Pritchard Joyce & Hinds (A Firm) v Batcup & Anor

The standard in professional-negligence claims is reasonable competence, not hindsight or perfection. The question is whether a reasonably competent legal adviser should have identified and acted on the matter, not whether a particularly diligent adviser might have done so.

Lawyers are not required to discover every theoretical claim. Where the contemporaneous documents and instructions do not reasonably disclose a distinct claim, an adviser need not investigate it further or advise on its limitation period. An error must be sufficiently plain to amount to negligent professional conduct.

Pritchard Joyce & Hinds settled the Foxes’ negligence claim against it and sought a contribution from the appellants, leading and junior counsel whom it had instructed. The alleged negligence was their failure to advise, before the end of October 1997, that a possible claim against Wellers might itself be time-barred.

The alleged underlying claim concerned advice given by Lindars Leech in October 1985, which was said to have caused the Foxes to lose an opportunity to settle litigation. At first instance, Underhill J held that Wellers had arguably been negligent in failing to identify that claim in 1991, and that the appellants should have identified a claim against Wellers. He found the appellants professionally negligent: [2008] EWHC 20 (QB).

The Court of Appeal considered whether reasonably competent counsel should have recognised, from the instructions and pleadings, a distinct and viable claim against Wellers requiring limitation advice.

1. Appeal allowed. Underhill J had imposed an over-exacting standard of professional care. The governing inquiry was whether a reasonably competent adviser should have taken the relevant step, not whether a particularly meticulous adviser might have done so after a detailed reconstruction of events.

2. Wellers had received the Foxes’ ten-page note and, on request, Mr Leech’s letter of 23 October 1985. The letter was full and explicit, and was prima facie the best evidence of the earlier oral advice. Its substantive criticisms of the proposed settlement were real and, on their face, unimpeachable. Neither document suggested that Mr Leech had separately given erroneous oral advice, or that a distinct claim based on such advice was latent within the material.

3. It was therefore not open to the judge to conclude that any reasonably competent solicitor would have pursued further enquiries before October 1991. The judge’s finding of a potentially viable claim against Wellers failed. Consequently, neither appellant could be criticised for failing before October 1997 to identify and advise upon a claim against Wellers for missing its limitation period.

4. The documents supplied to Mr Batcup and Mr Susman did not reasonably show that the Foxes wished to advance the distinct claim identified by the judge. They consistently supported a different complaint: that, after advising against the settlement, Lindars Leech failed to obtain a better settlement or prosecute the litigation competently. The pleadings and later notes did not require counsel to infer an unpleaded revival of a claim concerning negligent advice in October 1985.

5. Applying the reasonable-competence standard, any supposed error was not a blatant error which no competent legal adviser would have made. Dyson LJ agreed. Sedley LJ added that the underlying claim based on the October 1985 advice was, in his view, not viable and that reasonable competence does not require lawyers to be omniscient or infallible.

• Court of Appeal (Civil Division) — Allowed the appellants’ appeal and rejected the finding that they had been professionally negligent: [2009] EWCA Civ 369.
• High Court (Queen’s Bench Division) — Underhill J found the appellants professionally negligent and apportioned contribution at 75:25 between them and Pritchard Joyce & Hinds: [2008] EWHC 20 (QB).