Andrews & Anor v Messer Beg Ltd

A barrister instructed in litigation does not automatically owe the same general duty as a litigation solicitor to advise clients on funding. A co-extensive duty cannot be inferred merely from the barrister’s involvement in the litigation or from instructions to act after a client has funded participation.

A possible duty based on voluntary assumption of responsibility must be properly pleaded. The pleading must identify the acts said to constitute the assumption, the persons to whom the duty was owed, its scope, and the advice said to have been negligent. Summary judgment should not determine funding availability through a mini-trial where the issue requires evidence at trial.

The underlying proceedings concerned claims by numerous individuals against Messer Beg Ltd, formerly RWP Solicitors Ltd, for allegedly negligent advice about funding group litigation against banking institutions. Messer Beg issued a Part 20 claim seeking an indemnity or contribution from David Lowe QC if the claimants succeeded against it.

The Part 20 claim largely mirrored the claim against the solicitors. It alleged that Mr Lowe should have advised on conditional fee and after-the-event insurance funding, or warned that the fighting-fund strategy was likely to fail. It also alleged inadequate delegation of work to junior counsel. Mr Lowe applied to strike out the amended particulars or alternatively for summary judgment under Part 24.2.

1. Disposition. The amended particulars of claim in the Part 20 claim were struck out. Messer Beg was permitted to consider serving replacement particulars properly pleading the case that had emerged in argument, failing which it would have to withdraw the Part 20 claim.
2. A barrister does not have the same general duty as a retained litigation solicitor to advise clients on the funding of litigation. Messer Beg could not simply plead that Mr Lowe owed a co-extensive duty because the solicitors were alleged to owe such a duty.
3. A duty based on voluntary assumption of responsibility might be arguable. However, the pleading did not identify adequately the acts by which Mr Lowe assumed responsibility, the persons to whom the responsibility was owed, or the scope of the alleged duty. The documents relied on appeared principally to show advice to the solicitor about implementing and promoting an existing funding strategy.
4. The court declined to decide under Part 24.2 whether conditional fee and after-the-event funding could realistically have been obtained. That issue involved disputed evidence and could only properly be resolved at trial. Conducting a mini-trial on evidence from one side would have been wrong in principle.
5. The claim for contribution could succeed only to the extent that Mr Lowe had caused the same loss for which Messer Beg became liable to the claimants, pursuant to section 1 of the Civil Liability Contribution Act 1978. There was no separate claim against him for damages based on negligent advice to Messer Beg.
6. The allegation that Mr Lowe failed to delegate sufficiently was also inadequately particularised. It identified no work that should have been delegated or explained how delegation would have avoided the alleged loss, and was struck out.