Practice and Procedure


PUBLISHED December 18, 2003

A barrister was not negligent in advising the settlement of a claim for a fraction of its originally pleaded value where an application to strike out was reasonably anticipated and where the prospects of the success of such an action were reasonably perceived to be almost inevitable.The claimants, (L) and (K), sought damages for professional negligence from the defendant solicitors (W) and the defendant barrister (C). L consulted K and brought an action against his former employer, the Ministry of Defence (MOD), claiming malicious falsehood in respect of confidential reports about his performance and promotion prospects. L asserted that in consequence he had no option but to leave the army, and claimed damages of some GBP 240,000 reflecting alleged loss of career earnings and pension entitlement. Some four years later, in 1999, C was instructed by K on behalf of L. Few further steps had been taken in relation to L's claim against the MOD other than the filing of pleadings and requests for further and better particulars. C advised settlement, considering that any application by the MOD to strike out the claim would have an 90-95 per cent prospect of success. A year later L instructed W to take over from K. C again advised that, should such an application be made by the MOD, the claim was almost certain to be struck out by reason of delay. Thereafter the MOD unequivocally stated that an application to strike out would be made. It later proposed an offer in settlement of GBP 10,000 plus costs. W and C were of the view that the offer should be accepted and L agreed. L then brought an action against K alleging negligence by reason of its dilatory conduct of his claim against the MOD, claiming damages by reference to the loss of the chance of successfully winning the case at trial. Before trial K settled with L in the sum of GBP 215,000, and at trial the particulars of claim were amended to name K as a claimant with L. The amended claim was that W and C, in advising settlement for GBP 10,000, were responsible for all of L's loss, or alternatively that they were liable to make a contribution to the settlement sum agreed between K and L. L submitted that (1) C's advice of 1999 to settle was plainly wrong in that she should have advised that the action would not have been struck out as the putative limitation period had not expired at the time; (2) to give firm advice a year later to settle at GBP 10,000 plus costs connoted that either the prospects were negligible or that the claim could not be maintained; (3) C should not have advised settlement at all at that time, when an application to strike out had not been made.HELD: The advice, given by C and ultimately shared by W, that L's prospects of failure on an application to strike out his action were 90-95% or "almost inevitable" were within the range of advice that, in the circumstances as they presented themselves at the time, could reasonably and properly have been given. There was an abundance of reasons justifying W and C in their advice not only to settle but to settle at GBP 10,000 plus costs: (i) five years after the issue of the writ the action had not been set down and was nowhere near ready for trial; (ii) the great part of the delay occurring was due to the negligence of K or L or both; (iii) the putative limitation period had expired; (iv) prejudice and abuse were capable of being inferred; (v) the court would have been influenced by the fact that an accusation of malice was a most serious one; and (vi) there were serious concerns that L would not be able to continue to obtain legal aid for the action on means grounds alone, and if legal aid had been withdrawn that would almost certainly have been the end of the action. This was an exercise of judgment, and the identified factors gave rise to strong grounds for belief that the application would be struck out. It was wholly unsurprising that W and C expected the MOD to make an application to strike out, and it would be hard to see any convincing legal or commercial argument for it not to do so. In the circumstances neither W nor C was negligent.Judgment for defendants.

[2003] EWHC 3151 (QB)