Dunhill v W Brook And Co & Anor

A professional negligence claim arising from advice to settle litigation must be assessed against the standard of a reasonably competent practitioner, in the context confronting the adviser at the time. Settlement advice given at trial may involve judgment under acute litigation risk and is not negligent merely because it later proves mistaken. A solicitor may ordinarily rely on properly instructed counsel, but must exercise independent judgment and reject advice that is obviously or glaringly wrong. Where a claim is subject to a liability-only split trial, provisional information about quantum does not necessarily prevent a reasonable full and final settlement. Evidence that a claimant or witness had been drinking may be relevant to the reliability and explanation of the evidence, although it does not itself increase blameworthiness.

The claimant alleged that the defendant solicitors and counsel negligently managed her personal injury claim arising from a serious head injury and advised her to accept £12,500 in full and final settlement at a liability-only trial in January 2003. She alleged, among other matters, that the defendants overstated the risks on liability and contributory negligence, failed to appreciate the seriousness of the medical evidence, failed to consider provisional damages for epilepsy, and failed to obtain or use further neuropsychological evidence.

The settlement was later set aside in related proceedings because the claimant lacked capacity, and the underlying claim was subsequently compromised on an apportionment of liability. This trial concerned breach of duty only. The central questions were whether counsel’s settlement advice was negligent and, if so, whether the solicitors were independently liable.

1. Standard of care. The solicitors and counsel owed the claimant the duty to exercise the skill and care of reasonably competent practitioners in the relevant professional field. The use of a trainee did not reduce the solicitors’ standard. An error of judgment is negligent only if it was outside the reasonable courses of action available to competent practitioners. The circumstances in which advice is given, including advice at the door of the court, are important.
2. Assessment of liability and settlement. Counsel was entitled to regard the absence of the claimant’s principal witness as a serious setback. Without that evidence, the claim might fail because the claimant would bear the burden of proving negligence. The evidence of the defendant’s witnesses created material litigation risk, and a significant finding of contributory negligence was reasonably foreseeable. Counsel was not negligent in advising settlement, or in concluding that an adjournment was unlikely to succeed because there was no satisfactory explanation for the witness’s absence or assurance of future attendance.
3. Quantum and medical evidence. The uncriticised decision to order a split trial meant that the evidence on quantum was necessarily provisional at the liability hearing. Counsel was entitled to rely on the broad conclusions in the available medical evidence, including the description of a fairly severe injury followed by a good recovery. He was not negligent in failing to obtain Dr Zawadski’s report, which had been summarised by the medical expert, or Mr Morton’s report, which had only reached the solicitors shortly before trial and was principally being sought to address attendance and capacity to give evidence.
4. Provisional damages and other losses. The risk of epilepsy did not make a full and final settlement negligent. The risk had diminished, no seizures had occurred, and the defendant’s lawyers would probably not have agreed to a different basis of settlement. The available schedule did not identify substantial continuing losses, and there was no evidence that residential rehabilitation would not be NHS-funded.
5. Solicitors’ liability and outcome. If counsel’s assessment was reasonable, there was no basis for finding the solicitors negligent on the same matters. Alternatively, if counsel had been negligent, the solicitors would also have been negligent in sending an inexperienced trainee to court who could not reasonably detect the error. The claims against both defendants were dismissed.

The judgment is a first-instance decision. The judgment records related proceedings concerning the underlying personal injury claim, including Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, but does not state an appellate history for this professional negligence claim.