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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dunhill v W Brook And Co & Anor  EWHC 165 (QB) (01 February 2016)
Cite as:  EWHC 165 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|W Brook and Co. (1)
Mr J. Smith QC and Mr G. Campbell (instructed by Mills and Reeve LLP) for the First Defendant
Ms A. Day QC and Ms C. Guthrie (instructed by Weightmans LLP) for the Second Defendant
Hearing dates: 2 – 8 December 2015
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE :
i) what duties the Defendants owed the Claimant;
ii) whether the Defendants breached those duties ina) (to the extent they did so), advising her to settle for £12,500;b) (to the extent they did so) advising the Claimant to settle the whole action with or without any mechanism for provisional damages,given thati) the trial was listed for a hearing on liability only;ii) the medical evidence was incomplete;iii) the medical evidence indicated a risk of epilepsy; and/oriv) the claim had a much higher value than pleaded.
iii) whether the fact that the solicitors relied on Mr Crossley (generally and in this case) absolved them from any duty to advise independently of Mr Crossley.
i) 16 August 2000 by Dr DW Zawadski, a clinical psychologist; and
ii) 13 December 2002 by Mr Nick Morton, a consultant neuropsychologist.
i) overstating the risk of failure to establish liability;
ii) overstating the likely levels of contributory negligence;
iii) failing to realise the potential size of the claim or future heads of claim and to advise the Claimant on those;
iv) failing to realise that there was a potential claim for provisional damages and that further expert evidence would be needed on this head of claim alone;
v) advising that only two options were available; that is, applying for an adjournment, or settling the whole claim.
The witness evidence about the accident
Mr Ramnani's first report
Miss Greenan's first advice
Mr Ramnani's second report
The Rook report
Miss Greenan's second advice
The solicitors receive the Claimant's case notes from hospital
Dr Zawadski's report
My other findings about the conduct of the personal injuries claim
The case management conference on 3 September 2002
The run up to the trial
Mr Morton's report
The booking of Mr Crossley
Contact between the solicitors and the Claimant in late December 2002
Mr Crossley's instructions
Was Dr Zawadski's report sent to Mr Crossley?
Contact between Mr Marsh and Mr Crossley on 23 December 2002
Mr Marsh's efforts to get Mr Morton's report
Mr Burgin rejects the Part 36 offer
Mr Crossley's advice
Further contact between the solicitors and Mr Crossley in January 2003
Mr Morton's report reaches the solicitors
Mr Crossley's preparation for the trial
7 January 2003
The meeting on 13 January 2003
The cost of the Rook report
The re-opening of the claim against Mr Burgin
i) advising that £12,500 was a reasonable sum to settle for, the first barrister having advised that the claim was worth about £40,000;
ii) overestimating the negative impact on the claim of the absence on the date fixed for trial of Sam Tasker and of the failure to obtain permission to rely on a report of expert in accident reconstruction;
iii) failing to appreciate from the medical evidence and from the Claimant's apparent difficulty in accepting advice that there might be an issue about the Claimant's capacity, and that she did indeed lack capacity, so that the settlement would need to be approved by the court;
iv) ignoring the evidence of a consultant neuropsychologist, Nick Morton, that the Claimant had suffered a severe brain injury in 1999 and that she still had extensive cognitive, behavioural and emotional difficulties as a result;
v) failing to appreciate that the Claimant had a cognitive deficit (which was apparent because she came to court with her mental health advocate) and that that might have been caused by the accident;
vi) failing to appreciate that there was a risk of epilepsy, that provisional damages should have been claimed in respect of that risk and that the settlement sum should have reflected it;
vii) taking instructions from a client who lacked the capacity to give them;
viii) advising that the whole claim be settled at a liability-only trial for too little when the medical evidence 'strongly' suggested that the Claimant would need further treatment.
The relationship between the liability of Mr Crossley and of the solicitors
i) whether the solicitors discharged their duties by sending a trainee to court on 7 January 2003; and
ii) whether Mr Marsh did, and was reasonably entitled to, rely on Mr Crossley's advice.
I accept Mr Smith's analysis of the relationship between the liability of Mr Crossley and of the solicitors.
Was Mr Crossley negligent in settling the claim for £12,500?
i) Mr Crossley failed to exercise reasonable care and skill in analysing the evidence he had, so that he overestimated the risks ona) primary liability andb) contributory negligence.
ii) Mr Crossley should not have advised on a full and final settlement at all, because he could not give properly informed advice about quantum, or should not have done so without getting the reports of Dr Zawadski and Mr Morton.
Were the solicitors negligent?