The case of Mervyn Lambert Plant Limited v Knights Solicitors [2022] EWHC 165 (QB) provides a useful reminder as to the duty of solicitors to take reasonable steps in communicating the assessment of litigation risk to their client and in managing client expectations. However, more importantly, it is also a reminder that just because an action is unsuccessful does not mean that the lawyers involved were negligent.

Background

In Mervyn, the Claimants brought an action against their solicitors in tort and for breach of contract in respect of advice obtained in an action for Judicial Review. The action was against a planning decision taken by South Norfolk Council. The Claimants alleged that, had the Defendant solicitors advised them properly, and had they fully informed them of the written advice provided by retained Counsel, they would never have pursued the Judicial Review action.

The Defendant had obtained Counsel advice on the draft Letter Before Claim which provided a negative assessment on the prospects of the Claimants’ claim. Counsel outlined that there were a “number of difficulties” with the Judicial Review and that the “grounds [of the action] are weak”. However, the Defendant chose not to forward this email onto the Claimants but instead relayed this information orally whilst they were on a car journey together to a South Norfolk Council planning committee meeting. The Defendant’s advice to the Claimants was somewhat more optimistic than Counsel had communicated and he outlined that Counsel had taken an “overcautious” stance.

Ultimately, permission to bring the Judicial Review was refused on the papers and the Claimants sued the Defendant solicitors.

Decision

The Judge held that the Defendant solicitors were likely to have passed on the views of Counsel and the substance of the email itself. Importantly, it did not fall outside of the conduct of a reasonably competent solicitor to orally communicate the advice to their client. It was held that it might have been more appropriate for the Defendant to have forwarded on Counsel’s email as that would have avoided the present litigation altogether.

Despite the solicitor’s expression of an optimistic view of the situation, the assessment of risk itself was not held to be one that no reasonably competent solicitor would have taken. The Judge concluded that the Defendant solicitors did not therefore act negligently nor breach any terms of contract with the Claimants.

Comments

We are therefore provided with a timely reminder that solicitors will not be held as negligent simply because an action is unsuccessful. There is nothing against a solicitor expressing a more optimistic view on the proceedings than Counsel did, provided that the advice obtained from Counsel has been properly communicated to the client.