Jassi v Gallagher [2006] EWCA Civ 1065

Case No B6/2006/0003[2006] EWCA Civ 1065
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION
MR JUSTICE HART
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 25 th July 2006
Before
LORD JUSTICE MUMMERYLORD JUSTICE BUXTONLORD JUSTICE WILSON
Between
SARAN DASS JASSIAppellantSTANLEY GALLAGHERRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR RICHARD DE LACY QC (instructed by Messrs Nicholas Morris) for AppellantMR DAVID HALPERN (instructed by Messrs Addleshaw Goddard) for Respondent
JudgmentLord Justice Mummery :The appeal
[1]This is an appeal from an order made by Hart J on 21 December 2005. He dismissed with costs a professional negligence action brought by Mr Saran Jassi against his former barrister (the defendant). The claim arose out of instructions to the defendant in August 1997 and December 1998 to advise Mr Jassi generally about a notice served by Mr Jassi on his landlords, the Trustees of the Phillimore (Kensington) Estate, under the enfranchisement provisions of the Leasehold Reform Act 1967 (the 1967 Act). The validity of the notice was challenged by the landlords in proceedings, in which the defendant was retained as Mr Jassi’s counsel.[2]Permission for Mr Jassi to appeal was refused by the judge, but was granted by Neuberger LJ on 4 April 2006. A respondent’s notice was filed on 9 May 2006.

Outline

[3]On 8 May 1986 Mr Jassi bought a long lease of a house in Campden Hill Road, Kensington (the house). The lease was due to expire on 25 March 1997.[4]On 12 January 1994 Mr Jassi served a claim notice (the 1994 notice) under the 1967 Act on his landlords of his desire to have the freehold of the house.[5]On 11 March 1994 the landlords admitted the validity of the 1994 notice. They later sought to withdraw the admission and challenged the validity of the notice in County Court proceedings issued on 11 July 1997. They relied on 2 grounds:(a) Mr Jassi did not satisfy the residence requirement in respect of the house because of his residence or main residence at another property, 62 Calvert Road, Greenwich, London SE10, during the material time, a fact which he had concealed from the landlords in the 1994 notice; and(b) the claim notice did not contain the prescribed additional statutory particulars.[6]The landlords sought an order setting aside the 1994 notice. They claimed a declaration that Mr Jassi was not entitled to acquire the freehold of the house. They also asked the court to make a prohibition order against Mr Jassi to prevent him from serving further notices under the 1967 Act within the next 5 years.[7]At that time the relevant residence requirements were that the claimant under the 1967 Act should have occupied the house as his main or only residence, either for the last 3 years or for periods amounting to 3 years in the last 10 years: section 1(1) (b) of the 1967 Act.[8]Procedural provisions in paragraph 6(1) in Part II of Schedule 3 to the 1967 Act required the tenant’s notice of his desire to have the freehold to be in the prescribed form and to contain prescribed particulars as to “(d) the periods for which since the beginning of the preceding ten years and since acquiring the tenancy the tenant has and has not occupied the house as his residence, together with the following additional particulars about the periods for which during that time he has so occupied the house, that is to say,-(i) what parts, if any, of the house have not been in his own occupation and for what periods; and(ii) what other residence, if any, he has had and for what periods, and which was his main residence.” (i) what parts, if any, of the house have not been in his own occupation and for what periods; and (ii) what other residence, if any, he has had and for what periods, and which was his main residence.”[9]A claim notice is not invalidated “by any inaccuracy in the particulars required by this paragraph”: paragraph 6(3). It has been recognised that there may be difficulties in drawing the line between what is and what is not an “inaccuracy” within paragraph 6(3) in cases where there has been no fraud, bad faith or things of that kind. It is clear, however, that, if there has been concealment or misrepresentation of material facts, that could not properly be described as a case of “inaccuracy in the particulars required”: see Dymond v. Arundel-Timms [1991] 1 EGLR 109 at 113D-F; and Cresswell v. Duke of Westminster [1985] 2 EGLR 151 at 152C-D.[10]An admission by a landlord in his notice in reply of the tenant’s right to have the freehold is binding on the landlord so far as it relates to the matters relevant to the right, “unless the landlord shows that he was induced to make the admission by misrepresentation or the concealment of material facts..”: paragraph 7(4) of Part II. The County Court has jurisdiction to set the notice aside.[11]In a case where the notice was not given in good faith or the person giving the notice attempted in any material respect to support it by misrepresentation or the concealment of material facts, the court may order that further notices given by that person shall be void if give within five years from the date of the order Section 20(6) of the 1967 Act. Such an order is called “a prohibition order.”[12]In this case the evidence in the legal proceedings established that Mr Jassi owned a number of residential properties in which he lived at various times. Until February 1988 he lived at 93 South Park Road, Wimbledon. He then lived in the house as his main residence from February 1988 until mid June 1990, but the County Court judge (HHJ Wakefield) held in the landlords’ proceedings that he had been unable to prove that the house was his main residence between June 1990 and February 1994. During that period he had resided at 47 Coldharbour in the Isle of Dogs (for part of 1991) and at 62 Calvert Road, relevant particulars not disclosed by him in the 1994 notice.[13]It was also found as a fact that between December 1990 and February 1994 the top two floors of the house were in the sole occupation of Mr Mitchell, a friend of Mr Jassi, another relevant particular not disclosed by Mr Jassi in the 1994 notice.[14]In paragraph 6 of the schedule to the 1994 notice Mr Jassi gave particulars to the following effect: that there were no periods for which in the last 10 years and since acquiring the tenancy he had not occupied the house; that he had occupied the house as his residence for the whole time; that there were no parts of the house that had not been in his own occupation; and that he had no other residence. Mr Jassi had made a statutory declaration on 10 February 1994 stating that at the date of the 1994 notice he had occupied the house as his residence for the last 5 years.[15]In consequence of the facts found by HHJ Wakefield Mr Jassi lost the case. HHJ Wakefield disbelieved Mr Jassi’s evidence and granted a declaration that the 1994 notice was invalid. He declared that the admission by the landlords of the right to enfranchise had been obtained by misrepresentation and could be withdrawn. The judge also made a 5 year prohibition order against Mr Jassi.[16]In summary, Mr Jassi had deliberately omitted two matters from the 1994 notice which rendered it invalid: first, for part of the material period no part of the house was occupied by him as his sole or main residence: and, secondly, Mr Jassi stated that he had no other residences during that period when in fact he had 2 other residences, one of them being 62 Calvert Road.[17]HHJ Wakefield set aside the 1994 notice both on the ground that it did not, on a fair view, relate to the actual facts and on the ground that there had been conscious or reckless misrepresentation or concealment of a material fact.

