Professional Indemnity

Home ] Callery v. Gray ] Dean v. Allin Watts ] Merrett v. Babb ] Griffin v. Kingsmill ] Hands v. Coopers ] Harley v. McDonald ]

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This Section of the website contains Case Notes on the following cases. To access the Case Note, click on the name of the case.

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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
LIABILITY OF SOLICITOR AND BARRISTER: NEGLIGENT RECOMMENDATION TO ACCEPT SETTLEMENT IN PERSONAL INJURY CASE: FAILURE TO EVALUATE EVIDENCE PROPERLY: FAILURE TO RECOGNISE ALTERNATIVE GROUNDS OF NEGLIGENCE: ERRORS OF JUDGMENT NOT SUCH THAT COMPETENT AND EXPERIENCED PROFESSIONALS WOULD MAKE: GUIDANCE FOR THE BAR IN DEALING WITH MATTERS OF EVIDENCE IN OPINIONS

Summary
A solicitor and a barrister were held liable to a claimant for advising her to accept an offer of settlement in a personal injury claim, which did not reflect the merits of the case. They had evaluated the evidence incorrectly and had not recognised potential grounds on which the claim could have been founded. Their conduct did not amount simply to errors of judgment; no reasonably competent and experienced professional could have acted as they did. The decision did not, however, mean that any change in the current practice of the Bar was required.

Leave to appeal to the House of Lords pending

Dean v. Allin & Watts
English Court of Appeal: Leading Judgment from Lightman J
TLR 28 June 2001: May 2001
LOAN SECURED BY DEPOSIT OF DEEDS ON PROPERTY: NO WRITTEN MEMORANDUM SIGNED BY PARTIES AS REQUIRED BY S.2 OF LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1989: BORROWERS DEFAULT: SECURITY DEFECTIVE: LENDER REQUIRED TO SURRENDER DEEDS: LENDER LOSES AMOUNT OF LOAN: CLAIM AGAINST BORROWERS’ SOLICITORS: DUTY OF CARE: RELIANCE ON SOLICITORS TO PROVIDE EFFECTIVE SECURITY: EFFECTIVE SECURITY FUNDAMENTAL TO TRANSACTION: ASSUMPTION OF RESPONSIBILITY: NEGLIGENCE
Solicitors acting for borrowers were held to owe a duty of care to a lender to provide effective security for a loan, where security of that nature was accepted by both parties as fundamental to the loan transaction and in circumstances where the lender did not take independent legal advice and relied on the borrowers’ solicitors to ensure that the security was effective.

Hands v. Coopers & Lybrand
English High Court: Sachs J: Unreported: April 2001
PROFESSIONAL NEGLIGENCE: DUTY OF COMPANY’S AUDITORS TO A CREDITOR OF THE COMPANY: DUTY OF DISCLOSURE: FLOATATION OF SHARES: GOING CONCERN: DUTY TO ADVISE: LIQUIDATION OF COMPANY: NO LIABILITY TO CREDITOR
The auditors of a company, who were also advising the company on a floatation, did not owe a lender to the company a duty of care to advise him about the making or continuation of the loan, even where, in the context of the floatation, they obtained from the lender a letter postponing repayment of the loan.

Merrett v. Babb
English Court of Appeal, Civil Division: February 2001: ILR 23/2/2001: TLR 2/3/2001
PROFESSIONAL NEGLIGENCE: PROPERTY: MORTGAGE VALUATION AND REPORT: EMPLOYED SURVEYOR: DUTY OF CARE: RELIANCE: ASSUMPTION OF PERSONAL RESPONSIBILITY

A surveyor owed a duty of care, separate from that owed by his employer and by him to his employer, to mortgage applicants who relied upon his valuation and report. In determining whether a duty of care existed in such circumstances, voluntary assumption of personal liability was not a test of universal application.

Callery v. Gray
Case No. DMC/PI/02/01
Callery v. Gray and Russell v. Pal Pak Corrugated Ltd

English Court of Appeal: Judgment given by Woolf LCJ: Unreported: July 2001
PERSONAL INJURY CLAIMS IN ROAD TRAFFIC ACCIDENT CASES: CONDITIONAL FEE AGREEMENTS: SUCCESS FEES: AFTER THE EVENT INSURANCE: SETTLEMENT PRIOR TO ISSUE OF PROCEEDINGS: RECOVERABILITY FROM DEFENDANT: LEGALITY OF TWO-STAGE SUCCESS FEES:
WHETHER PREMIUM FOR OWN COSTS INSURANCE RECOVERABLE: PREMIUM FOR VARIOUS POLICY BENEFITS: USE MADE OF PREMIUM BY INSURERS
Where straightforward personal injury claims, such as those arising from road traffic accidents, either succeed or are settled on terms that the defendant will pay the claimant’s costs, the claimant can recover from the defendant a reasonable success fee and a reasonable premium cost for After-the-Event (ATE) insurance, even if the case was settled before the issue of proceedings. The maximum success fee recoverable in such cases would be 20%.

Raylee Harley(a Barrister) & Glasgow Harley (a solicitors' firm) v Robert McDonald 
A decision of the English Privy Council, on appeal from the Court of Appeal in New Zealand: 2001: Unreported: 

This case examined the question, which up to this point had been open under New Zealand law, whether the New Zealand High Court had the power, in appropriate cases, to make barristers, as well as solicitors, personally liable for costs. The PC decided that the NZ High Court did have that power.

In deciding the case, the PC applied principles which had been applicable in England and Wales prior to the introduction of Wasted Costs Orders, pursuant to S.51 of the Supreme Courts Act 1981.

The PC kept open the question whether, under New Zealand law, barristers should still enjoy immunity from suit from their lay clients. After the decision of the Court of Appeal in New Zealand but before the appeal to the PC was heard, the House of Lords held, in the case of Arthur J S Hall & Co v. Simons, that public interest in the administration of justice no longer required the continuation of the immunity rule in England and Wales. 

 

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