McFaddens (a firm) v Platford

A barrister’s professional standard is that of an ordinarily skilled advocate competent to handle the type and weight of work. Liability does not arise merely because a judgment, honestly and carefully made in difficult circumstances, later proves wrong. A solicitor may generally rely on properly instructed counsel, but must exercise independent judgment and reject advice that is obviously or glaringly wrong.

Where lawyers have a genuine concern that a litigant may lack capacity because of mental illness, the issue-specific capacity test requires consideration of the litigant’s ability to understand, decide and implement what is required in the proceedings. The lawyers may be obliged to put the concern before the court. On the facts, the advice and application were not negligent, causation was independently broken by the litigant’s failure to attend court and medical examination, and the underlying claim had no real or substantial prospect of success.

McFaddens, solicitors, claimed an indemnity or contribution from Graham Platford, counsel, in respect of sums paid to compromise a potential negligence claim arising from an application concerning the capacity of their former client, Mr Cunningham, to conduct litigation.

The application sought an adjournment of the trial of proceedings against architects and raised a concern that Mr Cunningham might be a patient requiring a litigation friend. The application led to an order requiring medical examination. Mr Cunningham did not attend the hearing or the examination, and his underlying claim was struck out. The order was later revoked and the costs of the applications were paid.

The issues were whether Mr Platford’s advice and the form of application fell below the professional standard, whether the solicitors were entitled to rely on the advice, whether the application caused recoverable loss, and whether the underlying litigation had a real or substantial chance of success.

1. Claim dismissed. The advice to place the capacity issue before the court was not negligent. The appropriate standard was that of a barrister of ordinary skill and competence who was competent to handle this type and weight of work. The court rejected the suggestion that the standard was defined by the barrister’s seniority, although the unusual circumstances and urgency were relevant.
2. The capacity issue was governed by the approach in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511. The questions were whether the person could manage his affairs, whether the answer was the same for the specific litigation issue, and whether any incapacity arose by reason of mental illness. Managing affairs included making decisions and, with appropriate assistance, carrying them out and giving proper instructions.
3. The lawyers’ concern was not merely that Mr Cunningham had made imprudent decisions. The evidence raised a genuine issue about his ability to understand and conduct the litigation by reason of mental illness. The solicitors therefore had an independent duty to assist the administration of justice and not mislead the court. It was not open to them simply to apply to come off the record once they had unresolved capacity concerns.
4. The solicitors were not bound to follow counsel’s advice. They had an independent duty to provide full factual instructions and to form their own judgment. On the facts, they had supported the factual basis of the advice, considered the position, and reasonably acted on it. The decision to make an inter partes application rather than an ex parte application was difficult but not negligent.
5. In any event, causation failed. Mr Cunningham had been notified of the hearing but did not attend, and later refused to attend the court-ordered medical examination. Those acts broke the chain of causation. The underlying claim also had no real or substantial chance of success on the evidence and procedural history then existing. No contribution order arose.