Moy v. Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)

An advocate is judged by the standard applicable to any skilled professional working in difficult and time-constrained circumstances. Liability arises only where the advice falls outside the range open to reasonably competent counsel. A mere error of judgment does not suffice.

Settlement advice must be assessed by its substance and context. An advocate may give a clear recommendation without cataloguing every consideration or expressing every doubt. Courts should avoid substituting their personal standards, particularly where no professional evidence has been adduced.

The House also explained that section 1(5) of the Civil Liability (Contribution) Act 1978 does not bar an appeal within the original proceedings while the relevant judgment remains liable to be set aside.

The claimant recovered damages against his solicitors after their negligent preparation of an earlier medical negligence action had caused him to settle at a substantial undervalue. The barrister who had advised him at the court door was joined to the professional negligence proceedings. The High Court found the solicitors negligent but held that the barrister’s assessment and advice fell within the range open to reasonably competent counsel.

The Court of Appeal, in [2002] EWCA Civ 875, held that the barrister had failed to explain sufficiently the prospects of obtaining permission to introduce essential medical evidence. It consequently held her liable for a proportion of the claimant’s loss. She appealed to the House of Lords.

The principal issue was whether her advice, assessed in its full context, breached the professional duty of care. The House also considered whether section 1(5) of the Civil Liability (Contribution) Act 1978 had made the High Court judgment in her favour conclusive and therefore barred the solicitors’ appeal.

1. Appeal allowed unanimously. Lord Carswell delivered the leading speech, and all the other Law Lords agreed with his reasons. The barrister’s assessment of the application’s prospects and her advice to proceed fell within the range open to reasonably competent counsel. The Court of Appeal’s order was set aside and the High Court order restored.

2. Per Lord Carswell, an advocate is subject to the same standard of care as another skilled professional who must exercise judgment in difficult and time-constrained circumstances. The principle stated in Arthur J S Hall & Co v Simons [2002] 1 AC 615 required proof of an error that no reasonably competent member of the relevant profession would have made. Hindsight must not convert a reasonable but unsuccessful judgment into negligence.

   The assessment of the application’s prospects and the resulting settlement advice formed one decision-making process. The claimant had much to gain if the evidence were admitted and retained a possible negligence claim against the solicitors if it were refused. Advice to proceed was therefore reasonably open to counsel, even if another advocate might have recommended settlement.

3. Per Lord Carswell, no hard and fast rule requires an advocate to state every reason underlying a recommendation. The court must examine the substance and context of the advice. Clear and readily understood advice may satisfy the duty without a catalogue of every risk, qualification or possible alternative. Over-prescriptive duties could inhibit independent judgment and encourage defensive advocacy.

   Lord Hope and Baroness Hale agreed that a claimant considering a payment into court ordinarily needs to understand the likely recovery and the costs consequence of failing to beat the payment. That minimum information had already been supplied here. The unusual question concerned the presentation of the procedural risk at the court door, and there was no evidence or authority showing that no reasonable barrister would have advised in the manner adopted.

4. Per Lord Hope, with the agreement of Lord Nicholls, Baroness Hale and Lord Brown, professional negligence will usually require evidence capable of showing departure from the relevant standard. Judges relying on their own advocacy experience must avoid asking what they personally would have done. In the absence of such evidence, considerable weight was due to the trial judge’s assessment after hearing the witnesses.

5. Lord Carswell observed, without making it a ground of decision, that a claimant alleging inadequate explanation would bear the burden of proving on the balance of probabilities that fuller advice would have changed the decision. On the evidence, it was doubtful that this claimant would have rejected counsel’s recommendation.

6. On section 1(5) of the Civil Liability (Contribution) Act 1978, Lord Carswell concluded, with the agreement of the House, that the provision did not bar the solicitors’ appeal. This issue was strictly unnecessary to the result. “Judgment” could mean a final judgment after appeals, or the subsection could be confined to later contribution proceedings. Lord Hope’s analysis of Scottish third-party procedure supported the conclusion that a judgment still subject to a competent appeal is not conclusive for this purpose.

7. The High Court order was restored, with the barrister’s costs in the Court of Appeal and the House of Lords. The apportionment and remaining costs issues did not require determination.

1. House of Lords: In Moy v Pettmann Smith [2005] UKHL 7, the House unanimously allowed the barrister’s appeal, set aside the Court of Appeal’s order and restored the High Court order.

2. Court of Appeal: In [2002] EWCA Civ 875, the court allowed the solicitors’ appeal. It held that the barrister had negligently failed to explain the prospects of obtaining permission to adduce essential medical evidence and made her liable for a proportion of the agreed damages.

3. High Court: On 4 July 2001, HHJ Geddes, sitting as a High Court judge, awarded the claimant £210,000 against the solicitors. He held that the barrister’s assessment and advice were not negligent and dismissed both the claimant’s case and the solicitors’ Part 20 claim against her.