Tuesday Law Report: Standard of care owed by solicitors

15 June 1999: Balamoan v Holden & Co Court of Appeal (Lord Justice Evans and Lord Justice Brooke) 28 May 1999
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The Independent Online
THE COURTS should not apply too rigorous a standard of care when considering a claim for professional negligence against a solicitor in a small country town who had been instructed by a legally aided client in connection with a comparatively small claim, since a solicitor pursuing such a claim should always be anxious not to incur costs which would be irrecoverable from the other side, thus risking a reduction in his client's compensation from the Legal Aid Board.

The Court of Appeal allowed the plaintiff's appeal against the dismissal of his claim for damages for professional negligence against his former solicitor.

The plaintiff had retained the defendant firm to act as his solicitor between September 1988 and July 1993 in connection with his claim for damages for nuisance arising out of the construction of a supermarket close to his house. The plaintiff was advised in March 1993 that his claim was worth pounds 3,000 at most, and when he refused to accept that advice his legal aid certificate was discharged and the defendant's retainer terminated.

In August 1994, the plaintiff, acting in person, accepted pounds 25,000 and costs in settlement of his claim in nuisance. He commenced proceedings for damages for professional negligence against the defendant, alleging that it had failed to handle his claim with reasonable skill and care. The issue of liability was tried in the county court and the plaintiff's claim was dismissed. He appealed.

The plaintiff appeared in person; Jonathan Acton-Davis QC (Thomas Snell & Passmore) for the defendant.

Lord Justice Brooke said that, in the trial of a claim against a firm of solicitors for damages for professional negligence, there was a tradition that the courts did not need expert evidence because judges would be familiar with the standard of care which was reasonably required of lawyers. As the practice of the law became more and more specialised, the existence of that tradition might on occasion give rise to difficulties.

In the present case, the court was concerned with the standard of care reasonably to be required of a solicitor in a small country town who was instructed by a legally aided client to pursue what appeared to be a comparatively small claim. It was of critical importance for the courts not to apply too rigorous a standard in those circumstances, because when pursuing such a claim a solicitor had always to be anxious not to incur costs which he could not, if successful, recover from the other side, as otherwise the Legal Aid Board would reduce his client's compensation.

For those reasons, the court would necessarily place great weight in a case such as the present case on the judgment of the local circuit judge as to the standards reasonably to be required of local litigation solicitors. Having made all those allowances, the court was nevertheless of the clear opinion that between January 1989 and May 1991 the defendant had failed in the duty of care it owed to the plaintiff.

Since the court could not fail to be impressed by the detailed way in which the judge had written his judgment, it had to ask itself what had gone wrong. The answer seemed to be that, in the presentation of his case, the plaintiff had been his own worst enemy. He had been so worried about his case after so many years that he had completely overloaded the case with detail and allowed his imagination to run riot in a way that would have made Sir John Falstaff proud: see Henry IV, Part I, act ii, scene 4.

As a result it would have been very difficult for any judge to see the wood for the trees, whereas the task of the Court of Appeal, standing back from the emotion of the trial, might to some extent have been easier. If the judge had himself stood back and asked himself why the plaintiff had become so angry with the defendant, he might have examined the evidence in much greater detail than he had, and might not have been so ready to dismiss as unjustified the very strong complaints the plaintiff had made about the defendant.