The recent case of Dunhill v W Brook & Co and Crossley [2016] EWHC 165 (QB) provides helpful guidance on the standard of care when assessing cases and advising clients.
Laing J stated that a solicitor is not liable in negligence if he acts reasonably on the advice of appropriate counsel who has been properly instructed, but a solicitor must exercise his own independent judgement and if he considers that counsel’s advice is ‘obviously or glaringly wrong’ he should reject it. In addition, if counsel was not negligent, then there was no scope for the solicitors to be found negligent.
Solicitors should not blindly follow counsel’s advice: they need to show that they have also considered all the facts.
The case of Dunhill v W Brook & Co (2016) was a case concerning a personal injury claim. At the court on the day of the trial a key witness failed to appear. Counsel advised the claimant to accept an offer of £12,500. The firm acting for the claimant had sent a trainee to the hearing. The trainee followed the advice of counsel and as did the Claimant. The Claimant then later sought to bring a professional negligence claim based on the settlement being at a ‘gross undervaluation’. The Claimants claim was against her solicitors and also counsel. The claims against both defendants were dismissed. Mrs Justice Laing stated that, as per Saif Ali v Sidney Mitchell & Co [1980] AC 198, there was a difference between an error ‘that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the reasonable courses of action that in the circumstances reasonably competent members of the profession might have chosen to take’. Laing J stated that a solicitor is not liable in negligence if he acts reasonably on the advice of appropriate counsel who has been properly instructed, but a solicitor must exercise his own independent judgement and if he considers that counsel’s advice is ‘obviously or glaringly wrong’ he should reject it. In addition, if counsel was not negligent, then there was no scope for the solicitors to be found negligent. The judgment of Mrs Justice Laing offers helpful assistance in respect of the standard of care owed by solicitors. Laing J found that the standard of care was not lower for a trainee solicitor. She also found that solicitors cannot blindly sit behind counsels advice when the advice is glaringly wrong.
