Torrance v Bradberry (Rev 1)

A barrister’s professional negligence is established only where the act or omission was blatantly wrong or quite plainly unjustifiable. The court must allow for the pressure and limited time available during a criminal trial, while applying the same legal standard to decisions made outside court in a more forgiving or less forgiving context as the circumstances require. A claimant alleging negligent conduct of litigation must also prove causation. Where the loss alleged is a lost chance of acquittal, the claimant must show a real and substantial chance, assess the position ex ante, and compare the chance before and after the breach. The claim failed because the defendant’s decisions were within the range of reasonable professional judgment and any potential breach did not cause a real and substantial loss of chance.

The claimant had been represented by the defendant at a rape trial. He was convicted and sentenced to six years’ imprisonment. The Court of Appeal, Criminal Division subsequently allowed his appeal because bad character evidence concerning his co-accused had wrongly been admitted, and the claimant was later acquitted at retrial.

The claimant brought a professional negligence claim alleging failures in preparation, advocacy, objections to the co-accused’s bad character evidence, severance, witness investigation, advice on appeal and attendance at the end of the trial. The principal issues were whether the defendant had acted below the required standard and, if so, whether the claimant had lost a real and substantial chance of acquittal.

1. Claim dismissed. Judgment was entered for the defendant.
2. The applicable standard was that expected of a reasonably competent junior counsel of the relevant seniority and experience, holding herself out as competent to conduct a case of that type and complexity. A claimant must show that the barrister’s act or omission was blatantly wrong or quite plainly unjustifiable. Courts must distinguish negligent errors from reasonable errors of judgment, making allowance for the pressure, uncertainty and time constraints of advocacy.
3. The defendant’s overall strategy, including using misidentification as a principal line of defence while also challenging inconsistencies, delay in complaint and credibility, was reasonable. Her conduct was not rendered negligent merely because another advocate might have adopted a different strategy.
4. The defendant was not in breach by failing to secure severance, oppose the adjournment of the first trial, or add submissions against the co-accused’s bad character evidence. Severance had very poor prospects. The public interest in a single trial and the availability of proper jury directions weighed strongly against it. The failure to oppose the adjournment, even if less active advocacy might have been preferable, was not blatantly wrong in the fluid circumstances.
5. The remaining allegations, including failures concerning counselling records, prior inconsistent statements, the witness Lisa Wilment, evidence from KL and ML, character evidence and attendance on the final day, either did not occur, involved reasonable judgment, or were incapable of causing the alleged loss.
6. For loss of a chance, the claimant’s own conduct is assessed on the balance of probabilities, while the conduct of witnesses, judge or jury is assessed on a loss-of-chance basis. The claimant must establish a real and substantial chance, greater than a merely negligible chance. The comparison is between the chance of acquittal at the start of the relevant trial and the chance after the alleged breach. A multiplicative approach may be appropriate where independent contingencies must each be established.
7. Even assuming the failure to oppose the adjournment was negligent, the calculated loss of chance was only about 3–4 per cent and therefore was not a real and substantial chance. The claim consequently failed both on breach and causation.

The judgment described the earlier criminal proceedings. The Court of Appeal, Criminal Division allowed the claimant’s criminal appeal on 27 February 2015: [2015] EWCA Crim 356. The claimant was subsequently acquitted at retrial. The present professional negligence claim was determined at first instance by the High Court.