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Solicitors evidence: attendance note

Wellesley Partners LLP v Withers LLP
11.3.14
High Court

Facts

The Claimant partnership was concerned with the business of head-hunting within the investment banking sector. In 2008, the Defendant solicitors were instructed by the Claimant in relation to the admission of a number of new partners into the partnership, including Addax Bank BSC (“Addax”). The Claimant therefore instructed the Defendant to draft a new LLP Agreement.

It was agreed between the Claimant and Addax that Addax should have an option to withdraw half of its capital contribution from the partnership. The Agreement completed by the Defendant, on 14 May 2008, included an option for Addax to withdraw half its capital contribution, exercisable at any time within the first 41 months of the Agreement.

Addax subsequently exercised the option to withdraw half its capital in May 2009.

Following the withdrawal of capital by Addax, the Claimant alleged that it had in fact instructed the Defendant to include an option for Addax to withdraw half its capital contribution after the first 42 months (rather than during the first 41 months) of the Agreement.

The Defendant defended the claim on the basis that the alteration to the draft Agreement was made in light of instructions received from the Claimant, by telephone on 17 April 2008.

Additionally, the Claimant raised three further claims of negligence against the Defendant, regarding the drafting of the Agreement and advice subsequently provided by the Defendant in February 2009 when Addax intimated that it was considering exercising the option in the Agreement.

Findings

With regards to the main allegation, the Court ruled that the Defendant had made the amendment to the draft Agreement without instructions to do so and the allegation was therefore upheld. The Court did, however, dismiss the three further allegations of negligence advanced by the Claimant.

The Court considered the degree of weight which should be placed on the Defendant’s failure to make an attendance note in relation to the telephone conversation on 17 April 2008, wherein it was alleged by the Defendant that the Claimant had provided instructions to amend the Agreement. In particular, the Court rejected the argument that the Claimant’s evidence should necessarily be preferred in circumstances where the solicitor had failed to make an attendance note. Specifically, Mr Justice Nugee commented, “It is of course good practice to make attendance notes, precisely because the absence of them makes it more difficult to establish what instructions and advice were given, but I do not accept that the absence of an attendance note in some way counts against the solicitor in forming a view as to where the truth lies”.

Whilst, on balance, on the facts of this case, the Court did prefer the Claimant’s evidence, the Court considered that previous judicial comment in Middleton v Steeds Hudson [1998], where it was stated “The absence of any written record or letter supporting the defendant’s account of the meeting is clearly cogent evidence in support of the Plaintiff’s case”, did not create any general principle, but was simply a comment on the facts of that particular case. The Court rejected similar arguments that such a principle was laid down in Paddenv Bevan Ashford [2013].

Comment

This decision confirms that the lack of documentary evidence, in particular the failure by a Defendant professional to create an attendance note, does not, in itself, mean that the Claimant’s evidence should be preferred. Each case will need to be considered in light of the particular facts and witness evidence available.

However, whilst this case may provide some assistance when defending a professional already facing a claim of negligence, it will, of course, inevitably add far more weight to a defendant’s case, if the advice or instruction has been clearly recorded in a contemporaneous document. As noted by the Court in this case, it remains good practice to make attendance notes, in order to easily establish and evidence what instructions have been received and what advice has been given.

Contact

Alexia Drew, Senior Solicitor, DWF Fishburns on 0117 301 7395 or Simon Mason, Partner, DWF Fishburns on 0117 301 7392

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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