Snap Decisions: Discharging the Common Law Duty of Care as a Solicitor Advocate

Tuesday, 15th December 2015

In a recent County Court case, Peter Tsiminos and Janet Williams of Caytons Law, with the assistance of Counsel (Peter Morcos of 4 New Square,) secured the dismissal of a claim against a solicitor advocate.

The Defendant solicitor represented the Claimant, Mr R, in the Magistrates’ Court in respect of charges of (1) a breach of a restraining order in favour of his estranged wife stemming from a domestic incident; and (2) two counts of criminal damage at her house (forcing entry and breaking a porcelain elephant caught in the crossfire of their argument). Mr R and his wife had a tempestuous relationship and he already had several convictions for domestic violence, largely fuelled by their problems with alcohol.

Mrs R had given two statements to the police with convincing recollections of the events on the night in question, and confirmed that she would be willing to give evidence. The Magistrates’ Clerk was familiar with the couple from previous domestic violence cases against Mr R. On those occasions, Mrs R had retracted her statements prior to the hearing and refused to give evidence. On the day of the hearing, Mrs R again seemed to want to retract her evidence, and the Magistrates’ Clerk liaised with the CPS prosecutor about serving Mrs R with a witness summons. A spouse of an individual facing criminal charges may only be compelled to give evidence against their partner if the offence involves violence or threats of violence against them. The Defendant solicitor did not consider that Mrs R could be compelled to give evidence against her husband, the actual charges not relating to violence. He raised the issue of compellability with the Magistrates’ Clerk, but the Clerk seemed convinced that this was a domestic abuse case, and confirmed the Witness Summons. Mrs R gave evidence against her husband, who was convicted and later sentenced to a custodial sentence of 52 weeks.

Mr R appealed the criminal conviction arguing that his wife was not a compellable witness. Mrs R informed the appeal judge that she did not fear for her safety at the time of the incidents, and, not being compellable, she did not give evidence. Without this, the conviction was overturned.

Mr R sued the Defendant solicitor for not making further representations at the original Magistrates’ Court hearing that Mrs R was not a compellable witness, and sought damages for the time that he was imprisoned.

At the County Court trial, the Judge determined that, on the balance of probabilities, Mr R had committed the acts alleged, but there was an issue as to whether his wife would give evidence; the Defendant solicitor had made representations on compellability and the Magistrates’ Clerk had found Mrs R to be compellable. He considered that the Defendant solicitor was entitled to make the strategic decision not to make any further representations which could risk prejudicing Mr R’s defence, as it might be viewed that he was deliberately seeking to dissuade his wife from giving evidence. The Judge found that the Defendant solicitor’s actions were well within the range of a reasonable criminal solicitor advocate, and he was therefore not negligent. In 2000, in Arthur J S Hall –v- Simons, the House of Lords (as it then was) removed the long-standing immunity of advocates from negligence suits. However, this case confirms, as their lordships had indicated, that an advocate’s alleged breach of duty should not be judged in hindsight, but, rather, by taking into consideration that they are required to make snap decisions of judgment based on events as they occur.

Albeit obiter, the case also gave useful guidance as to the appropriate level of damages if negligence had been established. The Judge would have awarded £10,000 to reflect the lesser period in prison (Mr R was not granted bail pending sentencing given the nature of the convictions and breach of prior bail conditions), taking account of the fact that Mr R had previously served a custodial sentence and that the crime was not such that he would be vilified by fellow inmates. As the prospects of acquittal were 50%, the damages would be reduced to £5,000 to reflect lost opportunity.

The Defendant solicitor and his Insurers decided not to settle the claim for commercial reasons, Mr R having the benefit of legal aid, considering it unpalatable to pay out money to an opportunistic claimant in such circumstances.

The decision is testament to criminal defence solicitors, like the Defendant, who work long and unsociable hours, recognising that they have to make difficult judgment calls on a daily basis. Professional Indemnity Insurers will welcome the Court’s appreciation that Hall –v- Simons is of limited effect in practical terms.

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