Moy v Pettman Smith (a firm) & Anor [2002] EWCA Civ 875 (19 June 2002)

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Cite as: [2002] EWCA Civ 875, [2002] Lloyd's Rep PN 513

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		Neutral Citation Number: [2002] EWCA Civ 875
		Case No: A2/2001/1652A

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
HHJ Geddes sitting as a Deputy High Court Judge

Royal Courts of Justice
Strand, London, WC2A 2LL

19th June 2002

B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE LATHAM
and
MR JUSTICE HART
____________________

Between:

	DAVID LESLIE MOY	Second Appellant/ Claimant
	- and -
	PETTMAN SMITH (A FIRM) And JACQUELINE PERRY	First Appellant/ First Defendant Respondent/ Second Defendant

____________________

Bernard Livesey QC & Duncan Macleod (instructed Barlow Lyde & Gilbert of London)
on behalf of the Appellant, Pettman Smith
John Ross QC & John Norman (instructed by Withers of London) on behalf of the Respondent, Jacqueline Perry

Hearing dates : 9-10th May 2002
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Crown Copyright ©

Lord Justice Latham:

Mr Moy suffered a fracture to his left tibia playing football on the 13^th September 1992. He was then 27 years old. At first the fracture was treated conservatively by means of manipulation and the application of a plaster cast. The fracture did not unite satisfactorily; and on the 16^th October 1992, an operation was carried out to fix the fracture by means of a metal plate and screws. This operation was carried out negligently, as was subsequently admitted by the Health Authority, in that the operation resulted in an unacceptable angulation at the fracture site.

In July 1994, proceedings were commenced on Mr Moy’s behalf against the Health Authority by the first defendant in the present proceedings, the appellants, who instructed the second defendant, the respondent, as counsel. In the first instance the Health Authority denied the allegations of negligence, loss and damage made in the statement of claim.

Paragraph 6 of the defence read as follows:

“Such continuing disability as the plaintiff may have is the natural consequence of the fracture he sustained.”

The Health Authority admitted liability on the 6^th March 1995. Shortly thereafter, on the 16^th March 1995, a remedial operation was carried out by Mr Saleh. Mr Moy was able to return to his work as a self-employed carpenter in April 1996. There was no dispute ultimately as to the claim that he made for loss of earnings up to that date. The problem arose in relation to the pain that he thereafter suffered which significantly affected his earning capacity.

The trial of the action was ultimately fixed for the 6^th April 1998. By that time £150,000 had been paid into court by the Health Authority, and had not been accepted by Mr Moy on the respondent’s advice. But by reason of interlocutory orders to which I will return, the medical reports upon which Mr Moy was entitled to rely did not support a claim for continuing disability or financial loss. It was necessary to obtain the leave of the court for such evidence to be given. Before the hearing commenced, the Health Authority indicated that they would be prepared to allow Mr Moy to take the £150,000 in court. On the respondent’s advice Mr Moy declined that offer. The respondent sought to persuade the judge to permit further medical evidence to be given. As a result of certain indications given by the judge, the respondent considered that Mr Moy should accept the best possible offer she could obtain from the Health Authority. By then the Health Authority was only prepared to offer £120,000, which was a sum which had been paid into court in February 1998, and on the usual basis as to costs. Although this was appropriate, perhaps even generous, for such pain, suffering and loss of amenity and loss of earnings and earning capacity as could be established on the medical and other reports upon which Mr Moy was entitled to rely at that stage, it was substantially less than his disabilities merited. The respondent, however, advised that in the circumstances Mr Moy should accept that offer; and he did.

The present proceedings were brought by Mr Moy against the appellants in the first instance on the basis that they had failed to obtain further medical reports in time which adequately and properly addressed the issues of prognosis and causation, particularly in relation to lost earning capacity. The appellants denied breach of duty and blamed the respondent both in their defence and in contribution proceedings brought under Part 20 of the Civil Procedure Rules. Mr Moy then joined the respondent as a second defendant. The respondent in turn denied breach of duty in both sets of proceedings.

The action came before HHJ Geddes sitting as a High Court Judge. By the time of trial, damages were agreed in the sum of £210,000. In his judgment, given on the 4^th July 2001, the judge held that the appellants were solely responsible for the loss which Mr Moy had sustained, and dismissed both his claim and the appellants’ contribution claim, against the respondent. The appellants appeal on the grounds that the judge was wrong, and that Mr Moy’s loss was contributed to by breach of duty by the respondent. The appellants submit that the respondent was negligent in advising Mr Moy to refuse the offer of £150,000 at the hearing, and that the respondent, taking into account the difference between the sum on offer and the sum accepted, and the cost consequences, was responsible for at least one half of Mr Moy’s loss.

In a respondent’s notice, the respondent took the point that the appellant was precluded from raising the issue of substance in this appeal. In the original notice of appeal the appellant had simply sought to challenge the decision of the judge in the Part 20 proceedings. Counsel for the respondent referred us to s. 1(5) of the Civil Liability (Contribution) Act 1978 which provides:

“A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.”

The respondent’s submission was that so long as the judgment in favour of the respondent as between herself and Mr Moy remained undisturbed, the judge’s judgment in this respect was conclusive as to the issue of breach of duty which the appellant was seeking to disturb in this appeal. Mr Moy has, not surprisingly, not sought to appeal the judge’s judgment. He has obtained all that he required.

The purpose of the statutory provision is obvious. It is designed to ensure that a person is not exposed to the risks of further litigation after the issues have prima facie been resolved. The same considerations do not apply where, as in this case, all the relevant parties were present at and took a full part in, the trial of those issues.