Defendant’s involvement

[18]Mr Jassi’s case against the defendant was that he had negligently failed to advise him in or before December 1998 to serve on the landlords a second protective notice under the 1967 Act.[19]The defendant is a junior member of the Bar called in 1994 and specialising in landlord and tenant law. He was first instructed to advise Mr Jassi about the lease of the house in late 1996. The advice sought and given on that occasion is not relevant to the present dispute, though it is worth noting that in 1997 Mr Jassi turned down a compromise offer by the landlords for the sale of the freehold for £400,000. He was unwilling to pay more than £385,000[20]The defendant was instructed again in August 1997 to settle an Answer to the landlords’ Originating Application in the County Court challenging the validity of the notice and their previous admission of the notice. The defendant was also instructed to advise generally. He advised Mr Jassi that he had “a very strong case.” The advice was given and the Answer was settled on the basis of Mr Jassi’s instructions. The contents of the Answer were approved by Mr Jassi. It was pleaded that 62 Calvert Road was used as a base for a business run by Mr Jassi, not as a residence by him; that in about February 1988 he took up residence in the house as his sole residence; and that it had been his only residence since then.[21]Although the defendant knew from the landlords’ proceedings that the validity of the claim notice was challenged on the basis of Mr Jassi’s non-residence in the house and the non-compliance of the notice with the statutory requirements relating to prescribed information, he did not advise Mr Jassi to serve a second protective claim notice. Mr Jassi claimed that he had been residing in the house for 3 years since the 1994 notice was served. Mr Jassi‘s case is that the service of a second claim notice was crying out to be done in August 1997, but it was not mentioned by the defendant in his advice.[22]On 2 December 1998 the defendant advised in conference on the merits and generally. Again, Mr Jassi complained, the defendant failed to advise Mr Jassi to serve a second protective notice or as to the possibility of serving one. By that time the defendant should have been alerted to the desirability of such a course, as he now had a statement from Mr Jassi referring to the occupation by Mr Mitchell of part of the house in the relevant period prior to the service of the 1994 notice. This was a matter which jeopardised the validity of the 1994 notice, even though it did not jeopardise the claim by Mr Jassi to satisfy the residence requirement. Mr Jassi claims that it was negligent of the defendant not to advise him at that time of the possibility of serving a second notice.[23]The financial consequences for Mr Jassi are significant. They vary according to the date on which a valid notice could have been given under the 1967 Act. If the 1994 notice was valid, Mr Jassi could acquire the freehold for £560,000. A valid notice given in 1997 would entitle him to acquire the freehold for £1.125m, which would increase to £1.2m in the case of a notice served in 1998. As we shall see Mr Jassi ultimately acquired the freehold in 2001 for £1.8m on a compromise of his dispute with the landlords.[24]The difference in the price for the freehold obviously made it important for Mr Jassi to succeed in establishing the validity of the 1994 notice if possible. That was the line taken in the Answer and in his evidence.[25]On 1 March 1999 Mr Jassi signed a witness statement in the landlords’ proceedings. He stated that in February 1988 he took up residence in the house as his sole home. He explained the circumstances in which Mr Mitchell occupied part of the house until 1994. As to the other properties he stated that he had never lived at his other properties Aldebert Terrace or at 47 Coldharbour and that 62 Calvert Road was his office and where his estranged wife and children lived, that the house was where he lived from 1988, although he accepted that the 1994 notice was inaccurate in stating that he had lived in the house for the whole period since he had purchased it. He had lived in 93 South Park Road until February 1988, while the house was being refurbished.[26]The trial of the landlords’ proceedings took place before HHJ Wakefield in the middle of December 1999. Judgment was given on 18 February 2000. As explained earlier the judge did not accept Mr Jassi’s evidence, holding that he had not satisfied the residence requirement for having the freehold of the house and that the 1994 notice did not contain the prescribed particulars.