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Don't shoot the messenger

View profile for David Rogerson
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The Court of Appeal has recently confirmed the ruling of the High Court that a barrister and their instructing solicitors were not negligent in giving advice to a client to settle her claim for compensation during a trial following a road traffic accident.

In the matter of Dunhill v W Brook & Co [2018] EWCA 505 15 March 2018, the Court heard that the Claimant had been knocked over by a vehicle whilst crossing a road, sustaining injuries. She made a claim for compensation and the matter proceeded to a trial on liability only (the value of the claim not having been finalised at that stage).

At the trial, a crucial witness did not attend and the barrister representing the Claimant advised her that made her case much more difficult to win and even suggested her prospects of success were less than 50%. Discussions were had and an offer was made to conclude the claim in the sum of £12,500 plus costs. As the barrister felt it was more likely than not that the liability trial would be lost, he advised it was a reasonable settlement. The Claimant concluded her claim on that basis but later regretted the decision and sought to set aside the settlement believing it was undervalued. She instructed other solicitors to claim professional negligence against both the barrister and her former solicitors.

Having lost the claim in the High Court, the claimant appealed to the Court of Appeal but again was unsuccessful. The Court of Appeal said that the barrister did as much as he could in the circumstances at the time. Hindsight may have questioned the decision and advice but that should not decide the matter.

This just goes to show that trials are a risky business and anything can happen. The failure of the witness to attend affected the prospects and the Claimant could have easily lost the original trial and got nothing.

Sometimes important decisions have to be made during a trial as prospects of success and the risks of losing change. If with hindsight they appear to have been incorrect, that does not necessarily mean it was the fault of the advisers who delivered the “message”.

Seek specialist advice by contacting David Rogerson at Chattertons 01636 675563 or