Mervyn Lambert Plant Ltd v Knights Solicitors (A Firm)
| Jurisdiction | England & Wales |
| Judge | Dan Squires |
| Judgment Date | 28 January 2022 |
| Neutral Citation | [2022] EWHC 165 (QB) |
| Docket Number | Case No: QB-2019-003628 |
| Court | Queen's Bench Division |
[2022] EWHC 165 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires QC
(Sitting as a Deputy High Court Judge)
Case No: QB-2019-003628
John Bryant (instructed by Gotelee Solicitors) for the Claimants
Richard O'Brien (instructed by Kennedys) for the Defendant
Hearing dates: 25 to 29 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Dan Squires QC
Dan Squires QC:
Introduction
This is a professional negligence claim brought by the Claimants against the Defendant, a firm of solicitors, in tort and for breach of contract.
The Second Claimant, Mr Lambert, is a successful businessman who resides in Diss in Norfolk. He is the director and controlling shareholder of the First Claimant, a plant hire company, also based in Diss. The Claimants instructed the Defendant, a firm of solicitors with expertise in planning law, between September 2016 and August 2017 in relation to a proposed development at a site in Bressingham Norfolk, not far from where Mr Lambert lived. Mr Lambert opposed the development, and after planning permission was granted by South Norfolk Council (“SNC”) on 2 March 2017, he brought a judicial review claim seeking to challenge it. The claim was unsuccessful. Permission to bring the judicial review was refused on the papers on 13 June 2017 and following an oral hearing on 2 August 2017. The Claimants pleaded a number of allegations of negligence and breach of contract in relation to the advice they received from the Defendant in relation to the challenge. The key allegation was that the judicial review of SNC was “doomed from the outset”, and that had the Claimants been properly advised, and in particular had they had been told of counsel's views on the case, they would never have pursued the claim. The Claimants seek to recover the majority of the fees they paid the Defendant during the period it was instructed.
The issues before the court
It is common ground that the First Claimant was a client of, and was owed contractual and tortious duties of care by, the Defendant from 21 September 2016 to 14 March 2017. It is also common ground that Mr Lambert then became a client of, and was owed contractual and tortious duties of care by, the Defendant from 14 March 2017 until sometime in August 2017.
The Claimants raise a number of allegations of negligence and breach of contract in relation to advice received from, or action taken, by the Defendant, and I have grouped the allegations into six headings in the judgment below. The Defendant denies any negligence or breach of contract. In the alternative, and if that is rejected, the Defendant disputes causation. It argues that, even if it breached any duty owed to the Claimants in the advice it gave, the outcome would have been the same. The Defendant argues that even if different advice had been given to them, the Claimants would still have instructed the Defendant to pursue the judicial review and to carry out other work, including lobbying SNC. According to the Defendant, the Claimants therefore suffered no loss. That is disputed by the Claimants who contend that if they had been properly advised of the prospects of the litigation they would have ceased to instruct the Defendant.
In addition to the question of causation, there is a further dispute as to whether the First Claimant could recover damages at all. The Defendant asserts that, as the fees incurred by the First Claimant were treated as a director's loan to Mr Lambert, which he has now repaid, the First Claimant suffered no loss. That is disputed by the Claimants. The parties agreed, however, that I should not determine that issue, or indeed, any issue relating to quantum and loss, at this stage. It was agreed I should confine my determination to whether the Defendant was negligent or in breach of contract in any of the ways alleged, and, if so to determine whether that caused any loss. The parties considered that once they had those findings they would be best placed to determine how to proceed with any further issues concerning recoverable quantum. I consider that to be a sensible use of the court's and parties' resources, and agreed to proceed on that basis.
My judgment is structured as follows. It deals with: (1) the legal framework governing the claim; (2) an overview of the factual background; (3) the allegations of negligence and breach of contract and my findings on them; (4) issues of causation. I wish to thank the parties and their legal teams. The case on both sides was clearly put and well argued, and while the case undoubtedly raised strong feelings for the parties, the litigation was conducted in a cooperative manner and the witnesses sought to give their evidence in an open and helpful way.
