Moy v Pettman Smith should provide comfort to those advising clients at the ‘door of the court’

David Moy fractured his leg playing football and instructed solicitors Pettman Smith to claim against the health authority for negligence following an operation. The health authority admitted liability, but medical evidence supporting Moy’s continuing disability and its cause was not served in time. Pettman Smith’s application for leave to adduce additional evidence and to adjourn the trial was refused at first instance and on appeal. The trial was set for April 1998 and the intention was to apply again for leave.

The health authority paid £120,000 into court, and later increased this to £150,000. The counsel, instructed by Pettman Smith, advised that the ‘floor’ of the claim was £200,000. Moy accepted her advice not to accept the payment into court.

At the court door, the health authority said the offer of £150,000 was open until the judge came into court. The counsel advised Moy that she was hopeful that the further evidence would be allowed, and that it would be better not to accept the monies in court. The counsel bore in mind that, if the application failed and Moy was awarded damages which did not reflect his claim for his continuing disability and future loss, he could claim against Pettman Smith for negligence. However, the counsel did not discuss this with Moy, or say that her view was that there was a 50-50 chance of succeeding in the application.

Once it became apparent that the application was unlikely to succeed, the counsel advised Moy to settle. He accepted £120,000 and commenced proceedings against Pettman Smith and the counsel for negligence. Pettman Smith made a Part 20 claim against the counsel. The first instance decision that Pettman Smith was negligent has not been challenged. However, the judge concluded that the counsel was not negligent in failing to advise Moy to accept £150,000. Pettman Smith appealed against the dismissal of the claim and the Part 20 claim against the counsel.

Although the majority of the Court of Appeal agreed that the counsel’s advice not to accept £150,000 was not negligent, they held that the counsel had been negligent in failing to give more detailed advice to Moy.

The House of Lords considered that the Court of Appeal had been too harsh and declined to follow its approach. Baroness Hale noted that, in contrast with medical negligence law, there is not a clear set of principles governing how an advocate’s advice should be given. Furthermore, the advice was given at the court door, and Baroness Hale concluded that there is a respectable body of professional opinion that “the client pays for the advocate’s opinions, not her doubts”.

Lord Hope made the point that, in a claim for professional negligence, the court will usually expect to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from, but no such evidence was adduced in this case.

Practitioners often encounter resistance to proposals that there should be evidence from legal experts. The prevailing view has been that judges will be able to form their own view and that the expense of expert evidence is not justified. The comments made by their Lordships in this case represent a shift away from this view.

It remains to be seen whether these comments on expert evidence will mean that those involved in legal professional negligence claims will start seeking to obtain expert views on standards of care in all fields of legal practice. However, it seems that lawyers can continue confidently to give practical advice at the court door. The House of Lords’ decision demonstrates an intention to ensure that the courts will acknowledge the particular pressures on advocates when advising at the door of the court.

Chloë Phillips, assistant solicitor, Reynolds Porter Chamberlain