Vitalijus Dziugys v Ersan and Co Solicitors Ltd

A solicitor must exercise the reasonable care and skill expected of a reasonably competent practitioner, having regard to the scope of the retainer and the standards of the relevant profession. A mistake does not itself establish negligence, and the assessment must avoid hindsight. Reasonable competence does not require exceptional ingenuity in litigation tactics or evidence gathering.

For causation, the claimant must prove on the balance of probabilities what he would have done if competently advised. Outcomes dependent on what others would have done are assessed as a loss of chance. The chance must be real and substantial rather than speculative.

The claimant instructed the defendant solicitors to conduct a personal injury claim arising from a road traffic accident. The underlying claim was dismissed after a liability trial, and the claimant was ordered to pay costs.

He alleged that the defendant had negligently failed to identify defects in witness statements, obtain further evidence, amend the case properly, intervene during cross-examination, advise adequately about an appeal and handle the case file correctly. Breach of duty and causation were tried as preliminary issues.

1. Duty of care. The defendant owed a duty to exercise reasonable care and skill in matters within the retainer, namely pursuing the personal injury claim. The duty extended to advice about an appeal and subsequent handling of the client file. The defendant was vicariously liable for breaches by its staff.
2. Applicable standard. The standard was that of a reasonably competent solicitor, assessed without hindsight and by reference to the circumstances existing at the time. The mere fact that a decision or omission later appeared mistaken did not establish negligence. A solicitor was not required to display exceptional ingenuity in evidence gathering or litigation tactics.
3. Alleged pre-trial breaches. It was reasonable for the defendant, instructed shortly before trial, to rely substantially on the work of the previous solicitors. The absence of wet-ink statements, the failure to notice the absence of a printed name beneath signatures, the absence of tachograph records and the absence of evidence from the driver of another vehicle did not, on the facts, amount to breaches of duty. The available evidence was sufficient and the claimant had raised no relevant concerns before trial.
4. Conduct at and after trial. Counsel and the defendant acted correctly in not intervening unexpectedly during cross-examination. The advice that an appeal had no reasonable prospect of success was appropriate because the underlying judge had made extensive findings of fact and assessed the witnesses. Sending the file to the ATE insurer was reasonable and in the claimant’s interests, although consent should have been sought and a copy retained; those oversights did not amount to breaches on the pleaded case. There was no proof that documents had been destroyed or that the defendant had improperly withheld or misrepresented the location of the file.
5. Causation. The claimant failed to prove that any alleged breach caused the loss of the underlying claim or a successful appeal. The witness statement was only a small part of the underlying judge’s reasoning; the photographs would not have altered the findings; the possible effect of tachograph records and evidence from the other driver was speculative; and no real and substantial chance of a successful appeal was established.
6. Disposition. Every aspect of the claim failed on breach and causation. The claim was dismissed.