Warner v Penningtons (a firm) & Ors

Whether professional advice was negligent depends on what a reasonable reader in the relevant position would have understood from the words used. The document must be construed objectively, by reference to the whole document and the factual background that the writer and reader are taken to have known. Subjective evidence of what the actual readers understood is generally immaterial to meaning. Where the context is clear and does not require factual evidence, the issue may be determined summarily. An expert’s recommendation that funds be made available as a matter of priority to establish a care regime therefore conveyed advice to establish it before trial, even though the report also contained future costings.

Lawrence Warner brought a professional negligence claim against his former solicitors, alleging that his personal injury claim had been settled at an undervalue. The solicitors alleged, in turn, that Jacqueline Webb & Co and its care expert, Ms Watkins, were negligent in failing to advise that a support worker and case manager should be employed before trial or settlement.

Jacqueline Webb & Co obtained summary judgment in the High Court, where Griffith Williams J held that the relevant expert report advised that funds should be made available as a matter of priority and that a care regime should be established before trial. The solicitors appealed, contending that the report’s meaning required evidence and was reasonably arguable in their favour. The central issue was whether the report conveyed the alleged advice to a reasonable solicitor in the relevant position.

1. Appeal dismissed. The only remaining allegation against Ms Watkins was that she failed to advise that a support worker and case manager should be employed before trial or settlement. That allegation had no prospect of success.
2. The meaning of the report was an objective question of construction. It was for the judge to determine what a reasonable solicitor in Mr Mather’s position would have understood from the words used. The subjective understanding of Mr Mather or the barristers who read the report was immaterial. The report had to be read as a whole and against the factual background which the writer and reader were taken to know.
3. The relevant context was sufficiently clear without evidence. Both the solicitor and the care expert were experienced in serious personal injury litigation. Liability had been admitted, an interim payment could have been obtained to establish care arrangements, and the trial had not yet been fixed when the report was prepared. The judge below was therefore in as good a position to determine the report’s meaning as a trial judge.
4. Read in that context, the recommendation in paragraph 3.07 that funds should be made available as a matter of priority to establish a new care regime conveyed, with reasonable clarity, advice to establish the regime without delay and in any event before trial. The provision of future costings did not detract from that advice. Nor did the absence of an express reference to a further assessment, or to obtaining an interim payment, make the advice negligent; the latter was a matter for the solicitor.
5. Lady Justice Smith accepted that the advice could have been expressed more clearly, but held that this did not create a viable negligence claim. Lord Justice Rix and Lord Justice Keene agreed. The order was: appeal dismissed.

• Court of Appeal (Civil Division): Appeal by Penningtons against summary judgment for Jacqueline Webb & Co dismissed; Lord Justice Rix and Lord Justice Keene agreed with Lady Justice Smith’s judgment.
• High Court, Queen’s Bench Division: Griffith Williams J granted summary judgment for Jacqueline Webb & Co.