Moy v Pettman Smith (a firm) & Anor

An advocate’s advice on settlement is negligent only if it falls below the standard of reasonably competent counsel. A mistaken opinion is not itself negligence, particularly where the issue is finely balanced. The advice must nevertheless address the real prospects of success and be sufficiently clear to enable the client to make an informed decision.

An advocate owes the relevant duty to the client, not to the solicitor who instructed the advocate. A possible professional negligence claim against another adviser cannot be treated as a substitute for properly advising the client about the immediate settlement decision unless its relevance, risks and uncertainties are explained.

Mr Moy brought proceedings against his solicitors and barrister after accepting £120,000 in settlement of an underlying clinical negligence claim. An earlier offer of £150,000 had been rejected on the barrister’s advice because she considered that further medical evidence might be admitted at trial and that the claim was worth substantially more.

HHJ Geddes held that the solicitors alone were responsible for the loss and dismissed the claim against the barrister and the solicitors’ contribution claim. The solicitors appealed, contending that the barrister had negligently advised Mr Moy to reject the £150,000 offer and that responsibility should be apportioned.

1. Appeal allowed in part. The judge’s conclusion that the barrister’s assessment of the prospects of obtaining leave to adduce further evidence was not itself negligent was upheld. The relevant question was whether her assessment fell outside the range reasonably competent counsel of her seniority and experience could have made: [2000] 3 WLR 543.
2. The advice on the £150,000 offer was nevertheless negligent. Mr Moy was entitled to a proper assessment of whether he would obtain more by proceeding with the trial. The barrister’s own assessment was approximately 50–50, but she failed to communicate that assessment and failed adequately to explain the serious evidential and procedural difficulties.
3. The barrister wrongly believed that she owed a duty to the solicitors. Her duty was to Mr Moy alone. If the prospect of a claim against the solicitors was relevant, she had to explain that it could be difficult and was not guaranteed to succeed.
4. The court inferred that, with proper advice, Mr Moy would have accepted the £150,000 offer. Causation was therefore established.
5. Contribution was apportioned by reference to both causative responsibility and blameworthiness. The solicitors’ repeated failures created the underlying difficulty and bore the overwhelming responsibility. The barrister was liable for 25 per cent of the overall loss, assessed at £52,500. The judgment below was varied accordingly.
6. Brooke LJ additionally emphasised that competent advocates are not expected to command every unreported decision, but may be expected to investigate procedural law where the circumstances put them on inquiry. The contemporary approach to compliance with procedural orders should have made the barrister’s favourable assessment more cautious.

• Court of Appeal (Civil Division): allowed the solicitors’ appeal in part and varied the judgment below, holding the barrister liable for £52,500.
• Queen’s Bench Division: HHJ Geddes, sitting as a Deputy High Court Judge, held the solicitors solely responsible and dismissed the claim and contribution claim against the barrister.