Legal Update
16 June 2020

Solicitor and Barrister Professional Negligence High Court case – judgment expected shortly

This professional negligence case was heard in the High Court by Marcus Smith J on 12th June 2020. The hearing took place remotely, using Skype For Business. It concerns an allegation of negligence by a solicitor and barrister in relation to under settlement of personal injury claim.

Until judgment is handed down the names of the parties to the action are protected in this article and the case is referred to as - E v  XYZ Solicitors and M, a barrister.

Howard Elgot acted for XYZ Solicitors. Judgment has been reserved but when handed down, it will be of significance because there is no direct authority on the issue litigated.

The Claimant - E - suffered brain damage in a road traffic accident. Primary liability was admitted by the driver (D). E accepted a Part 36 offer, against the advice of her solicitors, who were XYZ Solicitors, and as a result the claim was assumed to have settled.

After many years a new claim was brought by E against XYZ Solicitors alleging that her road traffic claim was under-settled at a time when she did not have litigation capacity.  Her barrister, M, was also sued.

If E did not have litigation capacity, the acceptance of the Part 36 offer by E was null and void and she can still sue D.

E, through her new legal team, has refused to sue D on the basis that they thought the D’s insurers would probably dispute the fact that she didn’t have litigation capacity and so they would rather sue her previous lawyers.

Because of the long delay, if she did not have litigation capacity and now sued D, she would be awarded about double the value of her original claim. This odd situation is caused by comparing the damages that would have been awarded at the discount rate of 2.5% which applied at the date of settlement and for many years thereafter, with the damages payable at the current discount rate of minus 0.25%.

XYZ Solicitors and M, a barrister, have applied to strike out E’s claim against them, or alternatively for her claim to be stayed until she pursues her claim against D.

There is no direct authority on the issue litigated.

Judgment was reserved.