A recent spate of case law in the solicitors’ negligence arena has brought more guidance on when summary judgment and strike out applications will be successful for defendant law firms.
Despite both applications being set out in the Civil Procedure Rules, little guidance is provided on how such applications should be assessed by the courts. This leaves the courts with a wide discretionary power resulting in applications being notoriously difficult to predict. Applicants therefore have to rely on the wealth of case law available to assess their chances of success.
Recent Case Law
The facts and underlying matters involved in solicitors’ negligence claims are wide ranging, leading to applications being decided on a case by case basis. 2022 has seen several cases shed light on the circumstances where summary judgment and strike out applications will or will not be successful.
In April, the High Court considered the cases of Asif v Freers Askew Bunting Solicitors Ltd and Coote v Ullstein. Asif v Freers considered strike out applications for abuse of process. Prior criminal proceedings brought by the same claimant to the professional negligence claim had been stayed. As both the criminal and professional negligence proceedings concerned the same issue, the claim against the defendant law firm was held to be an abusive collateral attack on the earlier decision staying criminal proceedings. Further, it was not necessary for judgment to be handed down in criminal proceedings for strike out of the civil claim to be granted.
Coote v Ullstein focused on summary judgment applications and considered the correct approach to causation and loss of chance, as well as the admissibility of “after coming” evidence. The court found that the issue of what the claimant would have done if properly advised by their solicitors was a causation issue and had to be proved on the balance of probabilities.
The defendant law firm was not limited to relying on evidence available at the notional trial date of the underlying claim in their summary judgment application. Expert evidence obtained by them concerning the defence to the underlying matter was relevant and admissible. This revealed that the claimant had no real prospects of success in the underlying claim and, as a result, had no real prospect of success in their professional negligence claim. Summary judgment was therefore granted.
Manda v Bird & Lovibond (a firm) was heard in June and the High Court delivered further guidance on both types of application. The case concerned the handling of the claimant’s employment dispute. The factual and evidential matrix before the court was complex and incomplete. It was held that proper findings of fact needed to be made at trial after testing the evidence so that the law could be properly applied. As such, the case was not of the type where there was a short point of construction for the summary judgment process to be suitable.
Granting summary judgment would run the risk of conducting a mini-trial and ignoring the possibility that other evidence may be available at trial, as it was obvious that further significant material existed which was not yet before the court. The court was unable to properly assess the prospects of success and there were compelling reasons for the matter to proceed to trial. In view of the court's determination on the summary judgment application, there was no need to consider the strike out application. Both applications failed.
The most recent case, Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd, was handed down in September. The applications for summary judgment and strike out centred around the dishonesty of the claimant who had grossly and knowingly exaggerated the values of both the claim against the solicitors and the underlying claim. This led to no loss, or substantially less loss than claimed, being suffered by the claimant and accordingly there was no real loss of chance to assess. The claimant was not credible and his evidence could not be relied upon with disclosure risks surrounding the potential lack of availability of relevant documents needed to challenge the evidence and case.
Given the claimant’s conduct, it was not possible to ensure that a fair trial could be conducted. Whilst the solicitors were successful in most but not all of their grounds in their applications, it was held that the only appropriate relief was the draconian measure of striking out and summarily dismissing the whole claim with costs.
Key Takeaways
The case law illustrates the wide powers the courts have to strike out and summarily assess claims. Their inherent jurisdiction to act to preserve the integrity of the trial process is the driving factor in determining the applications.
The judgments highlight the interrelatedness of both types of application, the consideration given to the conduct of the claimants, the merit of underlying matters and the evidence that may be adduced in relation to them, which impact the outcome greatly.
Whilst the courts are encouraged to “grasp the nettle” and narrow issues in dispute where short points of construction are concerned, the courts are not encouraged to conduct a mini-trial of the issues. This does not, however, mean that the courts have to accept the claimant’s evidence at face value, especially where it is contradicted by contemporaneous documents. Where a short point of law and construction is at issue, and the court has the relevant evidence in its hands to determine it, the court should do so.
The Judgments
Asif v Freers Askew Bunting Solicitors Ltd & Anor [2022] EWHC 1208 (Ch) 5 April 2022
Coote v Ullstein [2022] EWHC 607 (QB) 11 April 2022
Manda v Bird & Lovibond (a firm) & Anor [2022] EWHC 1427 (QB) 10 June 2022
Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd [2022] EWHC 2275 (Ch) 29 September 2022