Mr Moy has no real interest in the resolution of the contribution issue. Accordingly, the appellant sought leave to amend the Notice of Appeal to challenge the judge’s finding as to breach of duty in the action between Mr Moy and the respondent. Mr Moy has indicated in correspondence that he has no objection to that course, provided, as is the case, that his interests are not affected. We could see no reason in those circumstances why the appellants should not be permitted to overcome the purely technical difficulty in this way. We gave leave to amend.

The unhappy story needs to be set out in some detail. The respondent was approached about Mr Moy by a member of her chambers who knew Mr Moy’s parents. This was some time in 1993, after the negligent operation had been carried out. She was by then an experienced common law practitioner, having been called to the Bar in 1975. By the beginning of the 1990’s she had started to specialise in clinical negligence work. She recommended that Mr Moy should see the appellants, in particular a Mr Beadle with whom she had worked successfully; Mr Moy accepted that recommendation: and the appellants were retained. Mr Beadle obtained a medical report from a Mr Scott which supported the view that a medical negligence claim was viable. A writ, and a statement of claim, drafted by the respondent, were issued on behalf of Mr Moy on the 20^th July 1994, annexed to which was the report from Mr Scott. A defence was served denying liability, and putting in issue causation, in terms to which I have already referred. Sadly Mr Beadle left the appellants, and Mr Moy’s case was taken over in 1995 by Miss Nicola Berridge. She had joined the appellants as a trainee solicitor in the autumn of 1994. She did not in fact qualify as a solicitor until September 1996. She had had no personal experience of running a clinical negligence claim until she took over that of Mr Moy. She had however, observed others handling such cases while she was a trainee. The litigation partner who was responsible for her work, was a Mr Sachs, who frankly admitted at trial that he had done little personal injury or clinical negligence work and, as he put it “was somewhat reliant on Miss Berridge and the experience of our counsel Miss Perry”. Miss Berridge herself fell ill in November 1997, and for a short time the case was handled by Mr Sachs. He then handed the case over to Helen Cragg, who herself did not qualify until September 1996. She handled the case from the end of 1997 to the end of January 1998 and was present at the trial in April 1998. Between January 1998 and the trial, Miss Berridge returned to take over the file.

Returning to the chronology, Mr Moy had been advised to see not only Mr Scott, but also a specialist in sports injuries, Mr Saleh. He provided a report of the 7^th July 1994, before the issue of the writ. He confirmed Mr Scott’s opinion as to Mr Moy’s condition and advised a further operation. Although this report was not disclosed to the Health Authority at that time, the Health Authority decided to admit liability, which it did formally at the beginning of 1995. Judgment on liability was entered by consent on the 6^th March 1995. Thereafter Mr Moy’s claim was for damages only. On the 16^th March 1995 Mr, now Professor, Saleh carried out a further operation on Mr Moy’s leg in an attempt to remedy the angulation. As I have already said, Mr Moy’s condition had improved sufficiently for him to return to work on the 1^st April 1996. In July 1996, Professor Saleh provided a report dated the 9^th July 1996 which concluded as follows:

“I doubt that he will require significant physiotherapy input and overall, I believe he will make a 90-95% functional recovery with no serious sequelae anticipated in the short, medium or long term.

I do not at this stage anticipate any need for further surgery and further functional improvement may be expected to continue over a period of 18 months.”

That proved over-optimistic. Within a short time, Mr Moy was complaining of pain. A conference was arranged in September 1996 with the respondent to consider the issues of quantum. It was clearly hoped that the pain would ameliorate. Unhappily, it did not. Mr Moy was suffering increased pain and discomfort by the end of 1996. Miss Berridge again asked for the advice of the respondent who recommended by telephone that a Mr King be instructed to “address the issues and to give his opinion on whether Mr Moy is able to continue working on a six day week basis and how long he will be able to continue to do that”. Mr King was accordingly instructed on the 8^th January 1997. At the same time Miss Berridge informed the solicitors acting for the Health Authority that Mr Moy had been experiencing further problems, and that arrangements had been made for him to see another consultant.

Despite the fact that the position as to the medical evidence still remained uncertain, Miss Berridge agreed an order which was made by consent on the 13^th February 1997 that a schedule of special damages and an estimate of future expenses and losses was to be served on behalf of Mr Moy within 28 days, and that there be leave to adduce expert evidence limited to one medical expert on each side, whose reports were to be exchanged within three months of the date of the order.

Mr King reported on the 15^th April 1997. He was not prepared to say that Mr Moy’s continuing disability was due to the Health Authority’s negligence. As a result, his report was sent on the 27^th May 1997 to Professor Saleh asking for his comments. The Health Authority agreed an extension of time for the exchange of the medical reports to the 18^th July 1997.

No schedule for special damages having been served, the Health Authority obtained on the 20^th June 1997 a further order from the court that unless such a schedule was served by the 18^th July 1997, Mr Moy’s claim for past and future loss was to be struck out.

By then there were clearly very serious difficulties in establishing Mr Moy’s claim for future loss, particularly in establishing that any continuing disability he had was the result of the Health Authority’s negligence. Miss Berridge, having received no reply from Professor Saleh rang him on the 8^th July 1997. He asked for a further copy of Mr King’s report, which Miss Berridge faxed to him immediately. He replied by fax stating that he could not make any sensible further comment unless he had examined Mr Moy.

On the same day, Miss Berridge sent instructions to the respondent to advise in writing as to evidence. The respondent gave her advice in two telephone conversations, on the 17^th and 18^th July 1997. She advised firstly that the schedule of special damages should be prepared and served based upon Mr Moy’s own evidence as to his difficulties at work. This was done, claiming future loss of earnings of £169,408, with a further £25,000 for handicap in the labour market. The total claimed, including special damage to date, was £276,457. The judge, having heard evidence from both Miss Berridge and the respondent, found that the respondent also advised as to the need to obtain medical evidence to support both prognosis and causation. This was hotly disputed by the appellants at trial; the judge’s findings in this respect were challenged in the original grounds of appeal. But before us, this ground was not pursued, rightly in my view, as the judge was entitled, on the evidence, to come to the conclusions that he did.

