11 May 2015Print This Post

Jackson: Lawyers must say “bluntly” if claim has no prospect of success

Jackson LJ

Jackson LJ: partner did “no more and no less” than her duty

Lord Justice Jackson has dismissed a negligence claim against Veale Wasbrough, now national firm Veale Wasbrough Vizards, and the barrister it instructed to advise on a personal injury case.

Rejecting the claim against the law firm, Jackson LJ said: “It is frequently the duty of lawyers to give unwelcome advice to their clients.

“If they conclude that a claim or a defence has no real prospect of success, it is their duty to say so bluntly. It is no kindness to the client to soften the advice or to encourage them to press on anyway.”

The Court of Appeal heard the parents of a girl who suffered severe birth defects, and died at the age of 11, were advised by the firm not to go ahead with a medical negligence claim in 2001 and accepted that advice.

However, when they divorced eight years later, the father’s law firm advised the couple to sue Veale Wasbrough and barrister Karen Rea for professional negligence.

Jackson LJ said Jan Markland, the partner in charge of the case, did “no more and no less than was her duty”, when she wrote a discouraging letter to the girl’s mother.

Rejecting the claim against the barrister, he said: “Of course there were documents in the bundle that were supportive of the proposed claim for clinical negligence.

“As any practitioner in this field knows, that is the case in many clinical negligence actions which ultimately founder on either breach of duty or causation.

“Counsel advising a claimant, whether legally aided or self-funding, is under a duty to examine the supportive material critically and to consider how that material will play out in the crucible of the trial.

“That is what counsel did in the present case. She put the crucial documents to the claimants’ experts and ascertained how far they would really support the proposed claim.”

Delivering the leading judgment in Chinnock v Veale Wasbrough and another [2015] EWCA Civ 441, Lord Justice Jackson ruled that even if the lawyers had been negligent in 2001, the claim against them were statute-barred under section 14A of the Limitation Act.

He rejected the conclusion of the trial judge that Ms Chinnock had “actual knowledge” that her legal advice could have been wrong in 2001, and held that instead that she had “constructive knowledge” by reason of section 14A(10).

Under subsection 10, a person’s knowledge includes “knowledge which he might reasonably be expected to acquire” through “appropriate expert advice”.

Jackson LJ said: “Ms Chinnock was deeply unhappy with the legal advice which she received in 2001. According to her evidence she was dumbfounded. She therefore had a choice. She could either consult other lawyers or she could let matters rest.”

Jackson LJ went on: “I do not think that it was open to Ms Chinnock to abstain from further inquiries for more than six years (in this case eight years) and then to seek legal advice.

“It is true that during 2009 a firm of solicitors acting in the divorce proceedings happened to ask the husband if advice was required on any other matter. That, however, is not a justification for waiting eight years before taking legal advice.”

Mr Justice Roth agreed that negligence claims should be dismissed and in any case were statute-barred. However, on the limitation point, he agreed with the trial judge that Ms Chinnock had “actual knowledge”. Lord Justice Longmore agreed with Jackson LJ on both points.

By Nick Hilborne

Tags: , , ,


Leave a comment

We encourage you to be part of the Litigation Futures community but please note that all comments will be moderated before posting. We draw your attention to clause 5 of the Terms and Conditions of the site, which deals with user-generated content.