Judgments - Moy v Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent)

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    60.  As Latham LJ acknowledged, the difficulties faced by an advocate who is advising on acceptance or rejection of a settlement are manifold and the pressures, especially if the advice has to be given at the door of the court, can be heavy. In such circumstances it would be surprising if every such piece of advice were reasoned with as much comprehensive precision as may be applied in hindsight by an appellate tribunal which has had the benefit of extensive argument and leisurely reflection. Since the decision in Arthur JS Hall & Co v Simons advocates have been liable to their clients for negligence in the same way as other professional persons. It would not be in the interests of those clients if they were compelled by the effect of over-prescriptive decisions to adopt a practice of defensive advocacy in the conduct of litigation or advising litigants about the course to be taken. I would endorse the view expressed by Brooke LJ in the Court of Appeal, to which I have already referred, that it would be unfortunate if they felt that they had to hedge their opinions about with qualifications. It would be equally unfortunate if another effect of the same syndrome were to be an abdication of responsibility for decisions relating to the conduct of litigation and a reluctance to give clients the advice which they require in their own best interests. Nor do I consider that to give clients a catalogue of every factor which might affect the course of action to be adopted, on the lines of that suggested in argument by Mr Livesey QC for the solicitors, would be a productive discharge of advocates' duty to give them proper advice.

    61.  The appellant was faced on the morning of trial on 6 April 1998 with a very difficult situation, not of her own making or that of the claimant. The decisions of the deputy district judge and circuit judge appear to have been largely driven by listing necessities and the need for enforcing a greater degree of efficiency and promptness on the part of practitioners. In the process the imperative of doing justice to the parties was subordinated, and the appellant may not unreasonably have felt that the trial judge would pay rather more regard to that imperative and be receptive to her application to be allowed to adduce the vital further evidence of Professor Saleh. The majority of the Court of Appeal recognised this in declining to interfere with Judge Geddes' assessment that the appellant was not to be held negligent in making her assessment of the prospects of success in the application. It must in my opinion follow by clear implication that, although they did not spell it out, they must also have accepted Judge Geddes' further finding that her decision to advise the claimant to proceed with the action rather than accept the offer of £150,000 was not negligent.

    62.  I would for my part agree with Judge Geddes on both points. They cannot really be decided in isolation from each other, as the whole process was one of deciding whether or not to advise acceptance of the offer. The assessment of the prospects of success of the application was the key factor in reaching a conclusion, for if the claimant could be assured of that his course was obvious and the choice was easy. When the prospects of succeeding in the application had been determined -bearing in mind always that at this point the appellant still did not know how the trial judge would react to the application - she then had to pay regard to other possibilities and uncertainties. She was aware that the claimant would have a cause of action in negligence against the solicitors if he ended up with materially less than the proper value of his claim. This was his safety net if he went ahead with the action but the judge refused the application and he ended with a low award for lack of evidence supporting his claim for future loss. It would also have been possible to rely on bringing such a claim if he settled for £150,000, which was a significant undervalue. In both circumstances he would have been faced with the burden of proving that he would have succeeded in establishing his entitlement to the larger measure of damages if the solicitors had not been negligent in their handling of the action. It is not unlikely that if he had settled for the offer of £150,000, the wisdom of his taking that course would have been challenged in the subsequent proceedings. Any experienced advocate would know the difficulties of this type involved in a suit for professional negligence and would not lightly encourage a client to rely upon its complete success. One might well say in hindsight that the advice given by the appellant to proceed was a wrong decision, but I am not myself convinced that it was as mistaken a decision in all the circumstances as has been represented. The claimant had much to gain if the application succeeded, and the action would then have been relatively straightforward. He had the "safety net" if it failed, even though allowance had to be made for the inherent difficulties in a professional negligence action. Above all, there was a strong case to be made that it would be artificial and unjust, despite all the errors of omission, to deprive the claimant of the opportunity to adduce evidence which would make such a profound difference to the value of his claim. I therefore am in agreement with the conclusion reached by Judge Geddes that the advice fell within the range of that to be expected of reasonably competent counsel of the appellant's seniority and purported experience.