There is no doubt that for whatever reason, Miss Berridge did not deal with the fundamental difficulties facing Mr Moy adequately or competently. It may well be that Miss Berridge had failed to understand the full impact of Miss Perry’s oral advice, and thought that she did not have to address causation. This is often a danger where complicated advice is given orally and not confirmed in writing. Although she wrote again to Professor Saleh asking for his further opinion on the 24^th July 1997, she did so in terms which did not convey to him any of the necessary urgency, nor did she explain adequately or precisely the questions that needed to be addressed. She said:

“We (meaning herself and the respondent) both wonder whether his present pain is caused by the natural trauma of surgery”

Professor Saleh did not reply. No steps would appear to have been taken to persuade him to reply, or to determine whether or not a further medical report should be obtained. The result was that by the autumn, no medical reports had been exchanged. An application was made by the Health Authority for a further pre-trial review at which time Mr Sachs took over the file. This review was heard on the 27^th November 1997, at which time it was expected that the trial would take place at some time in February 1998. The court ordered that medical evidence be exchanged by the 9^th January 1998 “and in default no evidence not so disclosed shall be admissible save with leave of the court”.

On the 19^th December 1997, the Health Authority served its counter schedule as to special damages and continuing loss. In two significant respects, it appeared to concede that Mr Moy was not only suffering from continuing disability, but that that was attributable to its negligence. It accepted a continuing loss of earnings figure, although of a modest amount, and proposed a lump sum figure for future loss of earning capacity on the labour market. In accordance with the order, the Health Authority also disclosed three reports from a Mr Lowy. The net effect of these reports was to confirm that the operation about which complaint was made had resulted in a significant period of disability until the corrective operation had been carried out, and to accept that Mr Moy would continue to suffer from some discomfort at the fracture site and from some weakness of the ankle, but did not anticipate that there would be any deterioration in his condition which would interfere with his work.

Mr Sachs handed the file to Helen Cragg. She appreciated that the only reports which could sensibly be disclosed at that stage were the two reports from Dr Saleh of the 4^th July 1994 and the 9^th July 1996. She accordingly disclosed those. She also asked Professor Saleh as a matter of urgency to provide a further report. He replied by letter of the 8^th January 1998 saying that he would need to see Mr Moy again. Miss Cragg issued a notice of application for leave to adduce further evidence at the trial, including medical evidence.

Professor Saleh saw Mr Moy again at the end of January 1998, and provided his third report on the 12^th February 1998. He confirmed that, contrary to the opinion that he had expressed in his 1996 report, Mr Moy was suffering from significant continuing disability, which would get worse if he continued his work, and that he might therefore have to consider a change of job. This report was sent to the Health Authority on the 20^th February 1998. On the 24^th February 1998 the Health Authority made a payment into court of £120,000.

The application for leave to adduce further evidence was heard and refused with costs on the 26^th February 1998 by Deputy District Judge Stary. The respondent appeared for Mr Moy. It is clear that she appreciated at that stage that Professor Saleh’s report was defective in the sense that, whilst it confirmed Mr Moy’s continuing disability, it did not expressly attribute that disability to the negligent operation. She reported the results of the hearing by telephone to the appellants, and during the course of the conversation noted that this causation problem existed, but indicated that it did not appear to be any part of the Health Authority’s case at that stage. She advised an appeal. The appeal was heard and refused by HHJ Previte QC with costs on the 6^th March 1998.

On the 12^th March 1998, the Health Authority increased the payment into court to £150,000 and offered to waive the costs of the application and appeal provided the offer was accepted by the 19^th. The respondent advised that that was insufficient. And the offer was not accepted. On the 23^rd March 1998, the respondent saw Mr Moy in conference. She considered that the case was worth up to £300,000 and they should work on the basis that the base line was £200,000. She acknowledged that the medical evidence on which they were entitled to rely did not support this, but said that she would be asking the trial judge to permit them to rely on further evidence from Professor Saleh, who should be present at court.

On the 1^st April 1998, the Health Authority wrote to the appellants agreeing the first two reports of Professor Saleh, stating that he would therefore not be required to give oral evidence, and that they would object to his doing so. The appellants informed the respondent who advised them nonetheless to ensure that Professor Saleh was present at the hearing.

On the 3^rd April 1998, which was the Friday before the trial was due to start, the respondent received the skeleton argument from the Health Authority’s counsel. In it, counsel expressly took the point that there was no medical evidence to support the argument that Mr Moy’s continuing disability, and in particular his loss of earning capacity was caused by the negligent operation, as opposed to being an inevitable consequence of the accident. The respondent, in her evidence, said that this was the first time she appreciated that the Health Authority were intending to take the point, although, as I have already said, she had recognised that the point was available at an earlier stage. She was nonetheless of the view that there was at least a 50% if not better than 50% chance of her being able to persuade the judge to admit further evidence from Professor Saleh, and in particular to allow her to call him as a witness.

