Ahmad v Wood & Anor

Professional negligence proceedings may consider whether competent legal advice would have produced a better litigation outcome. They become an abuse of process where they require the court to decide that the earlier court was wrong on the same evidence, including its assessment of credibility or documents. A claim may proceed where the alleged negligence caused relevant evidence not to be placed before the earlier court.

Damages are assessed by reference to the lost chance of obtaining the best reasonably achievable result. Losses flowing from the consequences of the order itself fall outside the scope of the solicitor’s duty where that duty concerned achieving the best result in the proceedings. A defective pleading should ordinarily be given a court-directed opportunity for amendment before being struck out.

The claimant brought professional negligence and breach of contract proceedings against his solicitor and solicitors’ firm concerning matrimonial proceedings. He alleged that inadequate advice, preparation and advocacy caused District Judge Khan to make a lump-sum order of £465,000 rather than an order of £150,000.

The defendants sought strike-out under CPR Pt 3.4 (2)(b), summary judgment under CPR Pt 24.2, and strike-out of the damages claim. The central issues were whether parts of the claim were an impermissible collateral attack on the matrimonial judgment, whether the pleaded losses were legally recoverable, and whether the remaining claim had a real prospect of success.

1. Collateral attack. The approach in Laing v Taylor Walton [2007] EWCA Civ 1146; [2008] PNLR 11 required an intense focus on the facts and consideration whether the proceedings involved unfairness or brought the administration of justice into disrepute. Paragraphs 33(i) and 33(ii) of the claim challenged District Judge Khan’s findings on the claimant’s honesty, obfuscation and surplus income by reference to the same evidence. They therefore constituted an impermissible collateral attack and were struck out as an abuse of process.
2. Paragraph 33(iii) was materially different. It alleged that fuller evidence should have been placed before the District Judge and that the outcome might then have differed. Determining that allegation did not require reconsideration of whether the earlier decision was correct on the evidence actually before the court. It was not an abuse of process.
3. Damages. Channon v Lindley Johnstone [2002] EWCA Civ 353; [2002] PNLR 41 established the legitimacy of assessing loss by reference to the chance of obtaining the best order reasonably likely to have been achieved. It did not decide that consequential losses were irrecoverable.
4. Nevertheless, applying South Australia Asset Management Corp v York Montague Ltd [1997] A.C. 191 and BPE Solicitors v Hughes-Holland [2017] UKSC 21; [2017] 2 WLR 1029, recoverability depended on the scope of the professional duty, independently of causation. The duty here was to exercise reasonable care to obtain the best reasonably achievable result in the matrimonial proceedings. The difference between the actual order and the order reasonably achievable fell within that scope; consequential losses flowing from the order actually made did not.
5. The damages claim was therefore legally untenable in its present form. Following In Soo Kim v Youg Geun Park & others [2011] EWHC 1781 (QB), the claimant was entitled to a court-directed opportunity to amend before strike-out. The summary judgment application failed because the properly reformulated claim had a real prospect of success.