Following the decisions in Minkin v Landsberg
and BPC Hotels Limited & Others v Wright Hassall LLP
, we consider whether or not there is an increasing opportunity for defendants to apply for summary judgment.
Applying for summary judgment – are new opportunities emerging?
With what feels like a steady stream of new case law emerging on the scope of the professional’s duty, is there a corresponding increased opportunity for defendants to rely upon one of the strongest weapons in their armoury – the application for summary judgment?
The test for summary judgment – CPR Part 24
To successfully strike out a claim under CPR Part 24, the defendant must be able to demonstrate, by taking into account the evidence available and that which is likely to be available but without conducting a mini trial, that the claim they are facing has no reasonable prospect of success. The application will fail if the claimant established that the claim has a realistic rather than fanciful prospect of success.
That there is a high threshold for the defendant applicant to meet is unsurprising. If successful, the claim is brought to an immediate end. But that should not in itself act as a deterrent. Neither should the costs of pursuing the application. While there will inevitably be some cases where the application is commercially difficult to justify, for those where the potential exposure is significant and/or there is a distinct opportunity for costs recovery, it is certainly an option worth considering.
What about the factually complex and document heavy claim?
One of the most common misconceptions is that a factually complex claim or one with significant underlying documentation will not be suitable for summary judgment. That this is not the case is supported by the recent decision in BPC Hotels Limited & Others v Wright Hassall LLP.
That the claim falls within this category is apparent from the fact that even a potted history takes up over half of the 21-page judgment – albeit perhaps unsurprising where the events had already given rise to three sets of proceedings and five related judgments (including one from the Court of Appeal).
To further complicate matters, the professional negligence alleged arose from the defendants’ retainers to advise on a professional negligence claim against the claimants’ former legal advisers, Brooke North. Therefore, to succeed, the claimants were required to establish that the defendants had acted as no reasonably competent solicitor/counsel instructed would do in failing to spot that Brooke North (the claimant’s previous legal advisors) had acted as no reasonably competent solicitor would in failing to provide alternative advice. There was, in effect, a double test of negligence.
Despite its complexity however, there was in reality little factual dispute between the parties, meaning the only issue to be determined was whether or not there were real prospects of a successful argument that a) the retainer required (expressly or by implication) the identification of further claims against Brooke North, and if so b) the alternative claim against Brooke North should have been identified.
Relying on the recent case law, most notably the decision in Minkin v Landsberg, Soole J found that there was “no arguable claim” that counsel should have gone beyond the scope of very defined instructions (all of which were shown to and approved by the claimants and/or detailed in contemporaneous notes) and that there was in any event a “major and fundamental problem” of funding for the claimants which would have prevented him from doing so. Further, the advice that it was alleged should have been provided by the original solicitors was “flatly at odds” with the claimants’ previously stated positions. Finally, given the corresponding manner in which the allegations against the solicitors were presented, there was “no basis for distinguishing the position”.
The defendants’ applications for summary judgment succeeded.
Arguably, the protracted history in BPC Hotels assisted the claim for summary judgment. As is apparent from the judgment, it provided a number of examples of inconsistencies in the claimants’ presentation of events and, whilst it could not be relied upon unconditionally, scrutiny of evidence which the claimants contended would need to be considered at trial. Although that will of course not always be the case it highlights the need to stand back and consider the wider picture.
Perhaps most importantly however, the decision is a useful reminder that the test against which the professional is to be judged is not one of a counsel of perfection nor one based on hindsight. It is of the reasonably competent practitioner acting within the confines of the retainer they have accepted, at the material time.
While it may be more straightforward to assess the confines of counsel’s retainer, so long as the retainer letter is carefully drafted, may the position of the solicitor providing an unbundled service soon become analogous? In any event, the decision supports the notion that a solicitor does not automatically have a wider scope of duty. Each case is fact specific and if, on those facts, there is sufficient evidence available to demonstrate a limited retainer and the provision of satisfactory advice within it, the same defence arises.
In essence, the principle is simple. If it feels like a poor claim, it probably is. Although there is always a risk that the decision will go against the applicant and otherwise avoidable costs will be incurred, the benefits of a successful strike out action cannot be understated. It is the defendant’s coup de grace and one which they should perhaps be more willing to pursue.