BPC Hotels Ltd & Ors v Wright Hassall LLP & Anor

A solicitor or barrister is required to perform the tasks falling within the agreed retainer and to give advice reasonably incidental to those tasks. The scope of any incidental duty depends on all the circumstances, including the client’s experience and the nature of the instructions. Legal advisers are judged by the standard of reasonably competent practitioners, but are not expected to identify every theoretical claim or devise a case wholly unrelated to the instructions. A barrister is not obliged to plead an arguable point which, in professional judgment, is likely to fail. On the evidence, the proposed claim depended on a new and commercially implausible strategy which was outside the defendants’ retainers and had no real prospect of success.

The claimants brought professional-negligence claims against their former solicitors, Wright Hassall LLP, and barrister, Max Mallin. The claims concerned advice given in 2009 about possible claims against the claimants’ former solicitors, Brooke North, arising from the financing and construction of a hotel development.

The defendants applied for summary judgment under CPR 24.2 and/or 3.4. The central allegation was that they should have identified and pleaded an alleged consensual “Exit Route Agreement” strategy under which the bank would have completed the development while allowing the claimants to refinance. The issue was whether that strategy fell within the defendants’ retainers or was reasonably incidental to their instructions, and whether its omission could arguably amount to professional negligence.

1. Applications granted. The claims against both defendants were dismissed under Civil Procedure Rules 1998 CPR 24.2. The court was satisfied that the applications did not require a mini-trial and that no relevant further evidence was reasonably expected.
2. The governing principles were those summarised in Minkin v Landsberg [2015] EWCA Civ 1152. A solicitor’s contractual duty is to perform the tasks instructed and agreed. Advice reasonably incidental to those tasks may also be required, assessed in the circumstances of the case. Similar principles applied to the barrister. The standard of care was that of a reasonably competent member of the relevant profession, as illustrated by Hall v Simons [2002] AC 615 and Pritchard Joyce and Hinds v Batcup [2009] EWCA Civ 369.
3. MM’s instructions concerned specific proposed negligence claims against Brooke North. They did not require general advice or the identification of additional claims. The alleged Exit Route Agreement was not reasonably incidental to those instructions. It was materially different from the pleaded default strategy and depended on a consensual alignment of interests which was inconsistent with the claimants’ position in 2009.
4. Even if the retainer had been wider, it was unarguable that a reasonably competent barrister should have identified the proposed strategy. The legal adviser was not required to devise a wholly new case which no one had suggested and which was inconsistent with the available factual presentation. Nor was a barrister obliged to plead an arguable point likely to fail: Shirley v D J Freeman [2001] All ER (D) 145, citing McFarlane v Wilkinson [1997] PNLR 578.
5. The proposed strategy also lacked a real prospect of causation. The asserted alignment between the claimants and the bank was untenable, and there was no evidential basis for a substantial prospect that the bank would have entered the agreement instead of appointing receivers.
6. WH’s position was no better or worse than MM’s. The pleaded retainers and alleged breach were materially the same, and there was no arguable basis for treating the instruction of MM or the absence of specialist advice as a separate viable claim.