Solicitor advocate goes it alone

When John Mackenzie first instructed counsel on a Lloyd's case he did not expect to end up taking it on himself, says Roger Pearson. A High Court win earlier this year in a complex negligence case against an accountancy firm helps strengthen the arguments in favour of increasing the ranks of solicitor advocates.

When John Mackenzie, an associate solicitor at Sheratte Caleb & Co, took on the case, which involved a cousin who had lost money on the Lloyd's market, he instructed counsel.

However, the counsel he had instructed gave him what he describes as a "hard time" over the case and displayed an apparent lack of confidence in it. As a result, Mackenzie, who was admitted in 1979 and was one of the earliest solicitors to gain solicitor advocacy status for both civil and criminal courts, decided it was time to go it alone.

After surmounting what he calls a "mountainous learning curve" to get to grips with the case, Mackenzie emerged victorious after a two-week fight in the court of Deputy Judge James Goudie. Mackenzie's cousin, Keith Faulks-Underwood, was awarded £736,605 and, in addition, the other side were ordered to pay costs which, with their own, are likely to reach about £300,000.

The case, Faulks-Underwood v Hamiltons & ors, centred on Lloyd's losses of more than £300,000 incurred by Faulks-Underwood between 1985 and 1992. Faulks-Underwood blamed his accountants, saying he left everything in their hands and considered that they had let him down by failing to give him appropriate advice on his Lloyd's investment.

"He came to me and, after looking at the situation, I considered he had the basis for a negligence claim against the accountants," says Mackenzie. "I took the view that they had breached their contract with him in failing to advise him properly in respect of Lloyd's."

Finding experts was an early problem however. Mackenzie says the people he found who understood the intricacies of Lloyd's fell into two categories – those who had sustained losses, and were therefore potentially biased in any advice they gave, and insiders who did not want to speak out against Lloyd's.

"I believed in the case and in the end decided that the only thing was to do it myself," says Mackenzie.

Eventually Mackenzie found an expert who could provide the necessary information with which to prepare the case. It finally went to court earlier this year, about two and a half years after proceedings commenced.

The case lasted two weeks and, at the end of the first week, which he describes as "awful", Mackenzie says the other side suggested he "throw his hand in", adding that if he did they would not go for indemnity costs. It was an invitation he resisted and the case lasted a further week, after which judgment was reserved until 26 March. On this date, Mackenzie discovered he had notched up a major victory for his cousin.

It also has to be seen as a major victory for solicitor advocates generally. "Obviously, there are cases where specialist counsel are necessary and important," says Mackenzie.

"But my approach now is that I begin any case on the basis that I will be seeing it through to the end and arguing it in court. I believe this approach concentrates your mind in a completely different way to cases where you have instructed counsel. It creates an overwhelming feeling of responsibility. Everything stands or falls with you."