Michael Partridge & Anor v Healys LLP

A claim may be struck out or summarily dismissed where, on the pleaded case and material properly considered on the application, it has no realistic prospect of success. The court must avoid a mini-trial, but may assess factual assertions critically against contemporaneous documents and decide a short point of law where the evidence is sufficient.

A professional-negligence claim based on loss of a chance must identify the breach, causation and the lost opportunity with adequate particularity. A claim duplicating issues already being determined in another part of the High Court may constitute an abuse of process.

The claimants sued their former solicitors for negligence, breach of contract and breach of fiduciary duty arising from the conduct and settlement of earlier professional-negligence proceedings. They alleged failures concerning potential claims against property valuers, consequential losses, advice at mediation, termination of a conditional fee agreement and resulting costs and funding difficulties.

The defendant applied to strike out the claim or obtain summary judgment. A related dispute concerning termination of the conditional fee agreement and fees was already proceeding in the Senior Courts Costs Office. The central issues were whether the pleaded claims had real prospects of success and whether any part duplicated the SCCO proceedings.

1. Applicable approach. The principles in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 applied. The court had to distinguish a realistic claim from a fanciful one, avoid conducting a mini-trial, consider reasonably available evidence, and decide a short legal or construction point where the material was sufficient.
2. The standard of care was that of a reasonably competent legal practitioner, or reasonably competent specialist where appropriate. A loss-of-chance claim required a real and substantial, rather than negligible, prospect of recovering something of value, including a settlement.
3. Valuation claim. The court could not finally determine on a summary basis whether advice that valuers owed no duty of care was negligent. The scope of the principle in Smith v Eric S Bush [1990] 1 AC 831 depended on the character of the transaction. It applied to a dwelling house of modest value, but not necessarily to unusual or expensive property or commercial transactions. The claim nevertheless failed for want of pleaded causation. The claimants had not explained how omitting the valuation claim caused a better settlement opportunity to be lost.
4. Consequential loss and experts. The contemporaneous correspondence showed repeated requests for evidence supporting the alleged payment and consequential losses. The pleaded case did not address that evidence or adequately identify the expert evidence said to be required. There was no real prospect of establishing that the defendant caused the alleged lost settlement opportunity.
5. Conflict and termination. Giving non-negligent settlement advice which led to termination of the retainer was not, without more, an actionable conflict. The allegation was also inadequately pleaded. The termination issue was already being determined in the SCCO; allowing it to proceed concurrently would risk inconsistent judgments and was abusive. The claim for professional fees also had no real prospect of success insofar as it was outside the SCCO proceedings.
6. The court declined to permit amendment because it was unclear what viable amended case could be pleaded. The claim was struck out. Consequential orders were reserved.