Feakins v Burstow & Anor

A solicitor retained to advise on litigation and related monetary claims must consider the substance of correspondence received from the opposing party, identify issues requiring prompt investigation, obtain appropriate instructions and advise on the necessary response. A solicitor cannot safely leave such an issue to the client where the client is relying on the solicitor’s advice.

Where negligence causes the loss of an opportunity to establish a claim or defence, damages may be recovered for a real and substantial chance of success. The court must assess that chance realistically, allowing for uncertainty caused by the solicitor’s negligence. A claim alleging that litigation would have been conducted differently is not ordinarily an abuse of process or collateral attack on the original judgment.

The claimant exported live sheep and was liable for clawback on exports, subject to exemption for specified sheep. The defendants’ solicitor acted in related proceedings concerning recovery and payment of clawback. The Intervention Board later counterclaimed approximately £406,000, including sums said to relate to shipments previously treated as exempt.

The claimant alleged that the solicitor negligently failed to investigate, plead and pursue the exempt-sheep issue before summary judgment was entered and upheld on appeal. He claimed damages for the lost chance of proving that some shipments were exempt, together with related losses. The central issues were the scope of the solicitor’s retainer, negligence, causation, contributory negligence, abuse of process and assessment of loss.

1. Negligence. The solicitor’s retainer extended beyond the formal conduct of the group litigation to advising on the clients’ wider position and the Board’s monetary claims. On receiving the Board’s August 1992 letter, he should have considered the substantial new claim concerning allegedly exempt shipments, obtained instructions, sought the supporting schedules and advised that the matter required immediate action. His failure to do so was a breach of duty.
2. The issue was raised again in 1996, after counterclaims had been served. The solicitor recognised its importance but failed to ensure that the facts were understood, that the Board identified the relevant transactions, and that the point was specifically pleaded and explained to counsel. Similar failures continued in 1999. Reliance on counsel did not provide a defence because counsel had not been properly instructed.
3. Loss of chance. Applying Mount v Baker Austin [1998] PNLR 493 and Browning v Brachers [2005] EWCA Civ 753, the question was what would probably have occurred at a notional trial, or by settlement, if the solicitor had acted competently. The claimant had to show a real and substantial, rather than negligible, chance of success. The court had to assess that chance despite the evidential difficulties caused by the delay.
4. The reasoning in Amory v Delamirie (1772) 1 Stra. 505 supported a fair and generous assessment where the defendant’s negligence had destroyed the opportunity to prove value. The claimant had a more than negligible chance of establishing that some annex 3 shipments were exempt, but no real chance of proving the whole claim. The chance was assessed at 60 per cent of the £194,708 claimed for those shipments.
5. The claim was not an abuse of process or issue estoppel. Under Smith v Linskills [1996] 1 WLR 763 and Hall & Co v Simons [2002] 1 AC 615, a negligence claim alleging that a case was lost through defective legal representation is not ordinarily a collateral attack on the original judgment where the claimant accepts that judgment as binding.
6. The remaining claims failed. There was no contributory negligence, including because the claimant was entitled to rely on the solicitor for advice after supplying the relevant correspondence. Judgment was entered for damages representing 60 per cent of the relevant clawback claim and proportionate interest. Costs issues and the solicitor’s counterclaim for unpaid fees were left for further agreement or determination.

Not an appeal. The judgment records that the claimant’s earlier proceedings against the Intervention Board were determined by Ian Kennedy J on 14 April 2000 and that the Court of Appeal dismissed the appeal on 23 October 2001, but those decisions were not under appeal in the present action.