Hicks v Russell Jones & Walker

A solicitor’s duty includes identifying significant evidential risks, explaining them to the client, obtaining instructions and seeking timely advice from the leading counsel who will conduct the case. Causation is assessed on the evidence of what competent advice and instructions would probably have produced, rather than with hindsight. Where counsel’s timely advice would have been determinative, preparatory work undertaken before receiving that advice does not establish that the lost opportunity caused the claimant’s loss. Fresh evidence on appeal remains subject to the approach in Ladd v Marshall [1954] 1 WLR 1489.

This was a supplemental judgment following the claimant’s appeal from an earlier judgment in which liability was established in part but causation failed, leaving only nominal damages. Toulson LJ granted permission to appeal on issues concerning the solicitors’ failure to obtain timely advice from leading counsel and to take proper instructions regarding an August 1991 valuation.

The Court of Appeal directed the trial judge to determine what the solicitors ought to have done, given that they had failed to arrange a timely conference with leading counsel, and what consequences flowed from the failure to obtain earlier instructions. The central question was whether competent handling would probably have led to further evidence or a fresh valuation being obtained and used at the appeal.

1. The court concluded that the solicitors should have drawn the August 1991 valuation specifically to the claimants’ attention, supplied them with the relevant evidence, discussed the evidential risks, obtained their views and sought advice from leading counsel at the earliest opportunity.

2. The lost opportunity to arrange a conference in late March or early April 1998 resulted from inadequate pursuit of legal-aid arrangements and insufficient supervision. Nevertheless, the claimants would probably have accepted advice to take only preparatory steps until leading counsel had advised.

3. Leading counsel would probably have advised against adducing further evidence and against obtaining a fresh valuation. The claimants’ proposed rebuttal material would not have materially altered that advice. A retrospective valuation would have required funding and prior authority, and counsel’s advice would probably have been determinative.

4. Accordingly, the solicitors’ breaches did not cause loss. Even if the further evidence had been obtained, the Court of Appeal would probably have refused permission to adduce it. The approach in Ladd v Marshall [1954] 1 WLR 1489 would ordinarily apply to valuation and rebuttal evidence which could with reasonable diligence have been obtained before the earlier hearing. The court also considered it unlikely that such evidence would have displaced the contemporary valuation or established that the hotel’s value approached the indebtedness.

5. The court declined to admit new material supplied after trial, including a complaint letter and witness statements, because it had not been evidence at trial and had not been properly tested.

• Court of Appeal: Toulson LJ granted permission to appeal on two grounds. On 12 July 2007, Lloyd and Toulson LJJ directed the trial judge to make contingent findings under CPR Rule 52.10(2)(b).
• High Court (Chancery Division): The supplemental judgment addressed the referred question and maintained the conclusion that the solicitors’ breaches caused no recoverable loss.