White v Paul Davidson & Taylor

A solicitor retained to advise on litigation must survey the whole scene, ascertain the relevant facts and give complete advice on viable responses. Where the complaint is failure to give proper advice, causation requires proof of the advice that should have been given, the action the claimant would probably have taken, and loss caused by the omission.

Reliance on limited advice actually given is insufficient where the claimant would have followed the same course after full advice. A policy-based causation exception in an informed-consent medical case is not a general rule for legal professional negligence. Solicitors remain entitled to remuneration where work was not useless and there was no total failure of consideration. The appeal was dismissed.

The appellant instructed the respondent solicitors in possession proceedings concerning his late father’s former tenancy. The Housing Association relied on Ground 7 of Schedule 2 to the Housing Act 1988 and had also served a notice to quit. The appellant asserted a right to buy under Part V of the Housing Act 1985.

The solicitors advised on Ground 7 and pursued an adjournment and counterclaim, but did not advise on the effect of the notice to quit. After the Housing Association amended its case, the appellant changed solicitors. The respondent firm sued for its outstanding fees, and the appellant alleged negligence and counterclaimed damages and sums already paid.

His Hon Judge Mitchell, sitting at Brighton County Court at Bromley, entered judgment for the solicitors and dismissed the counterclaim. The appeal concerned negligence, causation, loss and the solicitors’ entitlement to remuneration.

1. Disposition. The appeal was dismissed. Ward LJ assumed, without deciding, that the solicitors had been negligent, because the appeal could conveniently be determined on causation. Arden LJ agreed that causation was the threshold issue.
2. Scope of duty. A solicitor retained to advise on litigation must survey the whole scene, ascertain the relevant facts and advise on the proper course. The solicitor cannot rely solely on the way the opponent’s case is pleaded where the papers disclose a document capable of defeating the client’s position. The omitted advice was properly characterised as failure to give proper advice, rather than incorrect advice.
3. Causation. The three conditions identified in Boateng v Hughmans [2002] PN449 applied. The claimant had to establish the advice that should have been given, the action he would probably have taken if properly advised, and loss caused by the failure. Applying the distinction in Bristol & West Building Society v Mothew [1998] Ch. 1, reliance on the limited advice actually given was insufficient. The appellant had to show that he would probably have filed no defence or counterclaim. The judge’s finding that he would have persisted in pursuing the right to buy defeated causation.
4. Chester v Afshar. The decision of the House of Lords did not establish a general causation rule. As Arden LJ explained, it concerned an exceptional policy-based modification in medical negligence involving informed consent. The policy considerations reflected in article 5 of the Council of Europe Convention on Human Rights and Biomedicine and article II.63.2(a) of the Charter of Fundamental Rights of the European Union did not apply to this legal professional negligence claim. The ordinary rule that a defendant is not liable for harm not caused by the breach therefore governed.
5. Loss and fees. Once the Housing Association amended its case and relied on the notice to quit, the chain of causation was broken. In any event, the favourable costs order meant that any recoverable loss would have been the difference between the appellant’s own-client costs and the standard costs recovered, which he had not proved or quantified. The work performed by the solicitors was not useless and there was no total failure of consideration. Under Hill v Featherstonhaugh (1831) 7 Bing. 569 and Heywood v Wellers [1976] 1 Q.B. 446, the appellant could not deny remuneration merely because of some lack of skill.
6. Orders. The appeal was dismissed. The appellant was ordered to pay the respondent’s appeal costs, on the standard basis for the specified earlier period and on the indemnity basis from 3 October 2004, and to make an interim payment of £13,000 within 14 days.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 1511; appeal dismissed, with costs and an interim payment order.
• Brighton County Court — His Hon Judge Mitchell, sitting at Bromley County Court, entered judgment for the solicitors in the sum of £12,491.84 on 15 October 2002 and dismissed the appellant’s counterclaim.