Cotterhill Hitchman Solicitors LLP v Guest

A court should not determine a defence based on alleged professional negligence where the allegation was neither pleaded nor clearly notified before the evidence was complete. Procedural fairness requires the opposing party to know the case it must meet and to have a proper opportunity to prepare evidence, call relevant witnesses, produce documents and cross-examine. If a new issue emerges during a trial, an adjournment may be appropriate, but only on the basis of a clearly stated case to which the other party can respond.

A former client defended a solicitors’ claim for unpaid costs of £44,320.84, alleging matters including an agreed fee cap, coercion, collusion and improperly procured consent to settle a boundary dispute. The County Court gave judgment for the solicitors on 10 September 2014.

Permission to appeal was granted on the narrower question whether the solicitors had negligently failed to advise at an earlier stage that the boundary claim had poor prospects, causing avoidable costs. The Court of Appeal first considered whether that issue had properly been before the court below and whether it could fairly have been determined at trial.

1. Appeal dismissed. The application was granted, but the judgment for the solicitors was upheld.
2. The alleged negligent failure to advise at an earlier stage had not been pleaded in the defence or raised in the appellant’s witness statement. The judge himself raised concerns after the evidence had concluded, and the solicitors’ closing submissions confirmed that they had not come prepared to meet that case.
3. The issue could not fairly be determined without further evidence. The solicitors would have been entitled to call the solicitors who had handled the matter, the trial counsel, and to address relevant documents and cross-examine the appellant specifically on the allegation. Further, the proper period during which advice should allegedly have been given was unclear and had developed during the hearing.
4. Although the judge’s reasoning conflated some of the solicitors’ submissions, his conclusion was correct when read with the full background and written closing submissions. The permission decision had been made without that material context.
5. The judge might have adjourned the trial so that the issue could be properly addressed. That course would have required a clearly stated case and a fair opportunity for the solicitors to respond.

• Court of Appeal (Civil Division): on 22 November 2016, the court dismissed the appeal and upheld the County Court judgment for the solicitors. The court’s citation is [2016] EWCA Civ 1455.
• Birmingham Civil Justice Centre: HHJ Robert Owen QC gave judgment for the solicitors on 10 September 2014 for the unpaid costs and disbursements.