Taylor Walton (A Firm) v Laing

A collateral negligence claim against solicitors may proceed after earlier litigation where it alleges that negligent conduct caused an adverse result. It is nevertheless an abuse of process where success requires the claimant to overturn the same factual and credibility findings already made in the earlier action, on evidence which was or could have been deployed there.

The proper means of challenging such findings is an appeal. A later claim against different parties does not avoid that principle where it is in substance a relitigation of the first action. A collateral first-instance action will only exceptionally disturb the earlier result on genuinely new evidence that wholly changes the case.

Taylor Walton, a firm of solicitors, appealed against Langley J’s refusal to strike out Mr Laing’s negligence claim as an abuse of process: [2007] EWHC 196 (QB).

Mr Laing had previously litigated against Mr Watson and associated companies concerning agreements governing funding, a shareholding and a share of development profits. After a trial, Judge Thornton accepted Mr Watson’s account of the agreements. Mr Laing did not appeal.

Mr Laing then alleged that the solicitors had negligently drafted the 1999 and 2002 written agreements. The central issue was whether that claim permissibly sought damages for negligent drafting, or impermissibly required the court to relitigate the factual findings in the earlier action.

1. Appeal allowed. The negligence action was struck out as an abuse of process. Laws LJ agreed with both judgments, and Moses LJ agreed with Buxton LJ’s reasons.
2. The court applied the broad abuse jurisdiction described in Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The inquiry is fact-sensitive and asks whether the later proceedings would be manifestly unfair or would bring the administration of justice into disrepute. It is not confined to fixed categories.
3. Mr Laing could not establish negligent drafting without proving that his own account of the underlying agreements was true and that Judge Thornton’s adverse findings on credibility and fact were wrong. The written material and alleged drafting deficiencies had been, or could have been, raised at the original trial. The second action was therefore a substantive attempt to reverse the first decision before a court of concurrent jurisdiction.
4. The proper course for disturbing Judge Thornton’s decision was an appeal. The exceptional possibility of a collateral action based on new evidence, recognised in Phosphate Sewage v Molleson (1879) 4 App Cas 801, did not assist Mr Laing because he relied on no new evidence.
5. Hall v Simons [2002] 1 AC 615 confirms that a negligence claim against a legal adviser is not inherently objectionable merely because an earlier civil case went to trial. That principle did not govern this case. Ordinarily the alleged negligence is independent of the earlier factual findings, or could arise only after the earlier proceedings. Here the alleged negligence could succeed only by impeaching findings that the claimant had every opportunity to address at trial.
6. The court did not accept that the earlier interlocutory ruling concerning Mr Kelly’s retainer itself prevented the new claim. Nor was it necessary to determine the suggested issue-estoppel argument based on alleged privity between solicitor and client.

• Court of Appeal (Civil Division): Allowed Taylor Walton’s appeal and struck out Mr Laing’s negligence action as an abuse of process: [2007] EWCA Civ 1146.
• High Court (Queen’s Bench Division): Langley J refused to strike out the negligence claim: [2007] EWHC 196 (QB).