On the morning of the trial, counsel for the Health Authority told the respondent that the Health Authority remained willing to offer £150,000, and would waive the two orders for costs which had been made in their favour, in relation to the application and appeal. The respondent remained of the view she had formed over the weekend as to the chances of persuading the judge as to the evidence of Professor Saleh, and advised Mr Moy to reject the offer. She then opened Mr Moy’s case by making her application in relation to Professor Saleh. The judge expressed his concern that the matter had been left so late and that Mr Moy’s condition might not be adequately dealt with in the reports which were already before him, but indicated that there were formidable difficulties in persuading him to re-open the issue which had already been heard by the District Judge and HHJ Previte QC. He then rose to consider the third report from Professor Saleh. The respondent appreciated that the chances were that the judge would not permit her to adduce the further evidence, and advised Mr Moy that he should accept whatever offer was then available. She went to the Health Authority who offered, as I have said, £120,000, but on the usual terms as to costs, and on the basis that Mr Moy would have to meet the costs of the unsuccessful application and appeal, as had been ordered. She advised Mr Moy to accept that offer; and Mr Moy accepted her advice.

The appellant submits that in advising Mr Moy not to accept the offer of £150,000 made that day, the respondent was negligent. As to that issue, the judge said as follows:

“In deciding that issue I have to try and put myself into the position of Ms Perry at the time, and decide whether her advice fell outside the range of possible advice which reasonably competent counsel of her seniority and purported expertise could be expected to make. In my judgment it did not. Although others might have taken a different view of the likelihood of success of her application, I do not think it was wholly unrealistic for her to believe that the trial judge might have some sympathy for the plight in which Mr Moy had been placed by the failures of his legal advisors, and give leave for further evidence to be served (including that of causation) while adjourning the trial for that to be done.

In reaching that conclusion I do not overlook the fact that there had been two previous unsuccessful applications to adduce further evidence and to adjourn the trial for that purpose. However it seems to me that the court on those occasions had not properly adjudicated on the merits and that there was therefore some ground for believing that the trial judge might come to a different conclusion. I accept Ms Perry’s evidence that she had known courts to take indulgent view in such circumstances, at least before the reforms of the Civil Procedure Rules. No prejudice to the Health Authority would apparently have been caused by such an adjournment apart from costs, and they would no doubt have been ordered to be paid by the claimant or his solicitors.

The advantages of success would have been considerable. Although Ms Perry could only take an educated guess at the value of the claim in the absence of necessary evidence, there was no dispute that that value would almost certainly have exceeded £200,000 that therefore settlement at the sum suggested would have resulted in a considerable loss to Mr Moy. The alternative was for Mr Moy to accept the sum on offer and then to sue his solicitors for the shortfall. Ms Perry considered such a course should in the interests of her client be avoided if at all possible. On the other hand Ms Perry was aware that failure would not necessarily be fatal as Mr Moy would still be able to sue his legal advisors, albeit in those circumstances for a greater sum, as he has done by bringing this action.

Support for the view that Ms Perry appeared to those present at the time to have a reasonable chance of success in her application, is provided by the fact that the Health Authority were prepared to continue with their offer of £150,000 (which exceeded the value of the claimants claim as it stood without the missing evidence) but reduced this to £120,000 when it was clear that the application was going to be unsuccessful.”

The appellants do not dispute that the test posed by the judge was correct. But they submit, that on the evidence, the judge erred in a number of respects. First, they submit that the respondent had fundamentally misjudged the chances of successfully persuading the judge to permit further medical evidence to be given. Second, even if she was right in that assessment, the advice she gave was wrong. Third, she failed, in any event to advise Mr Moy fully and properly so that he could make an informed decision as to whether or not to accept the offer. Had Mr Moy been given clear advice, he would have accepted the offer at that time.

It is clear from the way the judge dealt with the matter in the passage in his judgment to which I have already referred, that he accepted the respondent’s evidence as to the advice that she gave and the basis upon which she gave it. In her statement she said as follows:

“18. The trial commenced on 6^th April 1998 and the offer of £150,000 remained available. My view on gross damages at this time the claimant should recover £200,000 or more. This comprised £169,000 special damages, plus general damages, plus interest. This is what I advised Mr Moy. I gave him proper warning that litigation was risky, and that there was several risks in this case, and what the costs consequences would be if his case was not believed.(i.e. that he would have to meet both sides costs and payment in). But I also told him that in my judgment he should beat the payment in. I reminded him that he could take the £150,000 paid into court and avoid the risks by doing so. It was his decision and on his instructions the renewed offer of £150,000 was rejected – although I had certainly made it clear that in my view this was a sensible decision.”

In her evidence in chief she said that she had assessed the chances of persuading the court to give leave to adduce the evidence of Professor Saleh at 50/50, perhaps a shade more in favour than against. She accepted in cross-examination that without that further evidence Mr Moy would be unlikely to beat the payment into court of £150,000 and was not sure that he would beat the payment into court of £120,000. She said that the way she expressed the chances of being able to put the further evidence before the court to Mr Moy was that she “was hopeful that the court would let the evidence in”. It was also clear from her evidence that she was anxious to avoid the situation in which Mr Moy would have to sue the appellants in negligence, and considered that she should therefore press so far as she could to ensure that Mr Moy obtained an appropriate sum by way of compensation from the Health Authority. She also took into account that if she failed in her application, then there remained a prospect of successful proceedings against the appellants. Her reasoning is best seen in the following passages in the cross examination on the 28t^hJune 2001 at page 61ff.

“Mr Langstaff (My Moy’s counsel): You told us the day before yesterday the consequences of Mr Moy having to sue his solicitors. It might be messy, because the solicitors might then blame you and so on and so forth.

A. Also he wouldn’t have recovered any more anyway or what. I mean there is never ...... litigation, as we know, is never very certain.

Q. And you took it on yourself to make that decision for him?

A. I at that time, also had a duty to my professional client and it was a professional judgment that Mr Moy, I thought, could not be in a worse position if we lost on the day at trial, than frankly, he was able to sue his solicitors.

Q. You took that decision for him did you not?

A. Yes.

Q. You did not discuss it with him, did you?

A No I didn’t. I didn’t give him the choice of carrying on with suing the solicitors, no.

