Brealey v Prescotts (A Firm)

A solicitor advising on a possible appeal must take reasonable care to explain relevant legal-aid opportunities. The duty requires careful judgment. The solicitor must avoid encouraging litigation which may not serve the client’s interests or which the client does not wish to pursue, while making available options sufficiently clear. Whether the solicitor should have done more is fact-sensitive. Where the first-instance judge accepts that the client knew of legal aid, was not deterred by funding, and chose not to appeal for other reasons, the Court of Appeal will not interfere if that conclusion was legally open.

The claimant had received an ancillary-relief order requiring him to transfer his interest in the matrimonial home to his former wife for approximately £13,500. He alleged that his solicitors were negligent because they failed to advise him adequately about legal aid for a possible appeal. The appeal was not pursued immediately, and a later application for legal aid was made out of time. The Birmingham County Court dismissed the negligence claim on the evidence. The claimant sought permission to appeal, raising whether the solicitors should have explained more clearly that legal aid might fund an appeal.

1. Application refused. The Court of Appeal refused permission to appeal from the judgment of His Honour Judge Charles Harris QC. There was no order for costs.
2. A failure to advise a client of rights under the Legal Aid Act may amount to unbefitting professional conduct and may support a negligence claim. A solicitor must, however, exercise careful judgment. The solicitor must balance the need not to encourage further litigation which may not be in the client’s interests, or which the client does not genuinely wish to pursue, against the need to explain relevant opportunities clearly.
3. The judge was entitled to accept the evidence of the solicitor’s representative. On that evidence, the claimant knew that an appeal would involve cost, had indicated that funding was available, and was not deterred by funding. His decision not to appeal resulted from distress, dissatisfaction with the legal process and a hope of resolving his financial difficulties. It was therefore legally open to the judge to conclude that the solicitors were not negligent in failing to do more.
4. The possibility that an appeal might have produced a few thousand pounds more did not alter the result. Even if an appeal had proceeded, the extent of any success and the person who would ultimately benefit were uncertain. Those matters were not the basis of the judge’s decision.
5. Because the judgment below was legally open to the judge, the Court of Appeal had no power to interfere with it.

• Birmingham County Court: His Honour Judge Charles Harris QC dismissed the claimant’s negligence claim on 6 March 2001.
• Court of Appeal (Civil Division): permission to appeal was refused on 9 July 2001: [2001] EWCA Civ 1449. There was no order for costs.