Andrews & Ors v Messer Beg Ltd

On an application to strike out, the court assumes that the pleaded facts can be proved. The question is whether those facts disclose a legally recognisable claim with a realistic prospect of success. A short legal issue may be decided summarily, but a claim in an uncertain and developing area of law should be struck out only where it is certain to fail.

A barrister instructed through a solicitor does not ordinarily owe a general duty to advise on litigation funding. If the barrister gives funding advice, the duty is to exercise reasonable skill and care in the specific advice given. Giving advice on several occasions does not, without more, create a continuing duty to review funding throughout the litigation. A negligence pleading must identify the allegedly negligent advice, the advice that should have been given, the facts known or which should have been known, and ordinarily how correct advice would have changed the claimant’s position.

The Defendant, the former solicitors of the claimants, brought an additional claim against David Lowe QC under the Civil Liability (Contribution) Act 1978. The claim sought an indemnity or contribution if the claimants succeeded in their negligence and breach of contract claim concerning the funding of earlier group litigation.

Mr Lowe applied under CPR r.3.4(2)(a) to strike out the new particulars of additional claim as disclosing no reasonable grounds. The central issues were whether the pleaded facts could establish that Mr Lowe had assumed a general, continuing duty to advise on funding, whether he owed a more limited duty concerning specific funding advice, and whether the alleged negligence had been adequately pleaded.

1. Strike-out approach. The court assumed that the pleaded facts would be proved and asked whether they disclosed a legally recognisable cause of action with a realistic prospect of securing the relief claimed. A claim had to be more than merely arguable. A short point of law could be decided summarily, but where the law was uncertain and developing the claim should not be struck out unless it was certain to fail.
2. Scope of a barrister’s duty. A barrister instructed by a solicitor in actual or contemplated litigation ordinarily owed no duty to advise the client on funding unless specifically instructed to do so. If the barrister gave funding advice, he owed a duty to exercise the reasonable skill and care expected of a competent barrister in giving that specific advice. That did not, without more, impose a continuing duty to keep funding under review and advise on it as the litigation progressed.
3. Application to the pleading. The New PAC could not realistically establish the alleged general funding duty. However, there was a realistic prospect that Mr Lowe owed a duty to the Steering Committee, its represented members, and possibly later clients to exercise reasonable skill and care in the specific funding advice he gave. Whether advice given before October 2008 was given to RWP alone, and whether a duty was owed to later clients who relied on documents settled by Mr Lowe, required findings of fact and was unsuitable for summary determination.
4. Insufficient particulars. The New PAC did not identify any specific funding advice that was wrong, what advice should have been given, or the facts known or which should have been known that should have led to different advice. It also probably needed to plead that correct advice would have altered the claimants’ decisions and left them better off.
5. RWP chose not to seek permission to amend the New PAC again. The parties agreed an order striking out the additional claim.

First-instance decision. The judgment records an earlier strike-out decision by Fancourt J, [2018] EWHC 2692 (Ch), but the present court considered the replacement particulars and ordered the additional claim struck out.