.....

Q. Let me put it this way. You had an obligation, did you not, to tell your client what the facts were, to discuss it with him and see what course he wanted to take?

A. I don’t agree. I consider that it was entirely reasonable to explain to the client the difficulties that we faced, the fact we might not succeed, to lay out the difficulties at court and to discuss with him then the offer that was being made as to whether he wanted to take it or not. The one thing I did not say to him, and I accept this, is “and by the way, Mr Moy, of course we can pull the plug now, and you can go away and sue your solicitors”. You are quite right, Mr Langstaff, that’s the one thing I did not say to him, but I said everything else....

You see on this Mr Langstaff, another way of looking at this might be for me to say to Mr Moy “You must accept the £150,000 and I think its a good idea for you to do that and your solicitors were negligent.” There was a lot of uncertainty, first of all, in (inaudible) litigation. Some people might criticise their counsel saying that we are putting undue pressure on the lay client. Why (several inaudible words) and there may be a school of thought that might consider that it is actually not the terribly proper thing to do, to in fact basically say to a client, “Here’s your choice and you can always go away and sue your solicitors if all else fails.” The proper time to do that, which is absolutely correct, and I hope I (several inaudible words) is when it went wrong to absolutely without hesitation, then advised Mr Moy what his remedies were. But prior to it my own view was that it wasn’t necessary to raise the issue because it may have been thought to put undue pressure on him, to accept monies in this litigation that ultimately might not have been to his advantage. One has to weigh up the advantages and disadvantages.”

There is no doubt that the respondent was faced with a difficult problem on the morning of the trial. Whatever may have been her state of mind before, she knew, having received the Health Authority’s Skeleton Argument on the Friday evening, that she had a double difficulty in relation to the medical evidence. As far as the prognosis was concerned, she required Professor Saleh’s third report in order to establish the continuing disability from which Mr Moy suffered. But she also needed to persuade the court to accept further evidence, beyond that in the report, in order to close the lacuna as to causation which the Health Authority clearly intended to exploit. She could only do the latter by calling Professor Saleh himself with the almost inevitable consequence that there would have to be an adjournment in order to enable the Health Authority to deal with the matter.

Bearing in mind the fact that there had been the two previously unsuccessful applications, it is perhaps not surprising that the appellants submit that the respondent’s assessment of the chances of persuading the court to permit her to adduce the evidence was unrealistic to the point of negligence. In this court, we had the benefit of argument which reviewed the state of the authorities as to the exercise of the court’s discretion in circumstances such as this at that time. None of these authorities were canvassed before the judge at trial; the respondent herself justified her views on the basis of her own experience. The judge was therefore left to make his own assessment based on his own considerable experience. He correctly identified that the question he had to answer was whether or not the respondent’s assessment fell outside the range which reasonably competent counsel of her seniority and purported experience could be expected to have made: see in particular the speech of Lord Hobhouse in Hall –v- Simons [2000] 3WLR 543 at page 608F.

The authorities to which we have been referred deal with three main areas, first where there has been delay in prosecuting the action, second where a party has been in breach of a peremptory order, and third where leave of the court was required out of time and close to the trial date to adduce evidence, in particular of expert witnesses, which is the area of concern in the present case.

Considerable reliance is placed on behalf of the respondent on the case of Costellow –v- Somerset County Council [1993] 1 WLR 256 which was a case where the court was considering whether or not to strike out an action for want of prosecution. The respondent relies in particular on the passage in the judgment of Sir Thomas Bingham MR at page 264C:

“Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs.”

The appellants, however, point to a trilogy of cases where applications were made for leave to adduce evidence out of time. These followed in the wake of Lord Woolf’s proposals for the reform of civil procedure. In Beachley Property Ltd –v- Edgar The Times Law Reports July 18 1996, Lord Woolf himself made it clear that the court would approach with greater rigour than before any application to adduce such evidence out of time. He said that the court had to consider not only justice as between the parties, but also justice in the wider sense, and in particular the disruption to court timetables, and therefore to other litigants which can result in such applications. In Letpak Ltd & Others –v- Harris The Times Law reports December 6^th 1996, Waller LJ, although permitting such evidence to be adduced as would not disrupt the hearing date of the trial said:

“The wind of change was blowing fast and practitioners should be aware of the decision in Beachley and what a close run thing it had been in the present case.”

The third case was The Mortgage Corporation Ltd –v- Sandoes & Others The Times Law Reports December 27^th 1996. Millett LJ set out ten considerations to which the court had to have regard in such cases, the most relevant one being condition 5:

“Extensions of time which involve the vacation or adjournment of trial date should therefore be granted only as a last resort.”

Although none of these cases had been reported in any of the major law reports, they were noted in the County Court Practice 1997. It follows that they were part of the material to which counsel could be expected to have access. They were also noted in the Supreme Court Practice 1997 4^th Cumulative Supplement. We were not, however, given the date upon which this was published, so cannot say whether it was available on the 6^th April 1998.

In the light of these authorities and the earlier unsuccessful applications, the respondent’s assessment of the chances of persuading the court to accede to her application could be charitably described as sanguine. But it seems to me that it is difficult for this court to say that the judge was wrong in the assessment that he made of the evidence of the respondent, in the light of his own experience and in the absence of any discussion in argument or evidence of these authorities. I remind myself that the judge’s task was to assess the reasonable expectation of competent counsel at the time. It did not involve assessing what the Court of Appeal would, at that time, have necessarily wanted counsel to expect.

