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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Regent Leisuretime Ltd. v Amos  EWCA Civ 1184 (21 July 2006)
Cite as:  EWCA Civ 1184
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH DISTRICT REGISTRY
(THE HONOURABLE MR JUSTICE SIMON)
B e f o r e :
LORD JUSTICE MAURICE KAY
SIR PETER GIBSON
|REGENT LEISURETIME LIMITED|
|- v -|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR B LIVESEY QC and MR M CANNON (instructed by Messrs Reynolds Porter Chamberlain LLP, Twyford House, Kennedy Way, Tiverton, DEVON, WX16 6RZ) appeared on behalf of the Respondents.
Crown Copyright ©
"Both would seek guidance as to the extent to which, in the broadest terms, they can look to be compensated."
(1) Generally, a solicitor is entitled to rely upon the advice of properly instructed counsel.
(2) However, he must not rely on such advice without exercising his own independent judgment.
(3) If he thinks the advice is obviously wrong, he must reject it.
(4) The more specialist the field, the more reasonable it is likely to be for the solicitor to accept and act on counsel's advice.
(1) Mr Pearson was not retained by the company and did not owe a duty of care to the company. He was retained by Mr Amos and Mr Barton to pursue the appeal from the decision of Judge Weeks and advised them in relation to the contingent counterclaim.
(2) The duty owed to Mr Amos and Mr Barton extended to ensuring that consideration was given as to whether the financial benefit, which was the object of the counterclaim, could be recovered in that litigation or whether it might have to be recovered by another party (such as the Company) and in separate proceedings.
(3) Once Judge Weeks' order had been set aside, Mr Pearson's obligations were to act in relation to (a) the Bank's potential appeal to the House of Lords and (b) to the counterclaim.
(4) Mr Pearson was entitled to rely on the advice of Mr Jackson, who had been engaged in the case since December 1994 and had drafted the counterclaim, whereas Mr Pearson had only been retained since early 1999. The legal issues were in a specialist field in which Mr Jackson and other counsel had already advised. Although Mr Jackson appears to have been more optimistic than the other counsel that a way could be found round the Prudential principle, there was no stark divergence of views among counsel which might have caused Mr Pearson reasonably to reject Mr Jackson's advice or question his approach. If there was an appropriate alternative way of proceeding, it was reasonable to assume that Mr Jackson would have thought of it. There was no need specifically to instruct Mr Jackson on the Prudential principle since Mr Jackson was fully aware of that point and had indeed raised it with Mr Pearson.
(5) The possibility of the Company suing had been considered by counsel and had been rejected for reasons which were not obviously wrong.
(6) The advice of Mr Jackson was to proceed with a counterclaim. He had rejected the possibility of the Company bringing the claim and consequently the limitation issue did not arise.
"1.1. No duty of care was owed to the First Claimant (Appellant) by the Defendant (Respondent).
1.2 The Second Defendant was entitled to fully rely on Counsel which absolved him from exercising the duty of care upon him to take and exercise such a degree of care and skill as might reasonably be expected of a reasonably competent Solicitor by raising all necessary enquiries and making all necessary observations arising from Counsels advice, observations and/or the lack of such both to Counsel and to the Claimants including in particular Counsel's conflicting advice and opinions."
"The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do."
Order: Appeal dismissed.