pnBlawg

the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Whose advice is it anyway?

Langsam v Beachcroft LLP [2012] EWCA Civ 1230 concerned settlement advice, which the Claimant contended was unduly pessimistic. The claim was dismissed, the judge at first instance and the Court of Appeal unanimously agreeing that the advice provided was reasonable. But the case raises a very interesting question about a solicitor’s duty to advise – and liability for such advice – once counsel is on board.

 

It was common ground between the parties that, once counsel instructed, a solicitor does not abdicate his responsibility for the advice. It may be that the solicitor and counsel advise jointly. It may be that the solicitor provides further or different advice to counsel. In any event, the solicitor must apply his or her mind to the advice received, and the solicitor will be liable to the client if counsel’s advice is obviously or glaringly wrong (Locke v Camberwell HA [1991] 2 Med RD 249, approved in Ridehalgh v Horsefield [1994] CH 205).

 

Here, leading counsel provided advice which the defendant solicitor agreed with. The solicitor had advised in detail before counsel was instructed, and continued to do so on a day-to-day basis afterwards. The advice complained of was provided by the solicitor after leading counsel had been instructed, and was consistent with leading counsel’s advice.

 

The majority of the Court of Appeal analysed the situation to be one where the principal advice was provided by leading counsel and was (in essence) repeated by the solicitor. The fact that the solicitor gave advice consistent with that previously given by leading counsel did not mean that s/he had accepted an independent duty in respect of that advice, over and above the “whistleblower” duty referred to above.

 

Longmore LJ dissented on this point: his view of the facts was that the solicitor and counsel were both evaluating and advising as to the worth of the claim, that the solicitor had done so before and continued to do so afterwards, and that, on the facts, the solicitor did not cease to give his own advice (or owe a duty in respect of such advice) once counsel was instructed. Had the advice been negligent (which it wasn’t) Longmore LJ would have held it to have been joint advice.

 

The final twist was that the Claimant – the appropriately named Mr Langsam (which means ‘slow’ in German) – complained that the judge took six months to hand down his judgment. The Court of Appeal noted that if there had been such a delay that the Court of Appeal could not be satisfied the judge came to the right conclusion, this could form grounds for an appeal. But in this case any delay had not prejudiced the decision.

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