Given that the assessment was not negligent, did the advice that she gave and the way that she gave it, measure up to the standard required of reasonably competent counsel. In answering this question, I take into account the fact that the respondent was facing, as I have already said, a difficult problem. As the judge observed, it was obviously preferable, if at all possible, to obtain full compensation from the Health Authority rather than to accept a lesser sum, on the basis that an action for negligence against the appellants might make up the shortfall. Further a client in the position of Mr Moy is entitled to have advice clearly stated, rather than a dissertation on the respective advantages and disadvantages of the different decisions. The mere fact that advice turns out to be wrong does not mean it was negligent. As Lord Salmon said in Saif Ali –v- Sydney Mitchell & Co [1980] AC 198 at page 231C:

“Lawyers are often faced with finely balanced problems. Diametrically opposed views may be and not infrequently are taken by barristers, and indeed by judges, each of whom is exercising his reasonable, and sometimes far more than reasonable care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent.”

Those words of caution are of particular significance when the advice in question is advice given at the door of the court with all the pressure that that brings. It seems to me, however, that in the present case, the advice that the respondent gave was wrong and negligently wrong. Mr Moy had come to court that day for the trial of his action against the Health Authority. When the offer of £150,000 was made, he was entitled to a proper assessment of the prospects of obtaining more were the trial to proceed. The only proper advice that the respondent could have given in the light of her own assessment of the chances of persuading the court to give leave to adduce further evidence was that the chances were 50/50. He was not given that advice. From her evidence it is clear that the respondent was influenced, at least in part, by two particular factors. The first was that she had, she thought, a duty to the appellants. The second was that she believed that Mr Moy would have a good claim in negligence against the appellants. As to the first, she was wrong. She owed no duty to the appellants. Her duty was to Mr Moy and to Mr Moy alone. As to the second, that was a factor that Mr Moy was entitled to be told about if it was indeed relevant to the decision which he had to take. And in advising him, the respondent would have been under a duty to warn him that, as she herself recognised in evidence, such an action might be messy and could not be guaranteed to be successful.

Accordingly I consider that the respondent was in breach of duty to Mr Moy. In his statement at paragraph 4 Mr Moy said:

“This problem with the medical evidence was not pointed out to me until the trial started on 6^th April 1998. Had I been advised about this fundamental problem prior to the trial starting, then I would certainly have accepted the payment in of £150,000.”

In cross-examination he said that he was made aware of the problems “but as I was made aware of them they weren’t actually problems”. At the trial, after the judge had retired to consider the medical reports, Mr Moy said that the respondent told him that they were in difficulties because of a “technicality”. Whilst the judge made no express findings in relation to Mr Moy’s evidence in this respect, there is nothing to suggest that he doubted his evidence. In these circumstances, we are entitled to assess this evidence in determining whether or not the respondent’s breach of duty caused loss. It seems to me that unless the respondent can point to some evidence that Mr Moy would inevitably have refused the offer even if he had been given proper advice, the reasonable inference from all the material before the court is that given proper advice, he would have accepted the offer.

As I have already said earlier in the judgment the appellants submit that the responsibility for Mr Moy’s loss should be apportioned equally between the appellants and the respondent. They point to the fact that, on the mathematical calculation, had £150,000 been accepted, Mr Moy’s loss would have been approximately half the loss he ultimately sustained. The exercise of apportionment is not, however, an exercise in determining the causative effect of the respective breaches of duty of the tortfeasors. It also involves an assessment of blameworthiness. The respondent’s breach of duty was in respect of advice that she had to give in difficult circumstances which had been, on the judge’s findings, created solely by the fault of the appellants. On a consideration of the history which I have set out in extenso, it seems to me that the overwhelming responsibility for the loss which Mr Moy sustained was the repeated failure of the appellants to get to grips with the case and appreciate the urgent need to ensure that Professor Saleh examined Mr Moy and produced a further report. In my view, the appropriate apportionment is that the respondent must accept 25% of the responsibility for Mr Moy’s overall loss, in other words 50% of that which Mr Livesey submitted was the loss directly attributable to the breach of duty. As the agreed damages are not a precise calculation, only an approximation, I consider that the only way to reflect my assessment of the appropriate apportionment is to say that the respondent is liable for £52,500 which represents the proper proportion of the loss sustained by reason of her breach of duty. The judgment of the court below will be altered so as to reflect the effect of our judgment as between Mr Moy and the Defendants (for Mr Moy’s involvement see para 11 above).

Mr Justice Hart:

I have read the judgment of Latham LJ in draft and agree with its conclusions. I add what follows since we are differing from the well reasoned conclusion arrived at by the trial judge.

Few barristers escape the experience of having to advise clients on the merits of settlement in the context of the imminent trial of a claim the potential value of which has been affected by some deficiency in the preparation of the case for trial. What the right advice is will depend on a multiplicity of factors operating in the particular case, and giving the wrong advice will not necessarily be negligent. So much is obvious. In the present case, Mr Ross QC on behalf of the respondent defended her advice on the basis that, unless she could succeed in getting in the new evidence, the claimant was inevitably faced with two tranches of litigation; and that she therefore reasonably took the view that all the claimant's chances against the Health Authority should be appropriately explored before falling back on the less satisfactory course of an action against the solicitors. The situation was not one, he submitted, in which a conventional analysis of the prospects of success on liability and quantum in the personal injury action was possible; rather, it called for a general analysis of the litigation benefit to be derived from the action against the Health Authority on the one hand and against the solicitors on the other, and the respondent should not be criticised for not having spelt out to the claimant all the considerations which informed the clear advice which she gave him, on the basis of which he declined to take the payment in.