    63.  The majority of the Court of Appeal, having accepted Judge Geddes' finding that the appellant's assessment of the prospects of success of the application was not negligent, nevertheless went on to hold that she had been guilty of negligence in that she failed to give the claimant sufficiently detailed advice. Latham LJ, who dealt with this point at paragraph 43 of his judgment, expressed the view that the claimant should have been advised specifically that there was a problem about the admission of medical evidence to prove future loss and close any gap in proving causation, and the chances of success in obtaining leave to adduce that evidence. Brooke LJ agreed with the reasons given by Latham LJ, while Hart J, though concluding that the advice to proceed with the action was wrong and negligent, appears to have been of a similar view. I have great difficulty in accepting that if the appellant was not at fault in deciding to advise the claimant to proceed with the action, she was negligent in failing to spell out the considerations which led her to give that advice. It involves the proposition that the claimant would, if he had been apprised of those considerations, have decided to accept the offer of £150,000, rejecting the advice which ex hypothesi was properly given. It also involves accepting the inference that he would, as he now avers, have so decided once he knew of the difficulties.

    64.  The latter issue is analogous with those which arise in cases where it is claimed that medical practitioners have failed to give sufficient warning to patients of the consequences of treatment, which was itself carried out properly and without any negligence. In such cases the onus is upon the patients to prove that they would if properly warned have declined to undergo the treatment, one proposition which was accepted by all members of the Appellate Committee in the recent case of Chester v Afshar [2004] UKHL 41; [2004] 3 WLR 927. Such claims not infrequently founder upon this point, for although the claimants regularly assert that they would have refused the treatment if fully advised, those assertions are not always accepted. In the present case the solicitors would have to establish on the balance of probabilities that the claimant would have refused the offer if given more detailed information. The appellant's advice as to the claimant's recommended course of action would have been the same, whether or not she gave a fuller explanation of the underlying factors, and it seems to me more than a little questionable whether he would then have rejected the advice. The submissions to the Court of Appeal and the cross-examination of the appellant tend to support the suggestion that the claimant was very dependent on the appellant for advice and make it unlikely that he would have rejected it. If the appeal turned on this issue I should therefore be somewhat hesitant about agreeing that the claimant would have accepted the offer.

    65.  The appeal does not in my view turn upon this point, for I consider that it was not incumbent upon the appellant to spell out all her reasoning, so she was not in breach of her duty of care to the claimant in the advice which she gave. Brooke LJ adverted in paragraph 67 of his judgment, which I have quoted, to the unfortunate results which would follow if advocates felt compelled always to hedge their opinions. They are, as he stated, paid to express their opinions, but not necessarily their full reasons. Naturally one cannot lay down a hard and fast rule, for circumstances will vary infinitely, but I should be slow to hold advocates to blame in cases such as the present if they concentrated on giving clear and readily understood advice to their clients about the course of action they recommended. Specifically, in the circumstances in which the claimant and the appellant found themselves at the door of the court on 6 April 1998 I do not consider that the appellant was guilty of any negligence of commission or omission in the advice which she gave to the claimant.

    66.  This conclusion is sufficient to determine the appeal and makes it unnecessary to decide the issues of apportionment and the Court of Appeal's order as to costs. It is also strictly unnecessary to decide the issue of the applicability of section 1(5) of the Civil Liability (Contribution) Act 1978, but as it was fully argued before the House and the point may be raised in future cases I shall express my opinion shortly on it.

    67.  Section 1(5) provides as follows:

    "A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought."

It was argued on behalf of the appellant that the judgment given by Judge Geddes in her favour was by this provision made conclusive, so that it could not be challenged either in subsequent proceedings for contribution or by appeal in the action in which the judgment was given. I agree with the view expressed by Latham LJ in paragraph 10 of his judgment:

    "The purpose of the statutory provision is obvious. It is designed to ensure that a person is not exposed to the risks of further litigation after the issues have prima facie been resolved."

