UK: Litigation Risk

A recurring issue for litigation lawyers is how best to advise clients on the merits of cases and their settlement value. The giving of optimistic advice can lead to a client who proceeds to trial and is disappointed by the outcome complaining that they were not properly advised about the risks. The giving of pessimistic advice can lead to a client who settles and later regrets doing so blaming their lawyer. The giving of advice which becomes more negative as trial looms may lead a client to question their legal team’s stomach for the fight, or to lose confidence in their team’s expertise.

A number of decisions in recent years have considered the question of when a lawyer will be found to have given negligent advice in relation to the prospects and settlement of litigation. For example, in the case of Levicom v Linklaters (2010), solicitors’ advice had been expressed in terms that the contractual provision upon which a dispute turned was clear, when in fact the position was more complicated. The client had, on the basis of that advice, rejected settlement offers and commenced arbitration proceedings. It was found that the solicitors had given advice to the client in overly positive terms, and that had caused the bringing of the proceedings. Conversely, Berry v Laytons (2009) is an example of a case where solicitors were found to have conveyed a negligently pessimistic view of the prospects of successfully litigating a claim, leading to the client settling the claim on terms which were less favourable than they should have been.

While it remains vital for solicitors to take care in the formulating, delivering and recording of advice on litigation, the recent Court of Appeal decision in Langsam v Beachcroft LLP (2012) offers some reassurance to litigation lawyers that the courts will not take too prescriptive an approach to the way in which they give their advice. The decision will also be of interest to solicitors who instruct leading counsel to advise on the merits and settlement in the lead up to trial.


The claimant businessman, Mr Langsam, instructed Hacker Young, a firm of accountants, to advise him in relation to negotiations with the Inland Revenue about obtaining non-domiciliary status for tax purposes. The Inland Revenue ultimately declared that he had such status. In due course, Mr Langsam and his then business

partner entered into an equity release arrangement which involved a bank making a loan to the partnership so as to enable the partners to withdraw equity and to invest the funds released. The advantage of this to Mr Langsam was that, as a non-domiciled person, he was able to invest the sums out of the jurisdiction, with consequent tax benefits.

Mr Langsam then brought a professional negligence claim alleging that Hacker Young should have realised that he was entitled to non-domiciliary status much earlier than they did and that, had they done so, he would at an earlier stage have entered into an equity release arrangement, invested the released funds offshore and obtained the tax benefits of doing so. This claim gave rise to difficult questions of causation and loss, with damages falling to be assessed on a loss of a chance basis taking into account a number of variables.

Beachcrofts were instructed to act for Mr Langsam in the claim and, in due course, instructed leading counsel. The solicitor at Beachcrofts with responsibility for the matter gave advice, including on quantum, from an early stage. In the run-up to trial, leading counsel advised on various matters including evidence, quantum and settlement. The proceedings were ultimately settled by consent shortly before trial, with Hacker Young paying Mr Langsam GBP 1 million inclusive of costs.

Disgruntled with that outcome, Mr Langsam subsequently brought proceedings against Beachcrofts. He claimed that they had given excessively cautious and pessimistic advice in relation to settlement in the run-up to trial. He appears to have been particularly aggrieved that the advice which he received in the period just before trial was less optimistic than that which he had been given previously, and also complained that he had only been given conservative advice about settlement based on figures at the bottom end of the bracket of what he might recover, rather than being advised about the spectrum of possible outcomes at trial. He also contended that Beachcrofts had failed appropriately to advise on the importance of certain witness evidence and had failed to obtain timely valuations of partnership assets. He claimed that these breaches of duty prevented him from recovering a total of around GBP 3 million from Hacker Young.

Beachcrofts denied negligence and argued that they had followed advice received from leading counsel. They also brought a counterclaim for fees which they contended were due under a conditional fee agreement. Neither party brought any claim against counsel.

The trial judge dismissed Mr Langsam’s claim, finding no negligence. Mr Langsam appealed.

Advice on settlement

The Court of Appeal upheld the trial judge’s decision that the advice which operated on Mr Langsam’s mind in settling the claim had been given not by Beachcrofts but by leading counsel. However, the Court of Appeal also considered the content of the advice given and found that, whilst it was on the conservative side, it was not negligent. A lawyer is not in breach of duty just because he does not provide an indication of the bracket or spectrum of likely quantum but only a figure at the bottom end of the bracket, provided that the advice given falls within the range of advice which a reasonably competent lawyer could give. Mr Langsam’s contention to the contrary was described as entailing “an over-prescriptive approach as to the way in which legal advice is given”. In any event, Mr Langsam had been given detailed advice on the computation of loss and had received more optimistic advice from Beachcrofts at an earlier stage – and the fact that there had been a change in the advice given did not of itself mean that the later advice was negligent.

The decision therefore offers some reassurance to litigation lawyers that the courts recognise that giving advice on the prospects of litigation and on settlement is an art rather than an exact science. Some lawyers are naturally more bullish, and others more cautious. That does not necessarily mean that the views or approach of either are wrong or negligent. The key is that the views expressed must be within the range of views that a reasonably competent solicitor could hold.

