Fieldings Porter (Solicitors) v Derby

In a professional negligence claim against solicitors, withdrawal shortly before trial is not negligent where there is good cause, the court approves the withdrawal, and reasonable notice is given. Procedural shortcomings do not justify damages unless they caused the loss relied on. A failure to discuss insurance cover is likewise non-compensable where the available cover would have required the client to follow advice which she refused. Permission to appeal should be refused where the lower court’s findings leave no prospect of a successful appeal.

The applicant solicitors sought payment of their fees from Mrs Derby after acting for her in a personal injury claim. Mrs Derby had refused advice to accept payments into court and had instructed the solicitors not to disclose adverse medical evidence. The solicitors obtained the court’s permission to come off the record shortly before trial. Her underlying claim was later struck out when an adjournment was refused.

On 30 May 2002, His Honour Judge Adams entered judgment for the solicitors for £8,000, plus interest of £556.71, and dismissed Mrs Derby’s counterclaim alleging professional negligence. She applied to the Court of Appeal for permission to appeal. The central issues were whether the solicitors’ withdrawal, other procedural failings, or failure to discuss insurance had caused recoverable loss.

Application dismissed. Lord Justice Ward concluded that there was no prospect of successfully appealing the county court’s decision.

1. The solicitors had good cause to cease acting. Their client refused the advice being given and refused permission to disclose an adverse medical expert’s letter. The court approved their application to come off the record, and the notice given within the tight timetable was reasonable. Although withdrawal shortly before trial created serious difficulties, it was neither wrongful nor negligent.
2. The county court had criticised several matters, including the absence of a client care statement, failure to serve the client’s witness statement, the inclusion of previously untrue assertions in an earlier draft, and a possible failure to deliver the documents bundle to the court. Those matters did not cause the refusal of an adjournment or the loss claimed. Even if they amounted to negligence, they had no causative effect and therefore supported no damages.
3. The complaint about failure to discuss insurance cover was well founded, but it caused no loss. Any relevant insurance would have required Mrs Derby to accept the advice which she had refused.
4. The county court’s reduction of the solicitors’ fees from more than £11,000 to £8,000 was described as a generous response to the criticisms made. The application was dismissed with no order for costs. Because the judgment was given in Mrs Derby’s absence, she retained a right to apply to have it set aside and the matter reinstated so that she could appear and argue it.

• Court of Appeal (Civil Division): [2002] EWCA Civ 1365 — Lord Justice Ward dismissed the application for permission to appeal, with no order for costs.
• Leeds County Court: On 30 May 2002, His Honour Judge Adams entered judgment for the solicitors for £8,000 plus £556.71 interest and dismissed Mrs Derby’s professional negligence counterclaim.