Fraser v Bolt Burdon Claims & Ors

A solicitor or barrister advising on settlement owes the client the ordinary professional duty to exercise the skill and care of a reasonably competent practitioner. The fact that settlement advice involves judgment, is given under time pressure, or later proves mistaken does not itself establish negligence.

The relevant question is whether the advice was outside the range of advice which reasonably competent practitioners could give on the evidence and legal issues available at the time. In assessing settlement advice, the court must evaluate the prospects and likely value of the underlying claim, including separate risks on liability and quantum, while recognising the value of certainty and the encouragement of settlements. A solicitor may rely on properly instructed counsel after applying independent judgment, but must reject advice which is obviously or glaringly wrong.

The claimant sued her former solicitors, Bolt Burdon Claims, alleging that they negligently advised her to accept £200,000 plus costs in settlement of her professional-negligence claim against Parlett Kent. The first and second third parties, counsel Robert Smith Q.C. and Charles Utley, were joined because Bolt Burdon relied on their advice.

The underlying claim concerned the lost value of an earlier medical-negligence action arising from treatment at St Bartholomew’s Hospital, together with alleged psychiatric and consequential losses. The claimant also complained about the preparation of the schedule of damages and the treatment of a possible post-traumatic stress disorder claim. The central issue was whether no reasonably competent solicitor or barrister could have advised acceptance of the settlement.

1. Disposition. The claims against Bolt Burdon were dismissed. The third-party claims against Mr Smith and Mr Utley were also dismissed.

2. The governing standard was the professional-negligence test stated in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. The practitioner must meet the standard of the ordinary skilled member of the relevant profession. A solicitor is judged as a solicitor and a barrister as a barrister. The standard is assessed by reference to knowledge available at the time, and a reasonably competent practitioner need not possess the highest expert skill.

3. The same principles applied to advice on settlement. Under Saif Ali v Sidney Mitchell & Co [1980] AC 198, Moy v Pettman Smith [2005] PNLR 426, Kelley v Corston [1998] QB 686, Griffin v Denise Kingsmill [2001] EWCA Civ 934 and Luke v Wansbroughs [2005] PNLR 2, settlements are encouraged and hindsight must be avoided, but judgment is not an abrogation of the duty to exercise reasonable skill and care.

4. The assessment required consideration of the underlying lost claim. Following Kitchen v Royal Air Force Association [1958] 1 WLR 563, the court had to value the lost chance by considering separately the prospects of establishing liability and the prospects of recovering each material head of loss.

5. The advice to accept £200,000 plus costs was within, and in the judge’s view well within, the range of advice reasonably competent practitioners could give. There were substantial risks concerning liability in the medical-negligence claim, the claimant’s credibility, the duration and causation of her symptoms, the proposed full-time jewellery-business earnings, and the legally and factually difficult psychiatric-injury claim. The value of certainty and the risk of recovering less after trial justified the advice.

6. A solicitor is generally entitled to rely on properly instructed counsel, but must apply independent judgment and reject advice which appears obviously or glaringly wrong. The issue did not determine the result because the solicitor’s own assessment coincided with counsel’s advice.

7. The complaints concerning the absence of a PTSD label, inclusion of the property claim, and failure to particularise modelling earnings did not establish negligence. The evidence and pleaded material addressed the substance of the alleged psychological condition, the property claim was included in accordance with the client’s wishes, and the modelling evidence was of little value.

First-instance judgment. No earlier appellate decision is stated in the judgment.