Solicitors acting in an unsuccessful case did not act negligently when they provided counsel’s views orally rather than in writing, a court has ruled.
Dan Squires QC, sitting as a deputy High Court judge in Mervyn Lambert Plant Ltd & Anor v Knights Solicitors, said the Kent firm had ‘passed on the substance’ of what counsel had advised and so was not in breach of contract.
The firm’s former clients had made the claim for professional negligence in relation to a failed judicial review over a planning decision by South Norfolk Council. They argued that the case had been ‘doomed from the outset’ and that had they been properly advised, and in particular told of counsel’s views, they would never have pursued it. They sought to recover the majority of fees paid to the firm.
Squires said that the fact a litigant ultimately failed in their claim did not mean that any earlier views of the solicitors expressing confidence in the prospects of the case were negligent.
‘The fact that a solicitor may have believed a court would reach a particular conclusion, and was subsequently proven wrong, does not mean, of itself, the solicitor’s views were ones no reasonably competent solicitor could have held,’ he said. The judge added that it was not sufficient to establish negligence to say that other lawyers might have reached a different view.
The court heard that counsel with considerable experience in planning matters was instructed in October 2016. Counsel’s email shortly after stated that there were ‘a number of legal difficulties’ with the JR. The firm accepted it did not forward counsel’s email to the client, but stated that it ‘adequately relayed [his] advice’ in various exchanges. In particular, it was submitted that counsel’s views were passed on during a car journey to a council planning committee meeting.
The judge said the firm most likely did pass on the substance of counsel’s views about the case, and while with hindsight it might have been better to forward the email, it did not fall outside the conduct of a reasonably competent solicitor to have communicated orally.
Squires added: ‘Some solicitors may have chosen to forward every such email to their client. Others may not and I do not accept that no reasonably competent solicitor would have acted as [senior partner] Mr Knight did.’
It was submitted by the claimant that the firm’s advice had been overly ‘bullish’ or encouraging, but the judge said it was inappropriate to take particular statements out of context and needed to be taken alongside general warnings he gave about the difficulty of predicting the outcome of the case.