Dowling v Griffin

A solicitor is not negligent merely because, with hindsight, a different procedural application might have been conceived. Where the legal position is genuinely uncertain, and authority from two High Court judges supports the view that the court lacks jurisdiction to order insurance disclosure under Civil Procedure Rules 1998 Part 18, failure to pursue an untested route may fall within reasonable competence.

Negligence and causation must be proved on the evidence. Speculation that an opposed application would have succeeded, been heard in time, and prompted notification to insurers cannot establish loss. An unpleaded implied term and injunction argument, unsupported by evidence or findings, cannot supply the missing causal link.

Alan Phillips Associates Ltd agreed to provide architectural services for the Dowlings’ development project. After the Dowlings brought a negligence counterclaim, the company’s insurer later avoided the policy because the claim had not been notified promptly, and the company became insolvent.

The Dowlings sued their solicitors, Bennett Griffin, alleging that they should have obtained disclosure of insurance arrangements or sought an injunction requiring notification of the claim. Mr Kevin Prosser QC rejected the claim. Permission to appeal was narrowed to the alleged failure to seek such relief. The central issues were whether the omission fell below the standard of a reasonably competent solicitor and whether it caused recoverable loss.

Lord Justice Lewison delivered the judgment, with which Lord Justices McFarlane and Sullivan agreed. The appeal was dismissed.

1. Insurance disclosure. The relevant legal position was unsettled. Cox v Bankside Members Agency Ltd had suggested that insurance arrangements did not relate to matters in issue. In Harcourt v FEF Griffin [2007] EWHC 1500 (QB), Irwin J had taken a broad view of Civil Procedure Rules 1998 Part 18. In West London Pipeline and Storage Ltd v Total (UK) Ltd [2008] EWHC 1296 (Comm), David Steel J rejected that approach and held that the court had no jurisdiction under Part 18 to order the information sought. XYZ v Various [2013] EWHC 3643 (QB) followed that view, while recognising only a limited case-management route under CPR Part 3.12(m). Against that background, a solicitor could not be negligent for taking the view that the court lacked power to order disclosure, particularly where two High Court judges had reached that conclusion after argument.
2. Causation. The relevant insurance year ended on 23 April 2004. The Dowlings did not establish that an application would have been made, contested, heard and determined before that date, or that it would have caused Mr Phillips to notify insurers. The appellate court could not make a favourable factual finding which had not been sought or made below and which was contrary to the correspondence and the trial judge’s findings.
3. Implied term and injunction. The alleged term requiring prompt notification was not pleaded, was not put to the solicitor in cross-examination, and was not argued at trial. There was no evidence that the term had been breached, as would have been necessary for a mandatory injunction. Disclosure of the policies would not itself have solved the problem because the policies were claims-made policies and the central difficulty was deliberate non-notification.
4. The necessary elements of breach and causation were therefore absent. The appeal was dismissed.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 1545; appeal dismissed.
• Chancery Division (Mr Kevin Prosser QC) — rejected the Dowlings’ negligence claim against Bennett Griffin; no citation for the decision was stated.