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Moy v Pettman Smith, House of Lords, 3 February 2005

10 February 2005
The issues

Barrister’s Negligence – Necessity To Give Detailed Advice Or Otherwise

The facts

Counsel was a Second Defendant in a professional negligence claim. It was alleged that she had been negligent in failing to give the Claimant sufficiently detailed advice as the time of settling her claim.

Counsel acted in the original action for Mr Moy who had a medical negligence claim against a health authority. The Defendant’s solicitors at the doors of Court had told Counsel that a Payment into Court of £150,000.00 was still open for acceptance. The issue was complicated because Mr Moy’s solicitors had obtained late in the day a necessary report from a Consultant Orthopaedic Surgeon. Counsel had to make an application before the Trial Judge to get it admitted. Counsel had told Mr Moy that she hoped the evidence would be admitted and indeed thought there was a better than 50/50 chance of getting leave in which case the Claimant would do better to continue with the action and not take the monies in Court. The application failed, and Mr Moy subsequently accepted a reduced offer (£120,000.00 less costs from date of Payment In).

Counsel was joined as a Second Defendant. The Trial Judge found that the Second Defendant was not negligent and made the award solely against the First Defendant. The First Defendant appealed to the Court of Appeal which allowed their appeal and found that the Second Defendant was negligent and liable for a proportion of the agreed damages payable to Mr Moy.

Counsel appealed to the House of Lords.

The decision

There were many heavy pressures on an advocate advising on acceptance of settlement. This was particularly true of the advice given at the door of the Court.

It was not possible for that advice to be reasoned with the sort of comprehensive precision as might be applied in hindsight by an appeal Court.

Nor would it be productive for advocates to give their clients a catalogue of every factor that might affect the course of action that was to be adopted.

Public interest did not request that advocates be immune from claims for negligence but it did require that the application of the principal should not stifle advocates independence of mind as to the manner in which they conducted litigation and gave advice.

It was possible that in hindsight Counsel’s advice was wrong but the Trial Judge had been right in finding that the advice fell in the range of that to be expected of reasonably competent Counsel of equal seniority and experience.

Appeal allowed.

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