Aisbitt v Conrathe & Anor

A solicitor’s removal from the court record does not, by itself, end actual authority conferred by the client. The authority continues unless revoked, although being on the record remains important evidence of ostensible authority to third parties. In a professional negligence claim concerning underlying litigation, the court must assess what would have happened without the solicitor’s negligence. If the underlying claim would have been withdrawn in any event, or had negligible prospects of success, no recoverable loss is established. A claimed medical condition also requires proof of a causal link to the solicitor’s failings. Permission to appeal requires an arguable basis for reversing the trial judge’s conclusions.

The applicant claimed against her former solicitors after judicial review proceedings against South Bank University were withdrawn. The High Court, before Wilkie J, found breach of contract and negligence but entered judgment for the applicant in the nominal sum of £2. It ordered her to pay 60 per cent of the defendants’ costs and an interim payment of £10,000, with enforcement postponed pending any appeal. Permission to appeal was refused.

Before the Court of Appeal, the applicant challenged the solicitors’ authority to agree the consent order after coming off the record. She also challenged the assessment of loss, the nominal damages award, the costs order and the finding that her medical condition was not caused by the solicitors’ failings.

1. Application for permission to appeal refused. The proposed grounds did not disclose an arguable basis on which the Court of Appeal, on fuller consideration, would reverse the trial judge’s findings.
2. A solicitor’s status on the court record is important evidence of ostensible authority to third parties. It does not, however, determine whether actual authority continues between solicitor and client. Where the client has given express authority to withdraw proceedings and has not revoked it, coming off the record does not remove that authority.
3. In a professional negligence claim concerning conduct of underlying litigation, the court must assess the counterfactual position: what would have happened if the solicitors had not been negligent. The trial judge was entitled to find that the judicial review claim would have been withdrawn in the same terms even if the applicant had conducted the negotiations herself. He was also entitled to conclude that the underlying claim had negligible prospects of success and therefore caused no loss.
4. The applicant’s medical evidence did not establish a causative link between her medical condition and the solicitors’ failings. The court took account of Lord Bingham’s observations in Fairchild [2003] 1 AC 32 concerning the nature of tortious proceedings and the importance of providing remedies where appropriate, but the trial judge remained entitled to reject causation on the evidence.

• Court of Appeal (Civil Division): On 14 December 2004, Lord Justice Pill refused permission to appeal. [2004] EWCA Civ 1753.
• High Court, Queen’s Bench Division: Wilkie J’s judgment dated 19 October 2004 found breach of contract and negligence but awarded only £2, ordered the applicant to pay 60 per cent of the defendants’ costs, and refused permission to appeal.