Griffin v Kingsmill & Ors

Lawyers advising on the prospects of personal injury litigation must distinguish a permissible error of judgment from advice which no reasonably competent practitioner could give. Where opposing eyewitness accounts create a straightforward factual conflict at an early stage, cogent reasons are required before the claimant’s evidence can be rejected and the claim described as having no reasonable prospect of success.

Clear and robust advice remains desirable, but it must be based on proper analysis. Material evidence apparently inconsistent with counsel’s conclusion may require an explanation. In a loss-of-chance claim involving the hypothetical conduct of third parties, causation is established by proving a real or substantial, rather than speculative, chance. The value of that chance is then assessed as damages.

A severely injured child settled her road-accident claim for £50,000 after her solicitor and junior counsel advised that she had no reasonable prospect of establishing liability. The settlement was approved on her behalf, although important documents were not placed before the master.

Buckley J dismissed her subsequent professional-negligence claim against the solicitor, her successor firm and counsel. He nevertheless found that properly advised proceedings would have produced a better settlement or a successful trial, and assessed the lost chance at two-thirds of the claim’s full value. The claimant appealed against the finding of no negligence and the valuation of the chance. The defendants challenged a late pleading amendment, causation and the valuation.

The central questions were whether the advice fell outside the range open to reasonably competent personal injury practitioners and, if so, how the lost chance should be valued.

1. Appeal allowed in part. Sir Murray Stuart Smith, with whom Kay and Schiemann LJJ agreed, held that both counsel and the solicitor had been negligent. The finding that the action was an abuse of process was also discharged. The lost chance was valued at 80% of the underlying claim’s full value.

2. The governing standard was that stated in Saif Ali v Sidney Mitchell & Co [1980] AC 198. A professional is not liable merely because an exercise of judgment proves mistaken. Liability arises where the error was one which no reasonably well-informed and competent practitioner could have made. Greater latitude may be appropriate for urgent advocacy or exceptionally complex advice, but this was a straightforward evidential conflict which allowed careful consideration.

3. Counsel had no valid reason for rejecting the grandfather’s evidence. The supposed point of impact and the momentary obstruction of his view were consistent with his essential account that the child had waited at the roadside for an appreciable time. The driver’s inconsistent and vague accounts also required critical assessment. Even on the driver’s account, counsel should have considered whether she had sufficient time to brake, steer, stop or sound a warning while the child crossed the grass verge.

4. The solicitor’s recommendation was likewise negligent. It rested on an unjustified assessment of the two witnesses and omitted the alternative case arising from the driver’s own account. The family’s limited means did not justify understating the prospects; their role was to decide what financial risk to accept after receiving competent advice.

5. Kay LJ added that the decision did not discourage robust advice or require counsel to discuss every item of evidence. Counsel should refer to the evidence needed to justify conclusions on material matters. Where evidence apparently contradicts the conclusion, failure to explain its rejection may show that it received insufficient or inappropriate weight. Schiemann LJ agreed and emphasised that the available material placed the claim well above the negligible-prospect end of the spectrum.

6. Applying Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, causation required a real or substantial chance, not proof that the relevant third parties would probably have produced the favourable outcome. The judge had necessarily found such a chance by valuing it at two-thirds. Proper preparation would probably have produced a successful claim, but allowance remained appropriate for settlement, contributory-negligence and general litigation risks. Judgment was therefore entered on the basis of 80% of full value, with costs. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 934, unanimously allowed the appeal in part, discharged the findings that the action was an abuse of process and that the defendants were not negligent, and substituted a valuation of 80% of the underlying claim’s full value.
2. Queen’s Bench Division: Buckley J dismissed the professional-negligence claim on 20 February 1998. He found no negligence and treated the proceedings as an abuse of process, while assessing the claimant’s lost chance at two-thirds if liability were established.