal warns advocates of negligence risk

Advocates were last week given a sharp warning by the Court of Appeal of the standards expected of them after a barrister who failed to keep up with procedural law was found to be negligent.

In Moy v Pettman Smith and Jacqueline Perry, the court ruled that Ms Perry, a barrister, was negligent in telling her client that there was a good chance she could have extra medical evidence accepted by the judge.

Lord Justice Brooke said that while the exercise of reasonable care by an advocate does not extend to knowledge of unreported decisions, key cases where such evidence was disallowed were referred to in the County Court Practice 1997 and had given Ms Perry 'all the leads she needed when she came to assess the prospect of getting the crucial evidence accepted'.

The claimant, David Moy, had sued his health authority for negligence after an operation to reset his broken leg.

He was advised by Ms Perry to decline a 150,000 compensation offer on the morning of the trial as she believed the judge would accept the new evidence.

After it was disallowed, Mr Moy accepted a lower sum of 120,000.

Mr Moy's solicitors, London firm Pettman Smith, were found 100% responsible at first instance owing to their failure to get to grips with the case, with damages set at 210,000.

The firm and Mr Moy appealed.

The Court of Appeal found Ms Perry 25% responsible and liable to pay 52,500.

Lord Justice Brooke said it would be a disaster if advocates had to start hedging their opinions to avoid negligence claims.

But he added: 'If [advocates] have fallen below the standard of care reasonably to be expected of them when formulating their opinion, whether their negligence relates to questions of fact or questions of law (including procedural law), they will now be as vulnerable to a finding of professional negligence as any other professional man or woman.'

The House of Lords ended advocates' immunity from negligence actions in July 2000.

Victoria MacCallum