Popat v Barnes

A barrister is not negligent merely because a tactical decision at trial later proves unsuccessful. The question is whether the decision was one that no competent practitioner could reasonably have made on the information then available. A standard alibi direction was usual, but there was no rule requiring it in every case, and its omission did not automatically make a conviction unsafe. A deliberate decision not to seek a direction could reasonably be maintained on appeal where the direction might harm the defence. Loss of a chance must be assessed by reconstructing the position at the relevant time, including the effect of the undisclosed trial strategy and the other grounds that succeeded on a later appeal.

The claimant had been convicted of serious offences after being represented by the defendant barrister. His defence included mistaken identity and an alibi supported by his parents. The defendant did not ask the trial judge to give an alibi direction and did not raise its absence as a ground of appeal.

The convictions were later quashed on a further appeal, following referral by the Criminal Cases Review Commission, and the claimant was acquitted at retrial. He claimed damages for professional negligence, alleging that the defendant should have sought the direction and raised the point on the first appeal. The central issues were whether her decisions fell below the competent standard and, if so, what chance of a better outcome had been lost.

1. Claim dismissed. The defendant was not negligent at trial or in failing to raise the alibi-direction point on the first appeal.
2. There was no rule of law requiring the standard alibi direction, comprising burden and standard of proof and the Lucas limb, in every case. Competent practitioners knew that it was usually, and routinely, given where an alibi was raised, but its absence did not necessarily render a verdict unsafe.
3. The defendant’s assessment that a further direction might focus the jury on whether the claimant and his parents had lied was reasonable. Her decision was within the range of decisions open to competent counsel. The fact that the jury convicted did not itself demonstrate that the tactical decision was negligent.
4. A tactical decision deliberately made at trial cannot readily be reversed on appeal. Unless manifestly wrong and against the client’s interests, it is a persuasive indication that the verdict is not unsafe. The circumstances of the decision must be disclosed when the point is raised.
5. The later quashing of the convictions did not establish a 100 per cent chance of success on the first appeal. The later court had considered other grounds, particularly the identification evidence, and had not known of the trial strategy. The hypothetical appeal and retrial had to be assessed as they would have appeared at the relevant time.
6. The court assessed the overall lost chance at 20 per cent, but that assessment did not affect the result because liability was not established.

Not stated in the judgment as an appellate history of this claim. The judgment records that the claimant’s criminal appeal was initially dismissed, his convictions were later quashed on a further appeal, and he was acquitted at retrial.