Legal framework
The Claimants instructed the Defendant as a firm of solicitors specialising in planning law. It is not disputed the Defendant thereby owed the Claimants a duty in tort to act with the skill and care to be expected of a reasonably competent solicitor specialising in that field.
It is not disputed the Defendant also owed the Claimants contractual duties (from 21 September 2016 to 14 March 2017 to the First Claimant and 14 March 2017 until sometime in August 2017 to Mr Lambert). The express obligations, contained in the letters of retainer and relied on by the Claimants, were not disputed by the Defendant. They were: an obligation to review the matters on which the Defendant had been instructed “on … a regular basis”; an obligation to “advise … of any circumstances or risks of which [the Defendant] are aware or consider to be reasonably foreseeable that could affect the outcome of [the Claimants' case]”; an obligation to “update” the Claimants “with progress on your matter regularly”; and an obligation to “update [the Claimants] on whether the likely outcomes still justify the likely costs and risks associated with [the Claimants'] matter whenever there is a material change of circumstances.”
The Claimants also pleaded that when Mr Lambert first spoke to Mr Knight, Senior Partner of the Defendant and the solicitor with conduct of the case, on 16 September 2016, Mr Knight said “he himself would not undertake an application for judicial review unless there was a high chance of success”. The Claimants pleaded that they relied on that representation and/or that it became a term of the agreement between the Claimants and the Defendant that the Defendant would not advise the Claimants to pursue a judicial review unless it had a “high chance of success”. The Defendant denied the statement was made, and disputed that, if it was, it could reasonably have been relied on or that it formed a term of the contract between the parties. As set out below, I do not accept that Mr Knight stated he would not undertake an application for judicial review unless there was a “high chance of success”. In any event, whether or not such a statement formed a term of the contract between the parties, or was relied upon to enter the contract, was not one of the agreed issues for trial and was not pursued in argument by Mr Bryant for the Claimants (as distinct from the general allegation the Defendant failed to advise the Claimants on the prospects of success of any judicial review application which is dealt with below). I therefore do not deal with it further.
As set out above, the key dispute between the parties is whether accurate advice as to the prospects of the Claimants successfully judicially reviewing SNC was provided by the Defendant between September 2016 and August 2017. In tort, it was accepted that an aspect of a solicitor's duty owed to a client involved in litigation is to take reasonable steps to ensure the prospects of success of the litigation are accurately conveyed. It was also not disputed that the various contractual terms imposed similar obligations on the Defendant.
It is difficult, in my view, to see any significant differences in the duties imposed on the Defendant depending on whether they arise in contract or tort. The express contractual obligations were to update the Claimants on the progress of their case and whether the likely outcome justified the likely costs and risk, and to advise on any circumstances that could affect the outcome of the case. It is difficult to see how those obligations, when applied to ongoing or potential litigation, differ from the tortious duties owed by solicitors. Any reasonable solicitor involved in litigation would be expected to seek to ensure that their clients were properly advised of the progress of their case and of the prospects of success of any litigation in which they are involved, and of any material changes to those prospects. A solicitor that failed to do so is likely to have breached a tortious duty of care owed to their clients irrespective of any express contractual terms, and I do not consider that it makes a substantive difference that these general duties to advise and update were reflected in this case in express contractual terms.
What is required to establish a breach of duty in this case is also similar whether the duties are framed in tort or in contract. It was accepted by both parties that the tortious duty imposed on the Defendant was to act with the skill and care to be expected of a reasonably competent solicitor specialising in planning law. The Claimants accepted...
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Another "Failure To Advise" Case: Solicitor's Negligence Recast?
...on how the courts will approach the issue. John Bryant represented the Claimant in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB) - a case that contains important reminders of the duty of solicitors to convey the risks of litigation to clients, but also that the fac......
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Another "Failure To Advise" Case: Solicitor's Negligence Recast?
...on how the courts will approach the issue. John Bryant represented the Claimant in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB) - a case that contains important reminders of the duty of solicitors to convey the risks of litigation to clients, but also that the fac......