House of Lords
|Session 2004 - 05
Publications on the Internet|
PDF print version
Moy v Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)
THURSDAY 3 FEBRUARY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Moy v. Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)
 UKHL 7
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell. For the reasons they give, with which I agree, I would allow this appeal.
LORD HOPE OF CRAIGHEAD
2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. I agree with it and for the reasons that he has given I too would allow the appeal. I should like to add these comments.
Competency of the appeal
3. Section 1(5) of the Civil Liability (Contribution) Act 1978 refers to a judgment in any part of the United Kingdom. The phrase "in any part of the United Kingdom" did not appear in clause 3(7) of the draft Civil Liability Contribution Bill which was annexed to the Law Commission's report, Law of Contract, Report on Contribution (9 March 1977, No. 79). The Law Commission concentrated on the position in England and Wales. It recommended that, for the purposes of contribution proceedings in this jurisdiction, neither party should be allowed to challenge a finding of non-liability made in favour of the other in an action brought against the other by the plaintiff, provided that the finding was made after a trial on the merits: para 81(g). It did not discuss the possibility that the finding which was not to be challenged was one that had been obtained from a court in another part of the United Kingdom. But reference is made in para 65, footnote 89, to another matter drawn to its attention by a working party of the Scottish Law Commission which was not unrelated to this issue. This indicates that, in accordance with normal practice and as was to be expected, the two Law Commissions were in touch with each other during the preparation of this report.
4. We do not know what led to the change of wording which led to the formula that now appears in section 1(5) of the 1978 Act. But the intention appears to have been to remove the possibility of any doubt on this point by providing expressly that no distinction was to be drawn for its purposes between judgments obtained under any of the United Kingdom's legal systems. The way in which this was done indicates that it was assumed that there were no material differences between these legal systems as to the stage at which it would be right to regard a finding after trial as conclusive in favour of the person from whom the contribution was sought. It may be helpful therefore, as a footnote to what Lord Carswell has said, to look briefly at the circumstances in which a judgment which has been pronounced in Scotland will be regarded in that jurisdiction as having determined the issue in that person's favour.
5. Section 1(5) of the 1978 Act does not form part of the Scottish legislation that regulates proceedings for contribution between joint wrongdoers. This is to be found in section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. That subsection was modelled on section 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935, which formerly applied to England and Wales but was repealed by section 9(2) of and Schedule 2 to the 1978 Act. Section 3(1) of the 1940 Act enables the court to determine the proportions in which two or more parties are found jointly and severally liable in damages or expenses are to be liable inter se to contribute to that award. It remains in force in the form in which it was originally enacted.
6. Section 3(2) of the 1940 Act deals with the situation where a party who has been found liable wishes to recover from another party who, if sued, might also have been found liable. It provides:
The words "who, if sued, might also have been held liable" preclude the raising of proceedings against a party who has already been sued and found not to be liable.
7. Chapter 26 of the Rules of the Court of Session 1994, which is headed Third Party Procedure, enables questions arising out of claims by a defender against a third party for contribution, relief or indemnity and liability to be disposed of in the same action as that in which the defender is himself being sued: Beedie v Norrie, 1966 SC 207, 210, per Lord President Clyde. It is the counterpart of Part 20 of the Civil Procedure Rules. Chapter 26 is a re-enactment of a rule which was first introduced as rule 85 of the Rules of the Court of Session 1965. Where a third party is brought into the action in this way the pursuer has the option of amending his pleadings so as to adopt the case which the defender has made against the third party or of leaving it to the defender to make that case. The decision as to which course to adopt will usually depend on the pursuer's prospects of success in establishing that the defender is liable at least in part for the loss for which he seeks damages.
8. Whether or not the pursuer does adopt the defender's case, the third party is regarded as being a party to the pursuer's action. This is because the purpose of the third party notice procedure is to make good the defender's claim that the third party is liable with the defender to the pursuer in the subject matter of that action: Buchan and Others v Thomson, 1976 SLT 42, 45 per Lord Fraser.
9. In Barton v William Low & Co Ltd, 1968 SLT (Notes) 27, the question was raised as to whether it was competent for a party who had been brought into the action under the third party procedure to challenge the relevancy of averments which the pursuer, who made no case against the third party, was seeking to incorporate in her pleadings as part of her case against the defenders. Lord Stott said, at p 28:
10. There is one further point. An interlocutor which has been pronounced in the Outer House of the Court of Session does not become a final interlocutor until the expiry of the reclaiming days - that is to say, the number of days prescribed by rule 38.3 of the Rules of the Court of Session within which a reclaiming motion may be marked to bring that interlocutor under review in the Inner House: see Court of Session Act 1988, section 28. When an interlocutor is reclaimed against, the effect from the time the reclaiming motion is marked is to sist, or stay, all execution on the decree which has been pronounced in the Outer House until the reclaiming motion has been determined: rule 38.8; Macleay v Macdonald 1928 SC 776, 782-3, per Lord Anderson.
