Walker v Chruszcz

Advice on settling litigation must be assessed by the ordinary standard of reasonable skill and care. The settlement context does not impose a different or higher standard, but it requires proper allowance for the range of reasonable judgments available to a practitioner facing litigation risks. Firm advice is not negligent merely because the case might have succeeded at trial. Where prospects depend materially on disputed evidence and the client’s credibility, a practitioner may reasonably advise settlement if there is a serious, properly explained risk of losing. The court must assess the substance of the advice rather than its precise wording, while avoiding hindsight.

Mr Walker brought negligence proceedings against his former leading counsel, Charles Chruszcz QC, and his solicitors, Irwin Mitchell. He alleged that they negligently advised him to settle his personal injury claim against his former employer for £95,000 on the morning fixed for trial.

The trial concerned a preliminary issue as to whether either defendant had breached the duty alleged in the Particulars of Claim. The central question was whether competent practitioners could properly regard Mr Walker’s prospects of establishing primary liability as carrying a serious risk of failure, particularly because the case depended on sharply conflicting evidence and his performance as a witness.

1. Applicable standard. Counsel and solicitors advising on compromise were required to exercise the reasonable skill and care expected of reasonably competent specialists. The settlement context did not create a different or higher standard. It did, however, require allowance for the range of reasonable responses available when assessing litigation risks. The substance of the advice, rather than its precise wording, was material. The approach in Griffin v Kingsmill [2001] EWCA Civ 934 and Moy v Pettman Smith & Co [2005] UKHL 7; [2005] 1 WLR 583 was relevant.
2. Assessment of primary liability. The original claim was not indefensible. Its outcome depended on the precise sequence and timing of events, whether Mr Walker unexpectedly climbed onto a JCB while it was operating or preparing to lower its bucket, and whose evidence the trial judge accepted. Mr Walker’s own inconsistent accounts, including the disputed period for which he stood on the machine and the changing account of the fuel hose, were material to that assessment.
3. Reasonableness of the advice. Mr Chruszcz and Irwin Mitchell were entitled to regard Mr Walker’s reliability and likely presentation in the witness box as central to primary liability. Their advice was not that the case was hopeless. It was that there was a serious risk that he would fail on liability. That assessment fell within the range properly open to competent practitioners and was sufficiently explained. The JCB material was ambiguous and did not eliminate the factual issues.
4. The claimant therefore failed to establish breach of duty. The first part of the preliminary issue was answered in the negative, so the question of percentage prospects and contributory negligence did not arise. Judgment was entered for both defendants on the preliminary issue.