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A barrister was not negligent in advising to settle a
claim for a fraction of the sum claimed, in circumstances where she
considered that an application to strike out was likely to succeed.
The claimant, who had joined the army in 1976 as a private, had brought
an action against the MOD as his former employer. In it, he claimed
malicious falsehood in respect of confidential reports about his performance
and promotion prospects.
He asserted that as a result of the treatment he received, he had no
choice but to leave the army and claimed £240,000 reflecting the
alleged loss of earnings and pension entitlement.
The claimant instructed solicitors, who pursued the claim in the most
desultory fashion. Specialists counsel's advice was sought which was
that if the MOD made an application to strike out, such was the delay
that it would have 90-95% prospect of success. A second firm of solicitors
was then instructed and the same barrister advised that an application
to strike out would almost certainly succeed and as a result both counsel
and solicitors were of the view that an offer of £10,000 plus
costs should be accepted.
The claimant sued the first solicitors on the basis of their dilatory
conduct of the case, claiming damages for the loss of the chance of
successfully winning the case at trial. This claim was settled for £215,000
and subsequently, the first solicitors were joined in the proceedings
as claimants. The amended claim was that the barrister and second firm
of solicitors, in advising settlement for £10,000 were responsible
for all of the loss (alternatively, they were liable to make a contribution).
The court held that defendant barrister was under a duty to exercise
the skill and care of a reasonably skilful and careful barrister specialising
in defamation and malicious falsehood. She had given robust advice,
but that was within the range of advice that, in the circumstances as
they presented themselves at the time, could reasonably and properly
be given. It was clear on the evidence that in reaching her view, she
had taken into account all the relevant circumstances. She was aware
of the lengthy delays and the apparent lack of interest on the part
of the claimant. She had regard to the MOD's own delays, but did not
consider they were enough to displace a strike out. She was justified
in thinking that it was the totality of the delay that counted. She
also thought that prejudice could probably be shown by the MOD. She
thought that the court would be influenced by the repeat reduction of
the limitation period to one year for claims such as these. She also
had some doubts about the underlying merits of the claim and as to chances
of the claimant retaining legal aid.
Since the barrister was not negligent, the second solicitor was not
negligent either. He was not a specialist, and could reasonably place
reliance on counsel, who was a knowledgeable practitioner in the field.
What is more, he instructed her fully, carefully considered all aspects
of her advice and applied his own mind and judgment to that advice.
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