Thomas & Anor v Albutt

A professional adviser is not negligent merely because litigation later fails, or because the adviser gives a view within the range of competent professional opinion. Advice must, however, address material litigation risks where the circumstances require it. In judicial review proceedings concerning a delayed challenge to planning permission, detailed evidence of prejudice may be important at the permission stage, particularly where extension of time is in issue. A claimant seeking damages for negligent advice must prove causation by showing what would probably have happened with competent advice; reliance alone is insufficient. A negligible improvement in prospects does not support an award of damages.

Mr and Mrs Thomas claimed damages from Mr Albutt, a barrister specialising in planning and administrative law. He had advised them while they resisted judicial review proceedings challenging planning permission for a caravan and camping site at their farm. The permission was ultimately quashed by Ouseley J on 27 January 2010 after the Usk Valley Conservation Group obtained an extension of time and permission to proceed.

The claim alleged negligent advice about prospects of success, compensation, and the evidence required at the permission and substantive hearings. The central issues were whether Mr Albutt’s advice fell below the required standard and, if so, whether it caused loss.

1. Outcome. The claim was dismissed on the merits. Mr Albutt was not negligent in advising on prospects of success or compensation, and was not negligent in advising on evidence for the substantive hearing.
2. Prospects of success. Advice on litigation prospects involves judgment and may fall within a range of competent opinions. Mr Albutt’s view that the Thomases had a strong case based on delay and prejudice, absent wrongdoing, was not negligent. He was not required in the circumstances to give a more detailed warning about litigation risk. The advice was given to solicitors who understood that litigation involved risk. The court considered the principles discussed in Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson, [2002] PNLR 300, Hermann v Withers LLP, [2012] PNLR 28, and Levicom International Holdings BV v Linklaters, [2010] PNLR 29, but found no breach.
3. Compensation. Mr Albutt correctly advised that compensation would follow a discontinuance order, but not the quashing of planning permission. An unclear email did not amount to negligent advice.
4. Permission stage. A competent barrister should have advised the Thomases to prepare evidence addressing the effect of delay, including financial and non-financial prejudice. The acknowledgment of service and the Hooker reports did not adequately establish the extent of prejudice. The failure to give that advice was negligent, though the additional evidence would have improved the prospects of resisting permission or an extension of time by only 5–10 per cent, which was negligible and caused no loss.
5. Substantive hearing and causation. Mr Albutt had adequately advised that evidence of both expenditure and income was important. The Thomases bore primary responsibility for failing to provide fuller financial evidence. Applying Levicom International Holdings BV v Linklaters, [2010] PNLR 29, reliance was insufficient; the question was what would have happened absent negligence. Even with better evidence, Ouseley J would probably have reached the same decision, and any improvement in prospects was negligible.