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DWF Professional Negligence Strike Out Success and Clarification on Lawyers' Scope of Duty

29 April 2021

John Bennett and Jo Batchelor, acting on behalf of a barrister client, have successfully struck-out a counterclaim which sought to impose a duty on barristers in respect of instructing solicitors' past or future fees, when the matter settles on terms the solicitors considered unfavourable.

The ruling provides  important clarification of a barrister's duty of care and is testament to the benefits of a robust strike-out application, brought in the early stages of litigation ( See also Fortune Favours the Brave - Naqvi v Harris Cartier Ltd & Ors [2019] EWHC 3042 QB)

Jo Batchelor and Alicia Barrett have also had another successful strike out, in a recent case brought against a defendant financial advisory firm, which is considered below.

Background - The Facts of the DMC v EKH case

The case of McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525 (Comm) was a straightforward claim brought by a claimant barrister, against her instructing firm of solicitors in respect of unpaid fees.

The solicitors served a counterclaim alleging that, as a result of the barrister's alleged breach of contract and negligence, the underlying patent action was resolved on unfavourable terms. This, the firm alleged, resulted in it being unable to recover their fees under a CFA with the lay client.  The central issue here was whether the barrister owed her instructing solicitors a duty of care in this regard.

The Judgment in the DMC v EKH case

The barrister applied to strike-out the defendant law firm's defence and counterclaim and HHJ Worster, sitting in the High Court, found in the barrister's favour, against the imposition of a contractual or tortious duty.

HHJ Worster found that under the Terms, services are provided to the lay client, reflecting the traditional relationship between counsel, solicitors, and lay clients. He rejected the suggestion that there was a concurrent contractual duty to solicitors. He also rejected the imposition of a common law duty, absent a contractual duty, on the basis that the parties were “free to make their own bargain”.

HHJ Worster gave judgment for the barrister's capped fee, any interest due and costs (a proportion on an indemnity basis).

Comment on the DMC v EKH case

The scope of the duty that barristers owe to lay clients was held not to expand to protect instructing solicitors from loss, notwithstanding the introduction of contractual terms.

The judgment signals that the standard contractual terms and the common law position do not provide a basis for solicitors to look to barristers for recovery of any lost fees incurred as a result of a case settling on allegedly unfavourable terms.

This important clarification over the extent of barristers' duties to its instructing solicitors will help to guard against the floodgates being opened for intra-lawyer negligence claims.

Conclusion and benefits of strike-out applications

The case is also a reminder of the significant benefits of a robust strike-out application, brought in the early stages of litigation.  It is a good example of how clients can benefit by saving a significant amount of time and cost by concluding matters in their favour, without the need to proceed to a full trial.

DWF recently succeeded again in striking out an action, this time brought by a claimant litigant in person who claimed that, by reason of the advisory firm's alleged negligent financial advice, it had mis-sold him a pension product in 2011 causing him to incur financial loss. The claimant sought to rely on the alleged deliberate concealment of documentation to extend the limitation period under s32 of the Limitation Act 1980.

DWF brought a strike-out application on the basis that the alleged deliberate concealment was not directly relevant to the Claimant's cause of action. The judge found in favour of DWF's client, striking out the claim and ordering the Claimant to pay the Defendant's costs.

For further information please contact:
John Bennett – Partner
Jo Batchelor – Director
Alicia Barrett – Trainee Solicitor

Further Reading