Jassi v Gallagher

In a professional-negligence claim against counsel, the question is whether the advice fell outside the range expected of a reasonably competent practitioner of the relevant seniority and experience. The possibility of a protective statutory notice does not, by itself, make failure to advise on it negligent. Where the notice requires factual particulars, an inconsistent second notice may expose the client to damaging cross-examination. A without prejudice label may not remove that risk. The proposed course must be shown to be reasonably practical and capable of protecting the client’s overall position. An appellate court should give considerable weight to the first-instance judge’s assessment and intervene only for an error of law or application of the wrong standard.

Mr Jassi brought a professional-negligence claim against his former barrister. He alleged that the barrister should have advised him in 1997 or 1998 to serve a protective claim notice under the Leasehold Reform Act 1967, while defending the validity of an earlier notice.

The earlier notice was later set aside because of defects concerning residence and prescribed particulars. Hart J dismissed the negligence claim on 21 December 2005. The appeal concerned whether the judge had applied the correct standard and whether a protective notice was a reasonably practical precaution in the circumstances.

The Court of Appeal unanimously dismissed the appeal. Mummery LJ delivered the principal judgment, with which Buxton and Wilson LJJ agreed.

1. Standard of care. The issue was not simply whether the barrister had made a mistake. It was whether the advice fell outside the range expected of reasonably competent counsel of the relevant seniority and experience, applying Moy v Pettman Smith [2005] 1 WLR 581. The absence of expert evidence did not prevent the judge from determining that standard. Considerable weight was due to the first-instance judge who had heard all the evidence (para [42]).
2. Protective notice. A second notice was a possible course, and it did not have to be perfect: inaccuracies would not necessarily invalidate it. But it had to be shown to be a reasonably practical measure capable of protecting the client’s overall position (paras [48]-[50]).
3. Inconsistent particulars. A claim notice under the Leasehold Reform Act 1967 required factual particulars concerning occupation, other residences and relevant periods. A second notice based on facts inconsistent with the first could materially damage the client’s credibility. Describing it as being given without prejudice would not prevent the landlords from using it in cross-examination (paras [44]-[46], [50]). Wilson LJ added that the proposed notice was arguably misconceived because it gave opaque and alternative answers to factual questions which required particularisation (paras [62]-[64]).
4. Application and appellate review. The barrister had acted on his client’s instructions and had no reason to doubt the account on which he was instructed to defend the first notice. He was not required to anticipate that corroborating evidence would later be rejected or contradicted. Hart J had applied the correct standard and reached a conclusion open to him on the evidence. The Court of Appeal would not substitute its own assessment; intervention would ordinarily require an error of law or use of the wrong standard (paras [47], [58]-[60]).

The alternative arguments on causation and the effect of the client’s alleged deliberate misleading were unnecessary to decide. The claim therefore failed because breach of the professional duty of care had not been established.

• Court of Appeal (Civil Division): The appeal from Hart J’s order was dismissed.
• High Court, Chancery Division: Hart J dismissed with costs the professional-negligence action on 21 December 2005.