Moy v Pettmann Smith (a firm)

The House of Lords allowed the appeal and restored the trial judge's decision that the barrister (Miss Perry) was not negligent in advising the claimant whether to accept a payment into court. The court applied the standard in Arthur JS Hall & Co v Simons so that an advocate's conduct is judged by the standard applicable to other skilled professionals and not by hindsight. The trial judge's assessment of the advocate's factual appraisal and the advice given at the door of the court should not lightly be disturbed absent evidence that no reasonably competent advocate would have acted as she did. The court also held that section 1(5) of the Civil Liability (Contribution) Act 1978 does not bar an appeal in the circumstances of this case and can be construed so as not to prevent ordinary appellate rights.

This was an appeal from the Court of Appeal ([2002] EWCA Civ 875) against part of the High Court judgment given by HHJ Geddes in favour of the barrister Miss Jacqueline Perry. The claimant, Mr David Moy, had brought an action for damages arising from negligent orthopaedic surgery and recovered against the health authority; procedural failures by his solicitors left gaps in the medical evidence needed to prove continuing disability and future loss. At a hearing immediately before trial the health authority paid money into court and the barrister advised the claimant on whether to accept that payment or proceed and seek admission of further medical evidence.

The core issues for the courts were:

• whether the barrister was negligent in her assessment of the prospects of persuading the trial judge to admit the further medical evidence and in the advice she gave the claimant at the court door on 6 April 1998; and
• whether section 1(5) of the Civil Liability (Contribution) Act 1978 made the trial judge's favourable finding conclusive so as to bar an appeal by the solicitors or otherwise prevent challenge.

The trial judge found the solicitors negligent in failing to prepare the claim properly but held that the barrister's assessment and the advice she gave were within the range of that which a reasonably competent advocate of her experience could give and dismissed the claim against her. The Court of Appeal accepted the trial judge's assessment of prospects but held that the barrister had been negligent by failing to give a more detailed, quantitative explanation (for example, stating a 50:50 chance) and concluded the claimant would have accepted the higher offer had he been so advised.

The House of Lords allowed the barrister's appeal. The Lords emphasised (i) the appropriate professional standard for advocates established in Hall v Simons; (ii) the risk of appellate hindsight; (iii) that there was no reliable evidence showing the advice was the kind no competent advocate would give; and (iv) policy reasons to avoid imposing a rule that would cause advocates to adopt defensive or hedging practices. On section 1(5) the House held the subsection should not be read so as to deprive a party of ordinary appellate rights or to treat interlocutory or non-final judgments as conclusive for the purposes of contribution while appeals remain possible.

Appeal allowed. The House concluded that the trial judge was right to find that the barrister's assessment and advice fell within the range of reasonably competent practice and the Court of Appeal was wrong to hold otherwise. The House also held that section 1(5) of the Civil Liability (Contribution) Act 1978 did not bar the solicitors' appeal and should be read so as not to deprive parties of normal appellate remedies.

Trial: High Court (HHJ Geddes) — judgment found solicitors negligent and dismissed claim against the barrister. Court of Appeal: [2002] EWCA Civ 875 — allowed solicitors' appeal in part, held the barrister negligent. House of Lords: [2005] UKHL 7 — appeal allowed and trial judge's order restored.