Ruling on barrister advice

The High Court in London has laid down the circumstances under which solicitors can be found negligent for following counsels advice if it proves to be incorrect.

The judgment in Bond & Ors v Livingston & Co last month held that irrespective of counsels advice, a solicitor will be liable where any negligence relates to matters he should reasonably be expected to know.

In the case, the claim involved a breach of contract, including a claim for personal injury.

The defendant solicitor had certain misgivings about the correct limitation period and raised the point with counsel, who gave incorrect advice.

The judge said a solicitor specialising in personal injury work should have known section 11 of the Limitation Act 1980, which states that in such circumstances the period is three and not six years.

Case law states that while it is not the duty of a solicitor to know the contents of every statute of the realm, there are some statutes which it is his duty to know.

Jonathan Ross, a professional negligence partner at City firm Denton Wilde Sapte, said the judge laid out three principles: that a solicitor is not entitled to rely blindly and with no mind of his own on counsels views; that while he can rely upon the advice, he must exercise his own independent judgment and, if he reasonably thinks counsels advice is glaringly wrong, it is his duty to reject it; and the more specialist the nature of the advice from the counsel, the more reasonable it is likely to be for a solicitor to accept it and act on it.

The extent to which a solicitor can rely on counsel is not only relevant to claims for negligence but is particularly relevant to applications for wasted costs against solicitors, Mr Ross added.David Sullivan of City firm Kennedys, who acted for the claimant, said: Principles have been reinforced by this case, although I dont think anything has been changed because of it.

It serves as a timely reminder to solicitors of their duties and obligations.Manchester firm James Chapman & Co acted for the defendant firm.Andrew Towler