[27]After the county court decision Mr Jassi sought the advice of Mr Derek Wood QC about an appeal against the prohibition order. Permission to appeal on that point was granted by me. Mr Wood advised the service of a second protective notice, which was settled by the defendant and served, but the matter was not taken any further as negotiations between the parties resulted in an agreement on 19 January 2001 for the sale of the house to Mr Jassi for £1.8m .[28]Hart J found that, had such a protective claim notice been validly served in 1997 or 1998, Mr Jassi would have satisfied the residency requirement by virtue of his residence in the house after the service of the 1994 notice.[29]It was common ground that, as appears from the figures stated above, had Mr Jassi been able to purchase the freehold under the 1967 Act in reliance on a protective claim notice served shortly after the defendant’s, advice in 1997 or after the conference in 1998, Mr Jassi would have been able to purchase the freehold for an enfranchisement price of £600,000 to £675,000 less than the negotiated market price which he agreed to pay in 2001.

Negligence: competing contentions

[30]The case against the defendant was that, despite the risk that the 1994 notice might be held invalid, he negligently failed in August 1997 and again in December 1998 to advise Mr Jassi to serve a valid second protective notice. It was, the argument ran, obvious and sensible advice to give him. It was advice which was “almost invariably given” in such circumstances. No oral evidence was given to that effect, but reference was made to Hague on Leasehold Enfranchisement and to a judgment of Neuberger J as to the common practice of protective notices in landlord and tenant law.[31]According to Mr Jassi the facts spoke for themselves. There was a risk that he might fail at trial on the issue of the validity of the 1994 notice. There was a risk that the judge might prefer the evidence of the other side. The advice that was given by Mr Wood QC should have been given earlier by the defendant.[32]All the other points made on behalf of Mr Jassi flow from the central proposition that it was negligent not to advise on the possible service of a second claim notice as a precaution against the 1994 notice being held to be invalid: the defendant had not considered advising Mr Jassi to serve a protective notice; the defendant’s thought processes on the topic of the possibility of formulating such a notice, so as not to falsify the claim notice or render the notice vulnerable to attack, were flawed; the law did not require a perfectly worded notice, as it recognised a distinction between an inaccurate notice, which was not invalidated, and a deliberately misleading notice; and a second notice could have been drafted on the information supplied to protect the right to enfranchise and served expressly “without prejudice” to the contention that the 1994 notice was valid.[33]The defendant’s case was quite simply that he was not negligent in advising Mr Jassi on the basis of his instructions as to the facts relevant to residence in the house and the particulars supplied by him in the 1994 notice. He was not instructed to advise on the basis that the facts were otherwise than he had been told by Mr Jassi and as pleaded by him in the Answer. He was not to be in breach of his duty of care for failing to advise Mr Jassi on the basis of facts which were contrary to what he said in the 1994 notice, his statutory declaration, his witness statements and in his evidence to the court. The fact that his evidence was not accepted and the 1994 notice was held to be invalid was not the result of any negligence on the part of the defendant in his advice.[34]Further, a second notice would have been difficult to draft on the basis of facts inconsistent with the 1994 notice and the evidence he would give to the court. It would involve risks to the chances of establishing the validity of the 1994 notice and to the credibility of Mr Jassi’s evidence.[35]It was also contended that the cause of Mr Jassi’s loss was the invalidity of the 1994 notice which he had filled in falsely. As he had misled the defendant about the facts on which he was instructed to advise, it was not open to Mr Jassi to allege that the defendant was negligent in his advice or that the defendant’s allegedly negligent advice on the basis of what he was told was the cause of his loss. It was not negligent of him to believe that Mr Jassi was telling him the truth about matters relevant to the validity of the notice.

