Firm fails in counterclaim against RTA client after negligence case dismissed

A firm has failed in its appeal against the dismissal of its counterclaim after its evidence was found ‘not sufficiently compelling to justify’ allegations it was misled by a former client.

Cheshire-based firm Harrison Bryce Solicitors Limited was instructed by Abdul Shamaj after his car was involved in a collision with another vehicle. The firm accepted instructions on a conditional fee basis.

While preparing for trial, Harrison Bryce wrote to Shamaj in March 2022 recording its belief that the accident was not genuine and stating that any agreements had been terminated. The trial had been listed for May 2022 with directions that the trial fee be paid no later than April 2022. The trial fee was not paid.

Shamaj sued the firm for professional negligence. The firm counterclaimed for its outstanding fees and disbursements. Shamaj’s claim was dismissed by the recorder at Manchester County Court, as was the firm’s counterclaim. The firm appealed.

In Harrison Bryce Solicitors Limited v Abdul Shamaj, Mrs Justice Dias said: ‘It is important to note that it is not sufficient for Harrison Bryce to plead simply that it was misled: the retainer and conditional fee agreement require it to have been deliberately misled. In other words, there must have been something tantamount to fraud. It is certainly arguable that the defence and counterclaim falls some way short of the properly particularised pleading that would be expected for a such claim.’

She added that if the firm chooses to make an allegation that it was deliberately misled, ‘it must prove it’.

The judge acknowledged that though it was ‘perhaps slightly unfortunate that the recorder’s reasoning was not set out more fully’, he had correctly concluded ‘that there was insufficient evidence before him that the firm had been misled. She added: ‘All the relevant material to which I have been referred was before the recorder who evidently considered it with some care. Having sat through four days of the trial and had ample opportunity to observe Mr Shamaj and the other witnesses, he was by far the person best placed to assess the evidence and decide whether Harrison Bryce had been misled or not.'

The recorder's conclusion 'is a finding of fact with which I would in any event have been loath to interfere'.