Standard of care

The recent case of Dunhill v W Brook & Co and Crossley [2016] EWHC 165 (QB) provides helpful guidance on the standard of care when assessing cases and advising clients.

In 1999, the claimant, Ms Dunhill, sustained injuries as a result of being knocked over by a motorbike. She pursued the motorcyclist for damages and was represented by solicitors, W Brook & Co, and counsel, Mr Crossley. On the morning of the trial, the key witness in support of the claimant's case was not in attendance. Crossley advised the claimant to settle the claim for £12,500 plus costs. The trial was attended by a trainee from the first defendant firm, who was unable to advise and followed counsel's advice.

The claimant then reopened the litigation on the basis that she lacked the required mental capacity to consent to a settlement. The case was allowed to proceed to trial. Baroness Hale described the initial settlement as a 'gross undervaluation' and, in 2015, the court awarded the claimant 55 per cent of her claim. Dunhill then brought a claim against her former solicitors and counsel for negligently managing her case and settling at an undervalue.

Context of advice

The claims against both defendants were dismissed. Mrs Justice Laing stated that, as per Saif Ali v Sidney Mitchell & Co [1980] AC 198, there was a difference between an error 'that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the reasonable courses of action that in the circumstances reasonably competent members of the profession might have chosen to take'.

The fact that advice to settle is given at the door of the court is an important part of the context for an assessment of whether the duty of care has been breached, and 'in which it may be very difficult to categorise the advocate's decision as negligent even if later events proved it to have been wrong' (VG v Denise Kingsmill [2001] EWCA Civ 934).

The court considered that the way the case eventually played out could not, in this case, be deduced from other case law other, than in general terms, such that it was far from certain that the claimant would succeed on liability. Further, how the case would have been decided by the judge if it had been fought is not a question which has a scientifically right - or wrong - answer.

The first imponderable was how the witness evidence could have come across. Laing J considered that counsel for the claimant understated the potential damage to her underlying case that could be caused by the evidence of the motorcyclist's independent witnesses, if they came up to proof. Without the key witness's evidence, Crossley's view that there was a risk that the claimant would lose altogether was not negligent.

The second imponderable was that different judges could have reached a different view on liability and quantum on that evidence. Similarly, different barristers might come to a different view about how the evidence might be received and analysed by a judge without being negligent. The court considered counsel's preparation for trial and found that he took proper steps to prepare and gave his advice on the basis of the evidence he had before him.

Independent judgement

In relation to the solicitors, the court rejected the principle that a lower standard of care should apply for a trainee as opposed to a qualified solicitor. Laing J stated that a solicitor is not liable in negligence if he acts reasonably on the advice of appropriate counsel who has been properly instructed, but a solicitor must exercise his own independent judgement and if he considers that counsel's advice is 'obviously or glaringly wrong' he should reject it. In addition, if counsel was not negligent, then there was no scope for the solicitors to be found negligent.

This is a helpful decision for practitioners involved in settlements. The case highlights the importance of the factual matrix and context: the decision emphasises that context is material in assessing the standard of care provided. However, practitioners should take heed of the following:

• Solicitors must take a view on each case as to the appropriate level of solicitor to attend;

• While this did not affect the outcome, the circumstances of the settlement would have been more persuasive had a full attendance note been produced. Practitioners should ensure that they keep their own notes (rather than delegate this task to a trainee) when they give crucial advice, whatever the situation;

• It is critical that practitioners carry out a measured consideration of the legal and factual aspects at or before settlement and ensure that the client is fully informed; and

• Solicitors should not blindly follow counsel's advice:
  they need to show that they have also considered all the facts. SJ

Eleanor Kilner is a solicitor in the professional risk team at Weightmans