Shirley & Ors v D J Freeman (A Firm) & Anor

In professional negligence claims against legal advisers, liability depends on whether the advice or decision fell outside the range of decisions that a reasonably competent and careful practitioner could make. A barrister is not negligent merely because a legal point was arguable, if a reasonably competent barrister could properly decide not to pursue it. Solicitors may rely on counsel’s judgment where the circumstances reasonably justify that course. A presumption that land between fences forms part of a highway arises only where the fences are shown to relate to the highway, and it may be rebutted by contrary evidence.

The claimants brought professional negligence proceedings against their former solicitors and counsel. They alleged that the defendants had negligently failed to plead and pursue an argument that land between their properties and a public road formed part of the highway.

Ferris J entered summary judgment for the defendants under CPR 24.2(a)(i), holding that the claimants had no real prospect of success. The claimants sought permission to appeal and an extension of time. The central issues were whether the highway argument had sufficient merit to support a negligence claim and whether counsel and solicitors could properly be criticised for not pursuing it.

1. Applications dismissed. Permission to appeal was refused, and the application for an extension of time was also refused. The proposed appeal had no reasonable prospect of succeeding.
2. Professional negligence is assessed by asking whether the legal adviser’s conduct fell outside the range of decisions that a reasonably careful and skilled practitioner might take in the circumstances. The formulation drawn from McFarlane v Wilkinson [1997] PNLR 578 was appropriate. An arguable point need not be pleaded or pursued if competent professional judgment indicates that it is likely to fail.
3. The suggested highway argument was weak. The width of a highway is a question of fact, depending on dedication or presumed dedication. Where a highway runs between fences, the whole width between them is presumed to have been dedicated only if the fences are shown to have been erected by reference to the highway. There is no general presumption that fences separate highway land from other land. This was explained in Hale v Norfolk County Council, reported in The Times on 19 December 2000, and the presumption is readily rebuttable, as illustrated by Neeld v Hendon Urban District Council (1899) 81 LT 405.
4. The evidence was substantially inconsistent with highway status. The land had been registered as common land, had not apparently been maintained by the highway authority, had been used for vehicle parking, and showed little evidence of public use as a right of way. Registration was not conclusive under section 21 of the Commons Registration Act 1965, but common land could not be a highway under section 22(1).
5. There was therefore no real prospect of proving that counsel had been negligent. The same conclusion applied to the solicitors, who were entitled in these circumstances to rely on counsel’s judgment. The weakness of the highway argument also made it highly unlikely that any loss had been caused.

• High Court, Chancery Division: Ferris J granted summary judgment for the defendants on 12 December 2001 under CPR 24.2(a)(i).
• Court of Appeal (Civil Division): Permission to appeal and an extension of time were refused.