A recent High Court decision in the UK considered the extent to which a solicitor is entitled to rely on counsel's advices in advising their client. This case will be of considerable interest to solicitors and their professional indemnity insurers as it helps to determine the parameters of the relationship between solicitor and barrister in the context of a solicitor's duty to their clients.
The claimants in this case were the Trustees in bankruptcy of Mr Shore. The defendant solicitors acted for Mr Shore in an unsuccessful claim against SFS for negligent advice in relation to the transfer of his benefits under various pension schemes. The Trustees claimed that Mr Shore would never have brought the SFS claim nor would he have taken a low settlement if the defendant solicitors had advised him that the claim was doomed to fail as it was time barred.
The facts demonstrated that the Statute of Limitations had always been known to all parties to be a central issue in the claim. Counsel's first advices on settling the Particulars of Claim raised the issue of limitation and indicated that they would have to show that Mr Shore did not have 'relevant knowledge' until three years previously. A number of documents, he found, suggested that Mr Shore had the relevant knowledge prior to this time and he determined that there was a 'very real risk' in this regard. He suggested however that Mr Shore may not have known that he had in fact suffered a loss until more recently.
SFS pleaded the Statute of Limitations in its Defence and limitation was discussed on numerous occasions between the defendants, Mr Shore and Counsel. On one occasion counsel told the defendant that the limitation issue undoubtedly carried some risk for Mr Shore but that overall he remained 'optimistic' about Mr Shore's prospects of success. Another note of a meeting with counsel reflected that the case on limitation was 'arguable'. Difficulties with limitation were also discussed at a meeting with both counsel and Mr Shore sometime later. Ultimately, the claim was found to be statute barred.
The Plaintiffs alleged in these proceedings that Mr Shore was not warned adequately or at all that his claims were statute barred. It was claimed that the defendant underplayed the risks and gave over optimistic advice on the prospects of success on the limitation issue.
On the facts, the High Court was not persuaded that the case on limitation was hopeless. It proceeded to consider however, in the event that this finding of fact was wrong, whether the defendant was negligent in not concluding this and advising Mr Shore accordingly. The Court found that it was 'highly relevant' on this point that the defendant instructed counsel who advised on the Statute of Limitations issue throughout. The Court found that a solicitor who reasonably relies on counsel's advice in giving his own is not negligent if the counsel instructed is competent, experienced and properly instructed. The solicitor is not entitled to abdicate responsibility and must exercise his own but, in a specialist area, is entitled to follow counsel's views unless they are 'obviously and glaringly wrong'.
The Court found that, in this case, both counsel were highly experienced and competent and there was no criticism of their instructions. They advised Mr Shore directly and, insofar as the defendants gave their own advice, they did so in reliance on the advice of counsel. Neither counsel thought at any stage that the claim was bound to fail on limitation grounds, although both expressed the view that the defence on the Statute of Limitations was a substantial risk. Further, there was nothing to indicate that counsels' conclusion was wrong such that the defendant ought to have come to its own conclusion that the claim was hopeless from the start.
While the Court noted that the advice about the limitation period was put in various ways, it was quite sufficient to indicate that the risk was considerable. The Court found that the defendant was not negligent in the circumstances.
This judgment should be taken as a warning by solicitors not to blindly follow counsel's advice in the event that they question it or consider that it might be wrong. It does however provide some comfort in relying on such advice unless there is reason to doubt its correctness. Solicitors must exercise their own judgement, but can reasonably take into account their and counsel's respective knowledge and experience in so doing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.