Solicitor/Barrister relationships and Counsel's accountability in matters resulting in loss.

05/02/2009

The claimant, McFaddens ("the firm") was a firm of solicitors who acted for a company and its two directors, G and C (who was also the Chief Executive of the company) in respect of a claim against a firm of architects (the underlying action). The defendant, Platford, was a barrister briefed by McFaddens to advise in respect of this matter.

Over the course of acting in the underlying action, the solicitors acting on behalf of McFadden (E (partner), B and W (consultant)) became concerned with the mental health of C and expressed this concern to Platford.

After taking advice from the Law Society and Platford, the firm was advised that there was a real risk that C lacked capacity within the meaning of the Mental Health Act 1993 and the Civil Procedure Rules 1998. Despite C's disagreement with Platford's advice, the firm made an inter partes application on 23 September for an adjournment of the trial of the underlying action. The judge noted C's absence and made several unless orders. The adjournment was not granted. C failed to comply with the unless orders and as a result, the claim and defence to the counterclaim were struck out.

The claimants in the underlying action then brought an action against the firm for negligence on the basis that the application on 23 September should never have been issued and would never have been issued by a competent and skilful lawyer. The firm settled the matter, but later brought proceedings against Platford for an indemnity or contribution to the damages which it had paid out. The firm claimed that Platford's advice was negligent and that no barrister in the defendant's position would have considered that there was anything more than a remote risk that C was incapable by reason of mental illness from managing his property affairs, including the litigation. The firm also argued that they were bound to follow such advice.

The appropriate test to be applied in determining whether a counsel was negligent was whether a firm had a duty to rely on counsel's advice. The court ruled that a barrister should exercise a reasonable standard of care that a competent member of the profession possessing those skills should have. A relevant factor in measuring the standard of care which should be expected from a competent barrister who holds themselves out to be an expert in a particular field is their seniority.

The judge in this instanced stated that solicitor/barrister relationships should be looked at on a case by case basis, to be classified on a spectrum, that is with a top end, bottom end and middle, as follows:

1. Top end: a solicitor who relies on a counsel's advice where they lack experience in a certain field


2. Middle: Co-operative relationship between barrister and solicitor.


3. Bottom end: A barrister who is instructed to draft pleadings or prepare schedules on facts presented to them in accordance with the Solicitor's instructions (within the rules of professional conduct).

It was noted that frequently a barrister must rely on the solicitor for the factual basis on which advice is given and that a solicitor would be entitled to rely on counsel's advice based on the facts presented to counsel.

In this instance, the advice given Platford was based on facts provided to him, particularly in light of the fact that the E, B and W and Platford had been seriously concerned about C's capacity, and the firms partners and W had much closer dealings with C.

The Court also took into account that PLatford was asked to advice on short notice as a matter of urgency. Platford stated that he had not in his 30 years of practice been asked to urgently advise on such a matter, based on the type of evidence before him, and in such circumstance, his decision to place the issue of C's capacity before the court could not be regarded as wrong or negligent. Additionally, the solicitors were under a duty to inform the court of their concerns with C's capacity so as not to mislead the court and to assist the administration of justice.

This together with existing authorities did not in this case bind the firm to follow Platford's advice.

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