Emma Slade, a professional negligence lawyer, considers whether a solicitor can be negligent for being too cautious, or too optimistic.
Put three lawyers in a room and you will get four different opinions. At least that is the way the joke goes. But just because you get four different opinions, doesn’t mean that 3 of the solicitors have been negligent. Practising the law is not an exact science and a large element of it is entirely subjective. Some solicitors will be naturally more cautious and pessimistic, others more bullish and optimistic, but this does not mean that either view is wrong, let alone regarded as professional negligence – provided of course the law is right!
This was considered in the High Court case of Langsam –v- Beachcroft LLP & Others [2011] EWHC 1451 (Ch). Mr Langsam had instructed Beachcrofts solicitors to bring a claim against his former accountants. Beachcroft’s were doubtful about his prospects of success and so he settled the claim. Subsequently, he brought professional negligence proceedings against Beachcrofts on the grounds that they were “overly pessimistic” about the merits of his accountants negligence claim.
The Court dismissed the claim. Firstly, Beachcroft’s had obtained Counsel’s Opinion and whilst the Court found this was “conservative”, it was justifiably so as there were numerous hypothetical arguments which affected the value of the negligence claim. Secondly, they considered that Mr Langsam had been given sufficient information by Beachcroft’s to make an informed decision. Specifically, Beachcroft’s had written to Mr Langsam advising him of his prospects of success and that he would be likely to achieve a better settlement at trial. However, the Court found that Mr Langsam was keen to settle the matter before trial.
Ultimately, the Court concluded that different lawyers will have different views on the prospects of success of a solicitors professional negligence claim but so long as the those views are within a range that any reasonably competent solicitor would adopt, it means the pessimistic, as against the bullish solicitor (and vice versa) will not be considered negligent.