11. Where the pursuer, having amended his pleadings so as to make a case against the third party, is wholly unsuccessful against the defender and wholly successful against the third party, the third party may appeal against the decision that the defender is not liable by reclaiming against that interlocutor. His position is unaffected by the pursuer's decision as to whether or not he should appeal. The third party's interest in reversing the decision that the defender is not liable to the pursuer is regarded in itself as giving him a sufficient interest to enable him to take the matter to appeal in that action.
12. There are, of course, differences of procedure between the two jurisdictions as to the way these matters are to be dealt with. But a judgment given in any action in which the third party procedure has been used in the Court of Session in Scotland will not be a final judgment which determines the issue between the parties in that jurisdiction until the days for reclaiming against it have expired or until any competent appeal against that judgment has been disposed of, irrespective of the party by whom the appeal was brought. If it is not a final judgment in that jurisdiction, it must follow that it is not to be regarded as a final judgment in England and Wales for the purposes of section 1(5) of the 1978 Act.
13. I consider, for these reasons, that the challenge which has been made to the competency of the appeal in this case would not have succeeded if the judgment which was said to be conclusive was a Scottish judgment that had been reclaimed against and was still under appeal. This supports Lord Carswell's conclusion, with which I respectfully agree, that the solicitor's right of appeal was not barred in this case.
The barrister's negligence
14. A claimant who is seeking an award of damages needs to know two things when the defendant pays a sum into court before trial. The first is whether he is likely to obtain more than that sum if he leaves it to the judge to assess damages. The second is that he will be liable in costs from the date when the sum was paid in if he fails to obtain more than that sum from the trial judge. Every reasonably competent barrister knows that the claimant needs to be given this advice if he is to make an informed judgment as to whether he should accept the sum that has been paid in. But the situation with which Miss Perry was faced at the door of the court on 6 April 1998 was unusual. The matters on which advice was needed were complicated by the difficulty that had arisen about introducing the necessary evidence.
15. The case against Miss Perry has narrowed since the original allegations against her were made. The only breach of duty that is now alleged is that she failed to give proper advice to Mr Moy on 6 April 1998 on his prospects of beating the offer of £150,000 with costs which, as she had been told, was still open but would be withdrawn as soon as the judge came into court. It is not now being suggested that Miss Perry failed to advise him what he could expect to be awarded if all the necessary evidence as to causation and prognosis was before the trial judge, or that he had not been warned about his liability in costs if he failed to beat the payment in. The breach of duty relates to the problem which had arisen about introducing the necessary evidence.
16. This problem was, of course, not of Miss Perry's making. Nevertheless it was her duty to assess the prospects of persuading the judge to admit the evidence and then to advise Mr Moy about those prospects. Her evidence was that her assessment was that the prospects were fifty/fifty, adding that they were "probably slightly higher in favour of the matter going on, or the evidence being allowed in." She accepts that she did not frame her advice to Mr Moy in these terms. She said that she told him that she was hopeful that the evidence would be allowed in. Mr Moy accepted in cross examination that it was explained to him that he could still have the £150,000 if he wanted it. He also accepted that Miss Perry told him that she thought that he would do better if the case were to go on, but that it was a matter for him whether the offer should be accepted.
17. The judge, HHJ Geddes, asked himself whether this advice lay outside the range of possible advice which counsel of her seniority and purported experience could be expected to give and concluded that it was not. The judges in the Court of Appeal accepted that Miss Perry's assessment of the prospects of persuading the trial judge to admit the necessary evidence was not negligent. The question then, as Latham LJ put in para 42 of his judgment, was:
18. In Arthur J S Hall v Simons  1 AC 615, 737G-H Lord Hobhouse of Woodborough said that one of the protections of the advocate was that the standard of care to be applied in any negligence action was the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constraining circumstances. In the same case at p 726D-G I said that the measure of the advocate's duty to his client is that which applies in every case where a departure from ordinary professional practice is alleged, and that it could not be stressed too strongly that a mere error of judgment on his part will not expose him to liability for negligence.