I am unable to accept that submission. When on the morning of the trial the respondent was asked whether or not she advised that the offer be accepted, the reality was that she was being asked whether, if the trial went ahead that day as planned, her judgment was that the claimant would do better than the offer. She was not being asked, expressly or impliedly, for her views as to the prospects of obtaining an adjournment (which would have been the almost inevitable consequence of successfully persuading the judge to let in further medical evidence). Had she been, advice would have been necessary on the further question of how liability for the costs of such an adjournment would fall. In the latter connection, the fact that the claimant had that morning lost his legal aid would have needed to be taken into account. Nor was she being asked to advise as to the claimant's prospects in a professional negligence action against the solicitors. As to the latter it is difficult in any event to see how she could have been in a position to give a properly informed view in the context of the kind of litigation-benefit analysis described by Mr Ross. To the extent to which she was factoring in the prospects of success against the solicitors - what Mr Ross described as the "safety net" underpinning her advice - there is no evidence that she had in mind that the claimant owed a duty to the solicitors to mitigate his loss. Whatever may have been the considerations informing her advice (and however correct her tacit view was in relation to a solicitors' negligence action), the only reasonable meaning which her advice could have had for the claimant was that he would do better to allow the trial to go ahead then and there rather than accept the offer which had been made.

So viewed the advice was wrong, and no defence of it can seriously be mounted. In oral evidence at the trial (at p.34 of the transcript for 25^th June 2001) she admitted that, in valuing the claim for the purpose of giving that advice, she had excluded the impact on the claim of the defects in the medical evidence:

“..since the evidential problem did not emanate from Mr Moy, it seemed to me that it was most improper for me to say to Mr Moy, 'Take less than your claim is otherwise worth as a result of an evidential problem that is none of your making'.”

This seems to me to lie at the heart of the mistake made by the respondent. Excluding altogether the impact on the value of the claim of the deficiencies in the preparation of the case thiscould only make sense if there was a very high probability that the missing evidence could somehow or other be got in. As soon as it became apparent that the judicial wind was blowing in favour of the trial going ahead as planned on the existing evidence, the respondent had no hesitation in advising on acceptance of the much reduced offer of £120,000 less costs. There was only one answer to the question posed earlier that morning as to whether the claimant would beat the payment in of £150,000. If the trial went ahead as planned he almost certainly would not. There was only at best a 50:50 chance that the further medical evidence could be got in, and a very high probability that, if it could be, that would be at the cost of an adjournment. The potential downside of taking the chance was enormous (as events proved), and could indeed have turned out even worse than was in fact the case.

I agree with Latham LJ that we are entitled to infer from the claimant's evidence that, had he been properly advised, he would have accepted the payment in. I was troubled during the argument by this point. However, on the view I take as to the context in which the advice was given and the interpretation fairly to be placed on it by the claimant, no problem of causation arises. Since her advice was never sought on the prospects or consequences of obtaining an adjournment, still less of the claimant's prospects in a future action against the solicitors, it is irrelevant in my judgment to consider either whether her views on the prospects of obtaining an adjournment were reasonable ones for her to hold, or what the claimant's reaction would have been had she given him a full explanation of the considerations which lay behind her advice. Properly interpreted in the context, her advice to him was: do not accept the offer because you will get a better result against the Health Authority by proceeding today with the trial. That advice was wrong. The claimant took it and, almost immediately, suffered loss as a result.

Lord Justice Brooke :

I agree, for the reasons given by Latham LJ, that Miss Perry was negligent in failing to give Mr Moy a proper assessment on the morning of the trial of the prospects of obtaining more than £150,000 if the defendants’ offer was not accepted. She believed that the chances of persuading the court to give leave to adduce the further medical evidence she needed were perhaps a shade better than 50-50. She did not give her client access to this assessment, nor explain to him properly the peril in which he now found himself.

I also agree with Latham LJ that although the judge made no express finding about Mr Moy’s likely reaction if he had indeed been given the advice to which he was entitled, this court is entitled to infer from the material before it that if he had been given proper advice he would have accepted the offer. I also agree with his apportionment of responsibility for Mr Moy’s losses.

I am adding this short judgment of my own as a supplement to the matters discussed by Latham LJ in paragraphs 31 to 41 of his judgment because they raise an issue of some importance in relation to an advocate’s potential liability for negligence if he or she fails to keep abreast with important developments in procedural law.

I take the following dates from Latham LJ’s judgment (at paras 1, 2, 12, 13, 15, 16, 21, 24, 25, 38, and 39):

1992	13 September	Mr Moy’s accident
1994	20 July	Writ issued
1995	6 March	Judgment on liability entered by consent
1996	18 July	Beachley Properties Ltd v Edgar
	6 December	Letpak Ltd v Harris
	27 December	Mortgage Corporation Ltd v Sandoes
1997	13 February	Order for exchange of medical reports within 3 months
	18 July	Final date for agreed extension of 13.2.97 order
	27 November	(Trial date anticipated in February 1998). Order by consent for exchange of medical reports by 9.1.98 “and in default no evidence not so disclosed shall be admissible save with leave of the court”.
1998	20 February	Professor Saleh’s third report served.
	26 February	(Trial date fixed for 6.4.98). Deputy District Judge Stary refuses leave for admission of third report.
	6 March	Judge Previte QC dismisses appeal against 26.2.98 order. [No appeal to the Court of Appeal].

