Fassone v Hugh James (A Firm)

A solicitor advising on settlement must exercise reasonable care and skill, but the court must allow for the difficult, experience-based nature of settlement decisions. There is no general rule that a solicitor must obtain expert medical evidence or counsel’s advice in every complex personal injury claim. Whether either is required depends on the individual case, the material available, the prospects of recovery and the cost and utility of further investigation. An experienced specialist solicitor may read and assess medical records without expert assistance. Where serious difficulties concerning liability, limitation and causation make further investigation commercially or legally pointless, advising settlement without obtaining reports or counsel’s opinion is not necessarily negligent.

The claimant brought a professional negligence claim against his former solicitors, who had advised him in 2018 concerning a proposed claim against the English Benedictine Congregation for historic physical and sexual abuse suffered at Fort Augustus Abbey School. The solicitors advised acceptance of a £10,000 settlement offer after identifying substantial difficulties concerning jurisdiction, limitation, vicarious liability and causation.

The claim was tried on liability and preliminary issues identified by Master Davison. The central questions were whether the solicitors were required to obtain counsel’s advice, expert psychiatric evidence, or advice on loss of earnings and pension rights, and whether their valuation and settlement advice fell below the standard of a reasonably competent practitioner.

1. Claim dismissed. The defendant had not breached its duties and the claimant had not shown that different advice would have produced a better outcome.
2. The applicable standard was that of the reasonably competent solicitor. In settlement work, professional judgment is especially important, and the court must guard against hindsight. Negligence requires advice or conduct that no reasonably competent and experienced practitioner would have adopted.
3. There was no general obligation to obtain a psychiatric report. Whether medical evidence is required is a matter of judgment assessed on the facts and as the case develops. An experienced specialist solicitor is capable of reading and understanding medico-legal material. The claimant’s records disclosed serious causation difficulties, including pre-existing psychiatric problems, drug misuse and allegations of earlier abuse. It was reasonable to conclude that a report would be harmful or unhelpful.
4. There was likewise no duty to instruct counsel. The relevant issues were within the experience of the solicitors, and the developing evidence, particularly the IICSA EBC Report, materially weakened the prospects of establishing vicarious liability. The reasoning in Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56 was fact-sensitive and did not directly assist on the materially different institutional structure.
5. It was not negligent to omit advice on loss of earnings or pension rights, or to advise acceptance of the £10,000 offer. The settlement advice reflected the serious impediments to recovery and the costs consequences of failure. The claimant was expressly warned in writing of the risk of under-compensation in the absence of medical assessment.
6. The question of the likely content of counsel’s advice was not part of the pleaded case. In any event, a reasonably competent solicitor would not at that stage have concluded that there was a reasonable prospect of establishing vicarious liability. The claimant was also unlikely to have funded and pursued further proceedings in a way that would have produced a materially different outcome.