Yardley v Challinors Lyon Clark (A Firm) & Anor

A solicitor is not negligent merely because a client later considers counsel’s advice to have been wrong. Where the legal issue is difficult and uncertain, the solicitor may reasonably rely on counsel’s considered opinion, provided there is no reason to reject it, such as advice that is plainly wrong. A claimant’s dissatisfaction with a public authority, or failure of the claimant’s own efforts to obtain a remedy, does not establish negligence by the solicitor. Permission to appeal may be refused where the lower court was entitled to conclude that the claim had no reasonable prospect of success.

Mr Yardley brought proceedings against two firms of solicitors, alleging that they negligently failed to pursue a claim against Birmingham City Council, including a possible claim for misfeasance in public office. Counsel had advised that the proposed claim had little or no realistic prospect of success and that judicial review was likely out of time. His Honour Judge Alan Taylor dismissed the professional-negligence claim after a five-day hearing, concluding that it had no reasonable prospect of success. Mr Yardley sought permission to appeal, challenging the dismissal, the solicitors’ reliance on counsel’s advice, and their alleged failure to follow his instructions.

Application for permission to appeal refused. Lord Justice Aldous held that the proposed grounds disclosed no real prospect of success.

1. The judge was entitled to dismiss the claim at that stage. Having concluded that Mr Yardley had not made out his case and that it had no reasonable prospect of succeeding, there was no requirement to put the defendants to an election.
2. The allegation that Mr Breen was negligent for failing to identify an error in counsel’s advice was unsustainable. The law on misfeasance in public office was difficult and its application was not easy to predict. Counsel had considered the relevant legal issues, advised that there was no viable claim for damages, and explained the limited position concerning judicial review. The solicitor could not be faulted for obtaining and acting upon that advice. There was no evidence that the advice was so plainly wrong that it should have been rejected.
3. The further allegation that the solicitors had failed to act on their client’s instructions was unsupported by evidence. The material showed that Mr Breen had consistently considered the risks of litigation and acted in Mr Yardley’s interests. The fact that the Council had allegedly acted wrongly, and that Mr Yardley’s correspondence, Ombudsman complaint and proceedings had failed, did not establish professional negligence.
4. The possibility of judicial review had been considered on more than one occasion, and the advice given was appropriate in the circumstances. Nothing in the papers suggested that the negligence claim against the solicitors had any real prospect of success.

The formal order was that the application for permission to appeal was refused.

• Birmingham County Court: His Honour Judge Alan Taylor dismissed Mr Yardley’s claim for damages for professional negligence against the two solicitor firms, concluding that it had no reasonable prospect of success.
• Court of Appeal (Civil Division): Lord Justice Aldous refused permission to appeal.