He went on to say that the same considerations do not apply where all the relevant parties were present at and took a full part in the trial of those issues. The appellant's counsel took issue with this last statement, contending that the provision was designed to make the judgment of the trial court final as far as the successful defendant was concerned and to remove the risk, not only of a subsequent contribution being brought against him, but of an appeal being brought against the judgment in his favour. He pointed out that until the enactment of the Law Reform (Married Women and Tortfeasors) Act 1935 there was no right of contribution between concurrent tortfeasors, and in granting such a right Parliament placed limits upon it in the interests of finality. The Civil Liability (Contribution) Act 1978 extended the right of contribution to some extent, but it remained limited, and section 1(5) was intended to set one of those limits. The judge had held that the appellant was not liable to the claimant and the solicitors, the co-defendants, had discharged in full the award made in the claimant's favour. That had brought about finality which should not be disturbed and section 1(5) should be given its natural meaning, that the judgment in the High Court was conclusive.

    68.  If the appellant's contention were correct, it would give rise to somewhat surprising results, which tend to support the proposition that this was not the meaning intended by Parliament in enacting section 1(5). In the first place, it would mean that in this situation the ordinary right of a litigant in the High Court to appeal to the Court of Appeal against an adverse decision would be barred, which one would not expect to find without very clear statutory provision. So long as the claimant is able to recover against the co-defendant found wholly to blame, he has no interest in bringing an appeal, so the co-defendant would be left with no redress if he was aggrieved by the judgment. Secondly, if the appellant had only been joined by the solicitors as a Part 20 defendant, but the plaintiff had not added her as a co-defendant, section 1(5) would not apply, since it was not an action "brought … by … the person who suffered the damage in question against any person from whom contribution is sought". The subsection would only apply if the latter is joined as a co-defendant, which would be a strange anomaly. Thirdly, the categorical statement of Goddard LJ in Hanson v Wearmouth Coal Co Ltd [1939] 3 All ER 47 at 55 has remained unchallenged until now and it is to be assumed that when the 1978 Act was enacted Parliament was aware of the state of the law. In that case the trial judge found in favour of the first defendant, a coal company, and held the second defendant, a gas company, wholly to blame for the loss incurred by the plaintiff as the result of an explosion caused by a leakage of gas. The second defendant appealed, but the Court of Appeal upheld the judge's decision that the first defendant was wholly to blame. Goddard LJ said, however, at page 55:

    "It remains only to notice the argument of counsel for the coal company that, as the plaintiff did not appeal against the judgment entered for the coal company, the appeal of the gas company, in so far as it seeks to have them held liable for contribution, is incompetent. We cannot agree. The gas company were entitled at the trial, by reason of the provisions of the Law Reform (Married Women and Tortfeasors) Act, 1935, to show, if they could, that the coal company were liable in whole or in part for the accident so as to obtain the benefit of indemnity or contribution given by the Act. The duty of the court below was to decide on the rights of the parties at the date of the writ. The Court of Appeal must rehear the case and give the judgment which ought to have been given below, and, if the judgment below should have been that both defendants were liable, so that a right of contribution would arise, this court has power to enter judgment accordingly, even though the plaintiff be content with judgment against one defendant."

It would be surprising if Parliament intended to restrict this right of appeal, and no indication of such an intention is anywhere apparent, which tends to support the conclusion that section 1(5) of the 1978 Act was not intended to create a restriction of that nature.

    69.  In my opinion Goddard LJ's statement was good law at the time it was made, and there is every reason to interpret the 1978 Act in a way which brings one to the same conclusion. I note also that support for the solicitors' case on this issue may be found in some Australian and Hong Kong authorities, but I do not find it necessary to discuss these decisions, save to say that they all appear to be correct statements of the law applicable in the respective jurisdictions. I therefore conclude that section 1(5) of the 1978 Act should be so construed as not to bar an appeal in a case such as the present. This could be done in either or both of two ways. One could construe the word "judgment" as referring to a final judgment after any appeals have been determined, rather than the judgment at first instance of the trial judge; or one could confine the operation of the subsection to actions for contribution subsequently brought, so excluding further proceedings by way of appeal in the original action. Whichever construction one adopts, I consider that the solicitors' right of appeal to the Court of Appeal was not barred by the operation of section 1(5).

    70.  For the reasons I have earlier given, however, I would allow the appeal from the order of the Court of Appeal and restore the order made by Judge Geddes, with costs to the appellant of the proceedings in the Court of Appeal and before this House.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    71.  For the reasons given in the speeches of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell I too would allow this appeal and make the order proposed.

 
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