The involvement of counsel

Also of interest for litigation solicitors and their insurers is the decision in relation to Beachcrofts’ argument that they were relying on leading counsel and that it was his advice, not theirs, which was the operative advice.

The underlying principle in this area is that where a solicitor properly instructs leading counsel, and counsel gives considered advice to the client, the solicitor’s duty is only to apply his mind and expertise to the advice received and if, but only if, he considers that counsel’s advice on an important point is seriously wrong, to give separate advice. The more specialist the nature of the advice given by counsel, the more reasonable it is likely to be for a solicitor to accept it.

That principle has been upheld and developed in Langsam. By a majority, the Court of Appeal upheld the trial judge’s finding that the advice relied upon by Mr Langsam in settling the claim was that given by leading counsel, that in the circumstances the only duty on Beachcrofts was to apply their minds (including their specialist expertise) to that advice and to consider whether it was “obviously or glaringly wrong”, and that since the advice was not wrong (still less obviously or glaringly so) they had not breached their duty. The judge described the role of solicitors in such circumstances as a “whistleblower” role. The Court rejected Mr Langsam’s argument that Beachcrofts had given the relevant advice jointly with counsel, or that Beachcrofts owed more than a “whistleblower” duty because they had specialist professional negligence experience and the case was a professional negligence one. The Court further found that the fact that a solicitor gives advice which is consistent with advice previously given by leading counsel when leading counsel is not present does not mean that the solicitor has accepted an independent duty in relation to that advice.

It should be noted that Lord Justice Longmore departed from the judge’s decision and that of the majority of the Court of Appeal on one point. He considered that, on the facts of the case, it appeared that Beachcrofts had continued to advise after the instruction of counsel. He therefore commented that if the advice on settlement had been negligent, Beachcrofts should have been responsible for that negligence jointly with counsel. However, since he agreed that the advice given was not negligent, this point of disagreement was immaterial to the decision.

The Court of Appeal’s decision therefore confirms that a solicitor will not be under a duty to do more than alert a client to “obviously or glaringly wrong” advice just because he or she has specialist expertise in the area of law involved in a case. In addition, the repetition by a solicitor of leading counsel’s advice will not of itself amount to the acceptance of an independent duty in relation to that advice. The decision is therefore likely to be welcomed by solicitors and their insurers. However, there is a need for caution. As the dissenting judgment of Lord Justice Longmore underlines, decisions on the respective roles and duties of solicitors and barristers are fact-sensitive and there may well be circumstances in which a court will find that both a solicitor and a barrister were giving relevant advice on a case. Even the majority gave the example of the situation where a solicitor uses leading counsel effectively to “frank” his own advice.

In practice: a note of caution

The recognition by the Court of Appeal that different litigation lawyers may reasonably take a range of different approaches to the giving of advice on settlement is to be welcomed by litigators and their insurers. However, risk management remains as important as ever. What can be done to try to reduce the risk of being on the receiving end of claims arising out of the handling of litigation? Some points to keep in mind include the following:

  • Advice should be given in clear and unambiguous terms. Levicom highlights that, whilst a solicitor may tailor the manner in which he gives advice to the particular client, even sophisticated clients must receive clear advice

  • Both the positives and negatives of a piece of litigation, and the options available for taking the matter forward, should be spelled out for the client. Even following Langsam, it is likely to be a sensible precaution, wherever reasonably possible, to set out the spectrum of possible outcomes of the litigation as well as indicating where, in the lawyer’s professional judgment, he feels a reasonable settlement would lie

  • Particular care should be taken if advising in percentage terms: in Levicom the Court of Appeal considered that advice that prospects of success were in the region of 70% could reasonably be relied upon by the client as indicating that the case on liability was a “home run”

  • If possible, advice should be given in writing. If this is not possible, for example because the advice is given at court, then (as ever) it should be recorded in a detailed attendance note and, ideally, followed up afterwards in a letter to the client. Although litigation solicitors are generally good at making attendance notes, this practice can sometimes fall by the wayside where, for example, settlement discussions take place at the door of court and result in a settlement agreement recording what has been agreed between the parties and concluding the matter. Barristers are also well advised to keep detailed attendance notes, as far as is reasonably practical.

  • Where counsel is involved in meetings at which advice is given, or in settlement discussions, it may be prudent for the solicitor to ask counsel to review the solicitor’s attendance note. Likewise, barristers may wish to ask for copies of their instructing solicitors’ attendance notes so as to satisfy themselves that their contents are complete and accurate

  • The recording of advice and of the reasons for that advice is particularly important where there has been a change in advice, particularly if the advice has become less optimistic. This should help to dispel any impression on the part of the client that his legal team is simply ‘wobbling’ close to trial

  • Although Langsam has confirmed the availability of the defence of reliance on counsel even to specialist solicitors acting within their particular areas of expertise, all solicitors should keep in mind that the defence will not be available unless counsel has been properly instructed and provided with all of the necessary documentation

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.