Mervyn Lambert Plant Limited v Knights Solicitors (a firm)

A solicitor advising on prospective or ongoing litigation must take reasonable steps to ensure that the client receives an accurate assessment of the prospects of success, including materially adverse views expressed by counsel. The solicitor’s own assessment need not coincide with counsel’s, provided it is genuinely held, falls within the range of views open to a reasonably competent solicitor, and any material divergence is properly explained. Counsel’s views may be communicated orally or in writing. There is no separate rule requiring counsel’s advice always to be forwarded in writing. The question remains whether the solicitor acted as no reasonably competent solicitor would have acted in the circumstances.

The claimants, a plant hire company and its director, brought a professional negligence and breach of contract claim against their planning solicitors. They alleged that the defendant failed to advise them accurately about the prospects of challenging planning permission by judicial review, failed to pass on counsel’s reservations, and negligently pursued certain proposed grounds.

The parties agreed that the court should determine breach and causation, while leaving quantum and loss for a later stage if necessary. The central issues were whether the defendant’s advice and communications fell below the standard of a reasonably competent planning solicitor and, if so, whether any breach caused loss.

1. The claim was dismissed. The defendant had not acted negligently or breached its contractual duties to either claimant.
2. A solicitor’s duties in tort and contract substantially overlapped. The solicitor had to exercise the skill and care expected of a reasonably competent solicitor specialising in the relevant field, including taking reasonable steps to ensure that the client understood the progress and prospects of the litigation.
3. The duty could be breached either by adopting an assessment of prospects that no reasonably competent solicitor could have held, or by conveying a reasonable assessment, or relevant information, in a manner no reasonably competent solicitor would have used.
4. The fact that litigation ultimately failed, permission was refused, or another lawyer took a more pessimistic view did not establish negligence. Different views could reasonably be held by solicitors and counsel. Counsel’s views were relevant and ordinarily should be conveyed, but they were not necessarily determinative. A solicitor could rely on counsel’s advice unless it was obviously or glaringly wrong, while retaining an obligation to exercise independent judgment.
5. There was no rule requiring counsel’s views to be communicated in writing. Oral communication could suffice, depending on the nature of the advice and the circumstances. The relevant question was whether the method, timing and content of the communication met the standard of a reasonably competent solicitor.
6. On the facts, the defendant had acted reasonably in preparing protective judicial review proceedings while the status of the planning resolution and limitation position remained uncertain. It was entitled to rely on specialist counsel’s advice. The court also found that counsel’s reservations had, in substance, been conveyed to the director, and that the solicitor’s more optimistic views were genuinely held and within the range reasonably open to an experienced planning solicitor.
7. The court declined to determine causation hypothetically. Since breach had not been established, it would not have been meaningful to assume different facts and assess what the claimants might then have done.