Mary Ward Legal Centre: Went above and beyond
A barrister was not negligent in his advice over possession proceedings and the law centre that instructed him was entitled to rely on his expertise, the High Court has ruled.
Solicitors “cannot simply rely on a barrister’s advice without exercising their own – expert – independent judgment”, but here they did, said His Honour Judge Tindal, sitting as a High Court judge.
Anna Christie sued the Mary Ward Legal Centre (MWLC) in London and barrister Andrew Dymond over their legally aided advice on possession proceedings brought against her in 2012-13 by the London Borough of Southwark.
Southwark claimed forfeiture for non-payment of a judgment of £7,815 for service charges, plus interests and costs.
Ms Christie claimed she was negligently advised to sell her flat – which she did a month after a possession order was made – when she actually had good defences to possession.
HHJ Tindal dismissed the claim against the barrister, finding among other things that Mr Dymond’s was right not to advise or plead points he did not consider were properly arguable.
The judge went on to “exonerate Mr Dymond from any criticism whatsoever. He was not given crucial information and gave exemplary advice on the information he had”.
Mr Dymond had waited over a decade to clear his name “and he has emphatically done so”.
The judge went on to hold that the MWLC was entitled to rely on the barrister’s advice.
“Within their specialist field… solicitors cannot simply rely on a barrister’s advice without exercising their own – expert – independent judgment on a particular point. Moreover, that expert judgment may well enable them to tell more easily whether the barrister’s advice is ‘obviously or glaringly wrong’.
“However… just as it is a normal use of the Bar for a solicitor to get a barrister’s advice on a particular field where they have no specialist experience, it is normal for a solicitor to get a barrister’s advice on a point outside their specialist experience (assuming that they have sufficient competence and expertise to be handling the case in the first place).
“That will be a particular issue for specialist legal aid solicitors who need a barrister’s advice on a technical point that does not commonly occur in the normal run of their caseload, since unlike solicitors in large commercial firms, they cannot simply refer the client to a colleague in the relevant department, as there probably will not be one.”
This was what happened here, HHJ Tindal decided. While the MWLC had housing and debt specialism, the centre and its lawyers “generally had very little experience in the technicalities of leases and relief against forfeiture. That simply only rarely arose in the more typical social housing cases they conducted”.
It was “wise” to instruct a “true specialist in that field… and in my judgement, they were entitled to rely on his advice”.
It was clear too that the solicitors also exercised their own individual judgment, such as checking with Mr Dymond whether the Equality Act 2010 might afford a defence.
HHJ Tindal added that they were “more than ‘reasonably competent’ as practitioners in the fields of debt and housing”.
He explained: “They recognised when they needed specialist input from counsel and got it. They patiently took C’s instructions (even when intemperately expressed as in January 2013). They dealt efficiently and effectively with Southwark and the court, skilfully negotiating consent orders…
“Indeed, Ms Talboys [one of the solicitors] even offered to assist C with an application for relief from forfeiture after C had dis-instructed [MWLC], which went above and beyond the call of duty.”
The judge concluded by noting the three advocates – Mr Petts, Mr Lipson and Mr Ettridge – who represented the MWLC pro bono “in the finest of all legal traditions, as indeed having dismissed the allegations against it, I can now say that centre reflects”.
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