19. Where a claim is brought for professional negligence the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from. No such evidence was adduced in this case. Judges, recalling how things were when they were in practice, no doubt feel confident that they can do this for themselves without evidence. But judges need to be careful lest the decision in the case depends on the standard they would set for themselves. If this were to happen, it would vary from judge to judge and become arbitrary. Considerable weight should therefore be given to the decision of the judge at first instance who heard all the evidence. In this case the judges in the Court of Appeal were right to defer to the judge's decision that Miss Perry was not negligent in her assessment. But in my opinion they did not give sufficient reasons for departing from his decision to reject the argument that she was negligent as to the way in which she advised Mr Moy in the light of that assessment.
20. The question whether her advice was negligent has to be judged in the light of the choices that were available in the light of that assessment. It was clear from previous discussions with him that Mr Moy was dissatisfied with the £150,000 that was on offer. His own view was that his claim was worth about £200,000. Miss Perry was entitled to take this fact into account when she was considering whether she should advise him to accept the offer. As against the risk of losing the benefit of the offer, there was the prospect of recovering substantially more than that if the judge decided to admit the necessary evidence. There was an obvious advantage in achieving a full recovery in that action rather than having to fall back on an action against the solicitors to make up the shortfall.
21. How then was the advice to be conveyed to Mr Moy? She did not tell him that her assessment of the chances of getting the evidence in was 50/50. That, for Latham LJ in para 43 and Brooke LJ in para 53, was the only proper advice that she could have given him. So the advice she gave him was wrong and it was negligently wrong. But the question whether the advice was wrong and negligently wrong has to be tested in the light of the facts that were known when the advice was given. It is difficult to see why the advice can be said to have been negligently wrong if the assessment on which it was based was not negligent. Moreover it is the substance of the advice, not the precise wording used to convey it, that needs to be examined in order to judge whether it was negligent. The significance of Miss Perry's failure to tell Mr Moy that the prospects of getting the evidence in were 50/50 has to be measured against what she did tell him, which was that she was hopeful that the judge would admit the evidence.
22. I am reluctant to differ from the views expressed by the judges in the Court of Appeal. But it does seem to me, with great respect, that they judged her actions too harshly when account is taken of all the circumstances. Their decision might have been supportable if it had been based on some reliable evidence to the effect that the advice which she gave was of a kind which no barrister of her standing and experience would have given in the circumstances. But, for reasons that are not difficult to understand, there was no such evidence. In my opinion the decision of the trial judge ought not to have been departed from in these circumstances.
BARONESS HALE OF RICHMOND
23. My noble and learned friend Lord Carswell has written the leading opinion in this case. I agree with it, and also with the opinion of my noble and learned friend Lord Hope of Craighead. What follow are merely footnotes to what they have said.The Civil Liability (Contribution) Act 1978
24. The position in England and Wales differs slightly from that in Scotland, in that a notice of appeal does not operate as an automatic stay on the judgment of the court at first instance: see Civil Procedure Rules, 52.7. Indeed, the usual practice is that an unsuccessful defendant must satisfy the judgment under appeal unless the parties agree otherwise or he is granted a stay. Permission to appeal may be made conditional on some or all of the judgment sums being paid. But a stay will be granted if there is good reason to do so, for example if there is reason to doubt that the money will be recoverable if the appeal is allowed. This does not, however, undermine the conclusion reached by Lord Carswell on the interpretation of section 1(5) of the 1978 Act. Indeed, it strengthens it, in that the position cannot be different depending upon whether this would or would not be an appropriate case in which to grant a stay of execution. Thus, it should make no difference if (contrary to the facts of this case) the unsuccessful defendant wished to appeal the decision, not only as against the successful Part 20 defendant, but also as against the claimant, and consequently were able to obtain a stay of execution. Section 1(5) cannot apply while the judgment in question is still liable to be set aside on appeal.
The negligence claim
25. This House, in Arthur JS Hall & Co v Simons  1 AC 615, abolished the advocate's remaining immunity from claims for negligence because their Lordships could see no good reason why advocates should be treated any differently from other professional persons. They should be in no better, but also no worse, position than others. Lord Hobhouse of Woodborough put that position in this way (at p 737G):
26. In claims against members of other professions, the court will have expert evidence on whether their conduct has fallen short of this standard. In cases against advocates, however, the court assumes that it can rely upon its own knowledge and experience of advocacy to make that judgment. This brings, as Lord Hope has pointed out, an obvious risk that a judge will ask himself what he would have done in the particular circumstances of the case. But that is not the test. The doctor giving expert evidence in a medical negligence claim is not asked what he himself would have done, but what a reasonable doctor might have done.
