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Solicitors' negligence for sending a Trainee to trial revisited. Court of Appeal upholds no liability for door of Court settlement in Dunhill v Brook

Dunhill v W Brook and Co and Crossley [2018] EWCA Civ 505

The Court of Appeal has dismissed a claim for professional negligence brought by Mrs Dunhill against her former solicitors and counsel for the alleged under-settlement of a personal injury claim. 

Adedotun Olunowo considers the main points that arise from this judgment, which will be welcomed by defendant solicitors, barristers and their professional indemnity insurers in so far as it reflects the pressures of door-of-court settlements. The decision is also interesting to the extent it provides guidance on the circumstances in which it is appropriate to send a trainee solicitor to accompany a properly instructed barrister to trial.  A link to our article on the first instance decision can be found here.

Background

Mrs Dunhill instructed W Brook and Co ("Brook") to pursue an RTA claim against a motorcyclist in respect of head injuries and subsequent "psychological problems" that she sustained after a road traffic accident in the summer of 1999.  The total value of the claim was initially estimated at £40,000, however it was ultimately settled on a full and final basis for £12,500 on the advice of Counsel (which the claimant "albeit hesitantly" accepted) after one of Mrs Dunhill's key witnesses failed to attend court.  

Brook had sent a trainee to attend court; Counsel had to decide how to proceed with the trial.  The absence of a key witness constituted a significant setback in relation to the prospects of success in the litigation.   With the real risk of the claim failing in its entirety, the claim was compromised for the lump sum representing 31.25% damages available to the Mrs Dunhill at the time.

Mrs Dunhill subsequently instructed new solicitors and sought to re-open the RTA claim, claiming damages of £800,000.  She succeeded after the Supreme Court found that the she had lacked capacity at the time of the settlement due to the head injury alleged to have arisen from her original accident.  Mrs Dunhill later achieved a settlement representing 55% of the value of her personal injury claim, which was far in excess of the assessment of £40,000 originally placed on the claim by Brook.

First Instance Decision

Mrs Dunhill subsequently brought proceedings alleging negligence against Brook and Counsel who, she claimed, had settled her personal injury claim at a value much lower than it should have had. At first instance, Elisabeth Laing J approached the case on the basis that the potential liability of Brook was parasitic on the liability of Counsel. She therefore posed three questions, first,  had Counsel been negligent in his advice to settle for £12,500; secondly, if so, whether Brook had discharged their duty by sending a trainee to court; and thirdly whether Brook were reasonably entitled to rely on the advice of Counsel with regards to the settlement.   Elisabeth Laing J found that in the circumstances Counsel had not been negligent based on the material known to him at the time; and, accordingly, Brook were therefore not negligent for relying on him. The fact that the settlement had been reached at the court door was important in judging the conduct of counsel and solicitors. 

Elisabeth Laing J focused on the fact that a trainee solicitor (six months into training) had been sent to court, and that, on her assessment, the trainee was out of his depth through no fault of his own.  Notably she stated:

" A solicitor is not liable in negligence if he acts on the advice of appropriate counsel who has been properly instructed. But a solicitor must not be passive, and must exercise his own independent judgment of the case before him. If he considers that Counsel's advice is 'obviously and glaringly wrong' it his duty to speak up".

On this footing, if Counsel had indeed made a blatant error, not spotted by the trainee solicitor (who at the time did not have the sufficient experience or knowledge to detect the error), and a case of negligence had been established against Counsel, it would have also generated liability against the solicitors for sending a trainee to trial.

Court of appeal

The Court of Appeal declined to interfere with Elisabeth Laing J's findings, and dismissed the appeal in its entirety, concluding that the claim could not have succeed against the solicitors if it had failed against Counsel.  Sir Brian Levision, delivering the leading judgment, nevertheless criticised Counsel for failing to contact the partner responsible for the case to inform him of the developments at trial in light of the trainee's limited experience. 

Significantly, it is worthwhile noting that the Court of Appeal did find merit in the proposition that a solicitor's duty of care is fulfilled in permitting a trainee to accompany a properly instructed Counsel to trial, provided that he or she has instructions that a solicitor (preferably who has conduct of the case) is available if the need arises.

Comment

The Court of Appeal judgment serves a reminder of the potential difficulty in establishing liability against solicitors and counsel who are doing their best in challenging circumstances.  Also in keeping with established principles about the limits on appeals and the need for finality of litigation, the Court was very reluctant to interfere with the first instance decision although at points the Court seemed unhappy with aspects of it.

It considers the standard of care owed by a firm of solicitors to its clients when delegating work to trainee solicitors; a standard that does not vary due to the level of experience afforded to the practitioner.

Whilst the decision highlights a potentially interesting line of defence for solicitors delegating work to much junior fee earners, solicitors should nevertheless continue to take great care in balancing the need to give trainee solicitors an appropriate level of training, responsibility and exposure, while considering whether it is appropriate to send an inexperienced trainee solicitor to court in the event there is a need to give advice as a matter of urgency.

Contact

For more information please contact Adedotun Olunowo, Trainee Solicitor Adedotun.Olunowo@dwf.law or Jonathan Hyde, Director Jonathan.Hyde@dwf.law

 

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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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