Powis Street Estates (No 3) Limited v Winston & Strawn London LLP & Anor

A professional negligence claim against counsel for failing to plead an alternative case may be summarily dismissed where the alleged omission involved an evaluative judgment and the claimant cannot show a realistic prospect of proving that no reasonably competent barrister of comparable seniority and experience would have acted similarly.

A barrister is not required to plead every arguable point or select the course that later appears best. The court must assess reasonable competence, not perfection or what it would itself have done. Summary judgment is appropriate where the issue can safely be determined on the available material without a mini-trial.

Powis brought a professional negligence claim against its former solicitors and leading counsel, Mr Pilling KC, concerning the drafting of particulars of claim in earlier proceedings against solicitors and property agents. It alleged that Mr Pilling should have pleaded additional claims against the property agents concerning the duration and operation of an overage provision.

Mr Pilling applied for summary judgment. He accepted that the pleaded facts had to be assumed to be true for the application. The issues were whether Powis had a realistic prospect of proving that no reasonably competent barrister of comparable standing would have omitted the proposed claims, and whether the matter required a trial.

1. Summary judgment. The court applied the test in CPR r.24.3. The claim had to have a realistic, rather than fanciful, prospect of success, and the court had to consider whether any other compelling reason required a trial. A mini-trial was impermissible, but the court could decide a short legal or evaluative issue where the evidence was sufficient and the answer was clear, applying Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch).
2. Applicable professional standard. Subject to the former immunity rules, counsel owed the ordinary professional duty to exercise reasonable skill and care. Liability required an error that no reasonably well-informed and competent barrister could have made. It was insufficient that the decision was wrong or that another competent barrister might have chosen differently. The standard was not one of omniscience or infallibility: Saif Ali v Sydney Mitchell & Co [1980] A.C. 198; Matrix Securities Ltd v Theodore Goddard [1998] P.N.L.R. 290; and Pritchard Joyce & Hinds (a firm) v Batcup [2009] EWCA Civ 369.
3. Choice of pleading. Deciding whether to plead a cause of action was an exercise of professional judgment. A barrister was not obliged to plead every point with some prospect of success. The question was whether no other reasonably competent barrister, acting with ordinary care and possessing comparable experience, would have omitted the point: McFarlane v Wilkinson [1997] P.N.L.R. 578.
4. Application. The material available to Mr Pilling supported Powis’s pleaded case that it had not authorised the overage period. There was no realistic prospect of proving that every competent barrister would instead have concluded that Powis must have given instructions through the property agents. The proposed concurrent claims involved strategic and tactical choices, including the effect on the principal claim, settlement prospects and contribution issues. Many competent barristers could have adopted Mr Pilling’s approach.
5. The claim against Mr Pilling therefore had no realistic prospect of success. Summary judgment was granted in his favour.

not stated in the judgment.