27. Ms Perry had two decisions to take at the door of the court: what advice to give her client and how full an explanation to give him. Neither the judge nor the majority of the Court of Appeal thought that her advice to reject the offer was negligent. It is hard to see how it can have been so. It was a judgment which turned out badly in the short term but was just as likely in the long term to lead to the client getting everything to which he was entitled. In her view the claim was worth much more than the offer. If the application to admit further medical evidence was granted, the claimant would get what the claim was worth from the Health Authority, which was properly liable for it; this was much better for him than trying to make up the shortfall from the lawyers whose negligence had led to the current dilemma. There was, in April 1998, a reasonable prospect of persuading the judge that justice required that the evidence be admitted. Had Ms Perry advised the claimant to take the offer and sue the solicitors, the solicitors could have mounted a respectable argument that she should have given him exactly the advice that she did. Unless and until an application to admit the further evidence was made to the trial judge, it could not be said that the claimant had been unable to obtain his full entitlement from the Health Authority.
28. How much of this thinking did she have to explain to the client? It took the law of medical negligence some time to work out the principles governing what the patient is entitled to be told before deciding whether or not to agree to intrusive medical treatment: see Sidaway v Board of Governors of the Bethlem Royal Hospital  AC 871. These principles are now relatively well understood. In Chester v Afshar  UKHL 41;  3 WLR 927, for example, the doctor agreed that he should have explained the particular risk to the patient. We have not yet developed a clear set of principles governing the terms in which an advocate's advice should be given. As Lord Hope has pointed out, there is a minimum which any client considering whether to accept a payment into court must know, but that advice had already been given. The situation at the court door was different. We have been shown no evidence or authority to support the view that no reasonable barrister would have given her advice in the way that Ms Perry did in this case. It may well be that such principles will develop in future. But there is still a respectable body of professional opinion that the client pays for the advocate's opinion not her doubts. I agree that the Court of Appeal should not have disturbed the judgment of the trial judge in this case.
29. The claimant in this action David Leslie Moy could not be blamed if he felt that he had been poorly served by the medical and legal professions. On 13 September 1992, then aged 27 years, he sustained fractures of the left leg when playing football. The surgical treatment of the injury in Maidstone Hospital was negligently carried out, leaving him with continuing pain and disability. Despite remedial surgery in 1995, he has been left with a degree of disability and has sustained and will sustain loss of earnings. He commenced a claim for damages against the hospital authority, and it is not in dispute that as time went on it became clear that he was entitled to substantial damages, in excess of £200,000. As the result of a chapter of accidents, which I shall recount, when his action came to trial he was left in a position in which he was advised to settle at a very considerable undervalue.
30. He issued proceedings against the solicitors who had acted for him in his claim against the hospital authority, the respondent firm Pettman Smith ("the solicitors"), and in July 2001 the High Court gave judgment in his favour against the solicitors for the sum of £210,000. The appellant Miss Jacqueline Perry, the barrister who had appeared for Mr Moy in his medical negligence claim, was joined as a Part 20 defendant and subsequently as a co-defendant to Mr Moy's claim against the solicitors. Miss Perry, who was called to the Bar in 1975, is experienced in personal injury and medical negligence litigation. It is alleged against her in the present action that she had been negligent in giving the claimant advice relating to the conduct of his claim. The judge held that the appellant was not negligent and made the award of damages solely against the solicitors. They paid Mr Moy the damages due to him, but appealed to the Court of Appeal, who held that Miss Perry was partly to blame for the claimant's loss and should bear a proportion of the damages paid to him. Miss Perry appealed to your Lordships' House against the decision of the Court of Appeal. Your Lordships accordingly have to consider the question whether the appellant was negligent in the discharge of her duty of care to her client the claimant. As a result of these convoluted proceedings the claimant did eventually recover the damages due to him, but only after years of delay and, no doubt, much anxiety and distress.
31. The facts have been fully and carefully set out in the judgments of the trial judge and the Court of Appeal, but it is necessary to rehearse in a little detail the course of events leading up to the giving of the advice which was held to be negligent. The fractures of the tibia and fibula sustained by the claimant in the accident in September 1992 were originally treated by manipulation, but as this was not successful a surgeon in the hospital performed an operation in October 1992, involving rotation and internal fixation of the bones by means of a metal plate. This operation was negligently carried out, as was subsequently admitted by the hospital authority, leaving the claimant with an unacceptable degree of rotational error. In March 1995 a remedial operation was carried out by Mr (later Professor) M Saleh, a consultant orthopaedic surgeon, which improved his condition materially and appeared at first to have effected a nearly complete recovery. Mr Saleh concluded a report to the solicitors dated 9 July 1996 by stating: