DMC/PI/6/01
Victoria Griffin v. Denise Kingsmill (a solicitor) and Judge Peter Clark (a barrister at the time)
English Court of Appeal: Schiemann and Kay LJJ, Sir Murray Stuart-Smith: 2001 EWCA Civ. 934: June 2001

Facts
This case arose out of a serious road accident that occurred in the village of North Chailey in Sussex on the afternoon of 17 May 1988. The claimant, Victoria Griffin, who sued through her father as Next Friend, was 12 years old at the time. She was struck by a passing car, driven by a Mrs. Grant and was severely injured, to the point where she needed full-time care and would never earn her own living. On a full liability basis her claim would have been then worth at least £500,000. There were two principal witnesses to the accident. Mrs Grant, in a statement made at the time of the accident, claimed that that the child ‘stepped out in front of her’, giving her no chance of avoiding her. In a later statement, she claimed that she had noticed the child running along the pavement in the same direction as the car; the child had then suddenly changed direction and run into the road in front of her, without looking where she was going. The other witness was the child’s grandfather, Mr. Bailey. His evidence was that, at the time she was hit by Mrs. Grant’s car, the child was standing at the edge of the road, waiting for him to pick her up in the minibus that he was driving.

Mrs. Kingsmill, a solicitor in sole practice at the time, was retained by Victoria’s father, Mr. Griffin, to act for his daughter. After investigating the case for about a year, she held a meeting with representatives of Mrs. Grant’s insurers, who told her that they believed they had a good chance of defeating the claim altogether and at the very least, Victoria would be found 75% to blame. They were prepared, however, to make an offer of £50.000 to dispose of the claim at that time. Mrs. Kingsmill reported the offer to Mr. Griffin and recommended that he accept it, as she agreed with the insurers’ assessment. Mrs. Kingsmill recommended that counsel should be asked to advise, as counsel’s opinion would be needed in any event to secure the court’s approval of the settlement.

She instructed Mr Peter Clark, at the time a practising barrister specialising in personal injury work. He was shown the relevant documents and was advised that the valuation of the case was in the region of £500,000. He was informed of the insurers’ arguments and that Mrs. Kingsmill thought them likely to succeed. He was asked whether or not he believed that there were reasonable prospects of establishing a greater degree of liability on the part of Mrs. Grant than that represented by the offer of £50,000. In his written opinion, Mr. Clark preferred the statements of Mrs. Grant to those of Mr. Bailey and advised that there was an ‘overwhelming likelihood [that] a trial judge would find that Victoria turned into the road, giving [Mrs. Grant] no opportunity to avoid a collision. He concluded that he could not ‘hold out any reasonable prospect of establishing any liability on the part of the driver for this accident.’

The present action was brought claiming that both Mrs. Kingsmill and Mr. Peter Clark had been negligent in advising Mr. Griffin to accept the £50,000 settlement. The allegation was essentially that they had evaluated the evidence wrongly. They had been wrong to conclude that Mrs. Grant’s evidence was almost certain to be accepted in preference to Mr. Bailey’s. They had also failed to appreciate the contradictions in Mrs. Grant’s own account and to realise that, even if her account were accepted as correct, it did not rule out a finding of negligence against her for failing to take avoiding action in time. At the first instance hearing before Buckley J. the claimants failed, the judge holding that the actions of the defendants had been errors of judgement not amounting to negligence.’

Judgment
The leading judgment was given by Sir Murray Stuart-Smith. The test to be applied to the defendants’ conduct was that laid down in the case of Saif Ali v. Sidney Mitchell & Co [1980] AC 198, where Lord Diplock had said: ‘No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made.’ 

The court noted that the circumstances in which barristers and solicitors have to exercise their judgment vary considerably. ‘On the one hand decisions have frequently to be made in court with little time for mature consideration or discussion…… It is one in which it may be very difficult to categorise  the advocate’s decision as negligent, even if later events prove it to have been wrong……But that is not this case. This was essentially a simple case, though one of great importance for the claimant and her family. It was a case where advice could be given after careful consideration. It was a case that was typical of many personal injury cases. Where if the claimant’s evidence …. is accepted, the claim will succeed. If the defendant’s account is accepted the claim will either fail or there will be a substantial contributory negligence. Where there is such a conflict it is very difficult, if not impossible at an earlier stage of the case, as this was, to be sure which evidence will be preferred. All that can be done is to point out what I have just said and then make some attempt to evaluate the strengths and weaknesses of the conflicting accounts. It would take very cogent reasons indeed to say that it was overwhelmingly likely that Mrs. Grant’s account would be preferred and Mr. Bailey’s rejected and, consequently, the claim had no reasonable prospect of success.’

The judge continued: ‘I confess that I have listened with increasing amazement and some dismay to the submissions of counsel for the defence that the advice given here complied with the proper standard of care and competence. If that is so, the profession should be ashamed that its standards are so low. I do not accept for one moment that this was the sort of advice that competent and experienced solicitors and counsel should have given….. It is not enough that counsel and solicitors have read the papers and given clear advice which could be understood. In a case such as this, logical and sensible reasons have to be given for rejecting the favourable evidence of Mr. Bailey. If the reasons do not bear examination they are not such as can be expected from a competent and experienced practitioner….. …. In my opinion there is no valid or proper reason given by [Mr. Clark] either in his opinion or his evidence for questioning the reliability of Mr. Bailey, let alone rejecting his evidence out of hand…..For these reasons I have no doubt that [his] advice was negligent and I cannot agree with the judge that it was such that a competent and experience practitioner might give.’

The alternative argument that, even on her own story, there was a reasonable prospect of establishing primary liability on Mrs.Grant for failing to take precautionary steps, was in the judge’s view, was a serious argument that should have been averted to in Mr.Clark’s opinion. Whilst the judge did not think that ‘he could give a confident opinion either way….. it was certainly not an argument that could be dismissed out of hand without even any reference to it.’

As regards the liability of Mrs. Kingsmill, the judge found her recommendation to accept the £50,000 settlement to be negligent. ‘It flowed from an unjustified rejection or assessment of Mr. Bailey’s evidence and the failure to appreciate the weakness of Mrs. Grant’s evidence and a failure to appreciate the alternative line of argument based upon Mrs. Grant’s own version. An experienced and competent personal injury solicitor ought not to have recommended acceptance of the offer.’

Accordingly, judgment was given in favour of the claimant, the court holding that, had the claim against Mrs. Grant gone to trial, the claimant’s chances of success would have been 80% of the full value of the claim.

The other two judges agreed with the judgment delivered by Sir Murrray. Lord Justice Kay added some comments on suggestions from defence counsel that a conclusion of negligence against Mr. Clark would have far reaching consequences for the Bar in that a) it would discourage the giving of robust advice and b) it would require counsel to deal with every piece of evidence in every opinion, just to demonstrate that counsel had read and considered them.