Practice and Procedure


PUBLISHED September 25, 2003

Where a first firm of solicitors allegedly failed to prosecute proceedings promptly and a second firm and counsel advised the claimant to settle because of the risk of being struck out, the two firms could be liable in respect of the same damage for the purposes of contribution proceedings between them.Applications by second and third defendants for summary judgment on contribution claims against them by the first defendant. The claimant ('L') joined the army in 1976 as a private at the age of 18. By 1993 he was a sergeant and acting warrant officer and hoped for a late entry commission. His commanding officer then prepared reports concluding that L could not be recommended for promotion. L's case was that those reports became common knowledge and made his position untenable. He left the army in 1994. He had consulted the first defendant solicitors ('KS') in 1993 and in 1994 counsel advised that L had more than a reasonable chance of proving the falsity of the reports and malice and of showing that he had suffered damage as a consequence. Proceedings were issued against the Ministry of Defence in March 1995 but no steps were taken in the action during the next few years. In 1999 counsel ('CA') advised that an application to strike out was inevitable and that the prospects of successfully resisting such an application were no more than ten per cent. L terminated the instructions of KS and in 2000 retained other solicitors ('W'). CA reiterated her previous advice. L then settled his claim against the Ministry of Defence for ?10,000 and costs. In 2001 L commenced proceedings against KS for professional negligence claiming damages for the lost chance of succeeding in the original claim for over £240,000. KS issued a Part 20 claim against W which claimed against CA. L then added W and CA as second and third defendants. W and CA applied for summary judgment in respect of the claims against them on the basis that KS had no reasonable prospect of establishing a successful claim under the Civil Liability (Contribution) Act 1978 since W and CA could not be liable for the "same damage" as KS. KS caused damage to the original action by reason of delay and the consequential risk of striking out, whereas the alleged negligence of W and CA lay in undervaluing the residual value of the action inherited from KS.HELD: (1) An overlapping element of damage for which both W, CA and KS were liable to L was at least capable of bringing a claim for contribution within the 1978 Act (Royal Brompton Hospital NHS Trust v Hammond (2002) 1 WLR 1397). For there to be contribution, the would be contributors had to be subject to a common shared liability and there had to be one loss capable of being apportioned among those liable. (2) Applying Hatton v Chafes (2003) PNLR 489, it could not be said with sufficient confidence for the purposes of the summary judgment applications that the loss of the right to proceed further with the action had been suffered prior to KS ceasing to act. It could realistically be argued that the combined effect of the negligence of KS and of W and CA caused the damage to L, namely the loss of the chance of successfully pursuing his action to trial (Rahman v Arearose Ltd (2001) QB 351).Applications dismissed.

[2003] EWHC 1559 (QB)