I have taken the dates for what Latham LJ has described as the trilogy of Court of Appeal judgments from the date they were reported in The Times Law Reports under the headings:

“Court business not to be disrupted by breaches of rules”

“Time-limit sanction too severe a punishment”

“Importance of time limits”

What Waller LJ described as a “wind of change” which was “blowing fast” had its origins in the publication of the Final Report on Access to Justice (“the Woolf Report”) and the appointment of Lord Woolf as Master of the Rolls in the early summer of 1996. His predecessor, Sir Thomas Bingham MR, had given general guidance to courts in Costellow v Somerset County Council [1993] 1 WLR 256 on the way discretion should be exercised in cases where the defendant had been caused no prejudice for which he could not be compensated by an award of costs. Chapter 1 of the Woolf Report presaged the formal changes in the rules of procedure which came into effect in April 1999. The case of Beachley, however, which was decided less than three weeks after Lord Woolf took office as Master of the Rolls, ought to have given the clearest possible notice to the legal profession about the likely outcome if a party to county court proceedings failed to comply with a direction for the exchange of witness statements and was constrained to seek leave of the court for their admission (pursuant to CCR Order 20 Rule 12A) shortly before the date fixed for trial. This important judgment, heralding a change in practice, was not, however, reported in the main series of law reports.

If any doubt still lingered about the effect of the decision in Beachley it should have been dispelled by the judgment of Millett LJ in the Mortgage Corporation case, where he prefaced his ten guidelines with these words:

“Lord Woolf, Master of the Rolls and Sir Richard Scott, Vice-Chancellor, have approved the following guidance as to the future approach which litigants can expect the court to adhere to time limits contained in the rules or directions of the court.”

If Miss Perry had considered the effect of these guidelines when considering the plight in which her client found himself as a consequence of his inexperienced solicitor’s dilatoriness during 1997, it is hard to see how she could have given so favourable an assessment of the likelihood of the trial judge admitting the critical evidence after two judges had refused leave to admit it, and there had been no appeal against the second of these decisions to the Court of Appeal.

This trilogy of cases was concerned with the admission of evidence shortly before the date fixed for trial following default on a court order. They were not concerned with the effect of an “unless” order. Miss Perry had been put on express notice, however, of the effect of contemporary jurisprudence in the Court of Appeal on “unless” orders because her opponent relied on it successfully when resisting her client’s appeal to Judge Previte. The case he cited was Lownes v Babcock Power Ltd [1998] PIQR P253. It is not clear whether the full transcript of the judgments of Lord Woolf MR and Potter LJ were before Judge Previte: this was not explored at the trial before Judge Geddes. But at that hearing Miss Perry was put on notice of the existence of this unhelpful judgment, which in turn referred back to the very clear guidance on the effect of “unless” orders given by Ward LJ when sitting with Lord Woolf MR in the reported case of Hytec Information Systems Ltd v The Council of the City of Coventry [1997] 1 WLR 1666.

It is of course correct that the consent order dated 27th November 1996, even when coupled with the refusal of the deputy district judge and Judge Previte QC to admit the evidence, was not at the very far end of the sliding scale of orders described by Lord Woolf MR in Otto v Keys [1997] PIQR P120, 125:

“There are those orders which are clearly not peremptory; there are ‘unless’ orders which clearly are peremptory; there are orders which come between that bracket.”

While in theory a power was vested in the trial judge not only to admit Professor Saleh’s third report but also to allow him to give the vital evidence on causation not mentioned in that report, Judge Previte’s unappealed order constituted a very serious obstacle to the likelihood of this happening.

Miss Perry’s unfamiliarity with the effect of this formidable line of cases appears from time to time in the evidence. In her submissions to Judge Diamond QC, for instance, she referred to the third report as one which Judge Diamond “now unaccountably cannot see”, and in paragraph 15 of her witness statement she said she had been confident that at trial Professor Saleh would be allowed to give the evidence she wished to adduce.

I have deliberately referred to a line of cases rather than a line of authority. With the single exception of Costellow, none of the decisions of the Court of Appeal which I have mentioned in this judgment, some of them very important ones, were reported in the All England Law Reports. Hytec was the only other case I have mentioned which was reported in the Weekly Law Reports. The efforts being made by the Court of Appeal from the summer of 1996 onwards to ensure proper compliance with court orders were thus being impeded because they were not being reported in the two series of reports with which advocates could reasonably be expected to be familiar. Perhaps for the same reason none of the matters I have discussed in this judgment appear to have been ventilated in the court below, so that Miss Perry did not have the opportunity of responding to them. In these very unusual circumstances, I agree with Latham LJ that it would be wrong for this court to interfere with Judge Geddes’s finding as to the quality of her assessment of the likelihood of being allowed to adduce the evidence at the trial.

I have made these comments because the decision of the House of Lords in Hall v Simons [2000] 3 WLR 543 has opened up a whole new range of questions relating to the standard of care reasonably to be expected of an advocate in the conduct of litigation. The law only requires the exercise of reasonable care. The exercise of reasonable care has never extended to a command of unreported decisions of the Court of Appeal. It is only where some special feature of a case might reasonably be expected to have put a competent advocate on inquiry that he or she may be faulted for failing to carry out the necessary inquiry with reasonable diligence. On the facts of the present case, reference to pages 232 and 306 of the 1997 County Court Practice and the citation of the Lowndes case before Judge Previte would have given counsel all the leads she needed when she came to assess the prospect of getting the crucial evidence admitted at the trial. She would then have been in a much better position to assess the wisdom or unwisdom of her client accepting the offer which was still on the table when the parties arrived at court on the morning of the trial.

It would be a disaster to the conduct of litigation in this country if an effect of the decision of the House of Lords in Hall v Simons is that advocates believe that they have to hedge their opinions about with “ifs” and “buts” in order to avoid an adverse finding of professional negligence. They are being paid to express their opinion, and if they assess their clients’ prospects as 25%, or 50-50, or “strong”, then that advice will usually suffice unless they are expressly invited to explain it. However, if they have fallen below the standard of care reasonably to be expected of them when formulating their opinion, whether their negligence relates to questions of fact or questions of law (including procedural law), they will now be as vulnerable to a finding of professional negligence as any other professional man or woman.

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