Pritchard Joyce & Hinds v Batcup & Anor

A legal adviser instructed in proceedings must alert the client to a reasonably arguable negligence claim against a previous adviser where the earlier adviser may have allowed a limitation period to expire. The duty arises even if the claim appears weak, unless it is evidently hopeless. The client must be given the opportunity to obtain advice and decide whether to preserve the claim.

In assessing contribution, the court evaluates the lost claim on the basis that it had real and substantial value, without finally trying it. Where solicitors and counsel are both responsible, contribution is apportioned justly and equitably by reference to their relative responsibility for the loss.

The claimant firm of solicitors had settled negligence proceedings brought by Mr and Mrs Fox and sought contribution under section 1 of the Civil Liability (Contribution) Act 1978 from counsel instructed in related litigation.

The alleged underlying loss arose when Mr Leech of Lindars Leech advised the Foxes in October 1985 in relation to a proposed £445,000 settlement and the settlement opportunity was lost. Wellers later failed to advise about the time limit for a claim against Lindars Leech. The claimant and the defendants failed to advise the Foxes before the end of October 1997 about a possible claim against Wellers and its impending limitation bar.

The issues were whether the defendants were liable for that omission, whether the claimant’s settlement was bona fide and reasonable, and how any contribution should be apportioned.

1. Lost settlement claim. The court’s task was to decide whether the lost claim against Lindars Leech had real and substantial value, rather than finally determine it. Applying the approach reviewed in Dixon v Clement Jones [2005] PNLR 6; [2004] EWCA Civ 1005, the court held that the claim had substantial value as at October 1991. Mr Leech’s criticisms of the draft agreement were substantially sound, but it was arguably negligent to advise so emphatically that the settlement should be renegotiated, that the solicitors should immediately be changed, and that litigation should be pursued if renegotiation failed. It was also arguably negligent not to contact the other side promptly.
2. Claim against Wellers. Although the case was comparatively weak, there was more than a negligible prospect that Wellers should have recognised from the ten-page note that the October 1985 advice required investigation and that a limitation period might expire before the end of October 1991. The court applied the principle in Armory v Delamirie (1722) 1 Stra. 505 that evidential uncertainty resulting from negligence should benefit the claimant.
3. Duty of counsel and solicitors. From at least June 1995 Mr Batcup, and from August 1997 Mr Susman, knew or should have known that the lost settlement claim formed part of the case against Lindars Leech and that it was prima facie statute-barred. They were therefore obliged to tell the Foxes that Wellers might have been negligent in failing to preserve that claim and that the time limit for proceedings against Wellers would expire at the end of October 1997. The duty applied even if counsel considered the claim weak, unless it was evidently hopeless. The court distinguished the reasoning in Bolitho v City & Hackney Health Authority [1998] AC 232, because the relevant decision would have been the client’s, not the adviser’s.
4. Causation and contribution. The Foxes would have taken steps to preserve and pursue the claim against Wellers. PJH were also liable on the assumed facts. Their settlement of £110,000, together with £160,000 costs, was bona fide and reasonable. Under section 2 of the Civil Liability (Contribution) Act 1978, counsel bore 75 per cent of the responsibility and PJH 25 per cent. No apportionment between the two defendants was required.