Moorjani v Kilcoyne (Rev 1)

A professional-ne negligence claim cannot be used to relitigate findings made in earlier proceedings where the claimant had a full opportunity to contest the issues. Such a claim is an abuse of process if it amounts to a collateral attack on the earlier judgment.

Advocates must meet the standard of a reasonably competent advocate of the relevant seniority. Decisions about the selection and presentation of evidence, concessions and cross-examination are ordinarily matters of professional judgment. Hindsight or an arguable alternative approach does not, without more, establish negligence. Claims with no real prospect of success may be summarily dismissed.

The claimant sued his former barrister over advocacy in two earlier property-related claims. In the first, claims against Durban Estates were tried before HHJ May QC and later considered by the Court of Appeal. In the second, claims against the owners of the flat above were settled, with no order as to costs.

The claimant alleged that the defendant had presented evidence, advanced submissions, made a concession and conducted cross-examination inadequately. He claimed that better advocacy would have produced higher damages and more favourable costs outcomes. The defendant applied under CPR 3.4(2) to strike out the claim and alternatively under CPR 24.2 for summary judgment.

1. Disposition. The court struck out the allegations amounting to collateral attacks on the findings of HHJ May QC and the Court of Appeal. The remaining allegations were summarily dismissed because they had no real prospect of success.
2. Under CPR 3.4(2), a statement of case may be struck out where it discloses no reasonable grounds or is an abuse of the court’s process. A claim is an abuse where it seeks to mount a collateral attack on a final decision reached after the claimant had a full opportunity to contest it: Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The distinction is between independent negligence by a lawyer and an attempt to relitigate the earlier case on the same material: Taylor Walton v Laing [2007] EWCA Civ 1146.
3. The summary judgment test under CPR 24.2 requires a real or realistic prospect of success, meaning more than a merely arguable case, and no other compelling reason for trial. The court must avoid a mini-trial but may consider the evidence before it and evidence reasonably expected to be available at trial. Caution is appropriate in developing areas of law.
4. The defendant’s duty was to exercise the skill and care expected of a reasonably competent junior counsel of his seniority and experience: Moy v Pettman Smith [2005] 1 WLR 581. Advocacy involves difficult decisions made under pressure. A mere error of judgment, or the fact that another approach might with hindsight have been preferable, does not amount to negligence. The court applied the reasoning in Arthur JS Hall v Simons [1994] Ch 205 and FirstCity Insurance Group v Orchard [2003] PNLR 9.
5. The complaints concerning habitability, the insurance claim, the level and period of damages, the additional repairs, cross-examination, post-judgment review, interest and costs either sought to reopen earlier decisions or concerned reasonable forensic judgments. The Wahab allegations were also vague and inadequately particularised. The claim was therefore unmeritorious and dismissed to the extent it had not already been struck out.

The judgment describes earlier proceedings in the claimant’s related claims. HHJ May QC decided the Durban claim on 31 July 2013. The Court of Appeal later varied the damages and costs outcome in Moorjani v Durban Estates [2015] EWCA Civ 1262. This claim was brought against the barrister who acted in those proceedings.