Dunhill v W. Brook & Co. (A Firm)

Professional negligence in litigation advice is judged by the information and risks reasonably available when the advice was given. A later outcome, or the fact that another competent practitioner might have acted differently, does not establish breach.

The advice must be outside the range of competent professional judgment, in the sense that no reasonably well-informed and competent practitioner could have given it. Where a trial judge has evaluated the lawyer’s contemporaneous assessment, an appellate court should not substitute its own view unless compelled. These principles apply to risk-based settlement advice on liability and quantum.

Following a road accident, Joanne Dunhill’s personal injury claim was settled for £12,500 after counsel assessed the risks of proving liability and the provisional value of the claim. The settlement was later set aside in separate capacity proceedings, and the underlying claim was ultimately compromised on more favourable terms.

Ms Dunhill then sued W. Brook & Co. and Justin Crossley, alleging that the recommendation to accept the settlement was negligent. Elisabeth Laing J dismissed the claims after a trial limited to breach of duty: [2016] EWHC 165 (QB). The appeal concerned whether counsel’s assessment of liability and quantum, and the solicitors’ support for it, fell below the professional standard.

1. Appeal dismissed. The Court of Appeal unanimously upheld Elisabeth Laing J’s dismissal of the negligence claims. Underhill LJ and Leggatt LJ agreed with the judgment of Sir Brian Leveson P.

2. The applicable standard was that of a reasonably competent practitioner in the personal injury profession. The court relied on Hall (Arthur JS) & Co (a firm) v Simons [2002] 1 AC 615, applying Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, and on Saif Ali v Sidney Mitchell & Co [1980] AC 198. A professional error is actionable only where it is one that no reasonably well-informed and competent practitioner could have made.

3. The assessment had to be made by reference to the evidence and risks known on 7 January 2003. The fact that another solicitor or barrister might have acted differently, or that later events showed the claim to be worth more, did not establish negligence. The court applied the approach in VG v Denise Kingsmill [2001] EWCA Civ 934, Moy v Pettman Smith (a Firm) [2005] 1 W.L.R 581 and Pritchard Joyce & Hinds (A Firm) v Batcup [2009] P.N.L.R 28.

4. Mr Crossley was entitled to regard the absence of the claimant’s son as a serious setback, to assess a real risk of complete failure on primary liability, and to advise settlement. An adjournment for the missing witness was unlikely to succeed because there was no satisfactory explanation or assurance of attendance. An adjournment to obtain quantum evidence was still less justified in a trial listed for liability only.

5. On quantum, counsel was entitled to do the best possible with the provisional medical evidence available in a legally aided split trial. His reliance on Mr Ramnani’s reports and Ms Greenan’s provisional assessment, and his failure to negotiate provisional damages for a low epilepsy risk, were not shown to be outside competent professional judgment. The appellate court applied the restraint described in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26.

6. Hickman v Blake Lapthorn [2005] EWHC 2714 was distinguished. It was a materially different, fact-specific settlement case and provided no general precedent for the present assessment.

7. The court expressed concern that Mr Crossley should have contacted the responsible partner and checked whether further medical evidence had arrived, but concluded that this would not have changed the substantive approach. The solicitors’ liability was parasitic on counsel’s liability, so their separate issue did not arise. The court nevertheless observed that sending a trainee to accompany properly instructed counsel at a split trial may fulfil the solicitor’s duty if a solicitor with conduct of the case is available when needed.

8. The court also warned that practitioners should remain alert to capacity issues where serious head injuries have been sustained. That observation was not a ground of the decision.

1. Court of Appeal (Civil Division): appeal dismissed. The court upheld the High Court’s conclusion that neither counsel nor the solicitors had acted negligently.
2. High Court (Queen’s Bench Division): Elisabeth Laing J dismissed the negligence claims after the breach-of-duty trial: [2016] EWHC 165 (QB).