Judgment of Hart J

[36]I agree with Hart J’s statement of the issue when he said- “ 14. The central issue in the case is whether the defendant was negligently remiss in not exploring with Mr Jassi the possibility of serving a protective notice either in 1997 or 1998. In my judgment the whole case turns on that.”[37]Hart J concluded “63. Accordingly the defendant was not in my judgment negligent in failing to advise Mr Jassi in 1997 or 1998 as to the desirability of serving a protective notice.”[38]The judge reached that conclusion by the following route. It was true that apart from a notice to deal with Mr Mitchell the question of a second notice was not discussed by the defendant with Mr Jassi prior to the events leading up to the giving of the notice in 2000 after the 1994 notice had been set aside by the court and advice was obtained from Mr Derek Wood QC. The defendant’s evidence was that he had thought of the possibility, but had dismissed it from his mind as a practical course to advise. He believed that “ 53. ….it would not have been possible to formulate the terms of such a notice in such a way that it did not either falsify the 1994 notice or render the new notice as vulnerable to attack as the 1994 notice. ”[39]Hart J considered and rejected the criticisms of the defendant’s approach as flawed. He concluded “57. In my judgment the defendant’s thought process, if wrong, was not so wrong as to demonstrate negligence. It is difficult to see how any new protective notice, if conventionally framed, would have significantly improved Mr Jassi’s position, but relatively easy to see how it might have worked to his disadvantage in relation to establishing the validity of the 1994 notice. The difficulty is well illustrated by the difficulties which Mr Jassi’s advisers in this action have experienced in formulating his case.” Hart J then considered in detail the attempts of two different experienced leading counsel to draft a protective notice. His conclusion was that “the answer to the question what form the new notice should have taken was by no means an obvious one” (paragraph 59). He was satisfied that, in such circumstances, the defendant had not failed “to exhibit the standard of skill and to be expected of a barrister in the position of the defendant” (paragraph 61).[40]As Hart J pointed out, there were in any event practical problems of a different kind in requiring of the defendant that he should at any particular time have devised a protective notice. As at August 1997 he had not been told anything about the presence of Mr Mitchell in the house or about Mr Jassi’s properties 2 Aldebert Terrace or 47 Coldharbour. As at December 1998 he had been alerted to Mr Mtchell’s presence in the house, but not to the possibility that his evidence in support of Mr Jassi would, as in fact happened at trial when he said that he was in exclusive occupation of the two upper floors of the house, turn against Mr Jassi.

Discussion and conclusions

[41]I will confine the discussion to what I consider to be the essential points.[42]First, as to the relevant legal principles, there was no dispute. The question is not whether the defendant made a mistake in failing to consider the possibility of serving a second claim notice, or in not advising the service of a second notice or in the reasons he gave in his evidence for not advising Mr Jassi on this point. As Hart J pointed out, the question is whether advice to serve a second notice “fell within the range of that to be expected of reasonably competent counsel of [the defendant’s] seniority and purported experience”: Moy v. Pettman Smith [2005] 1 WLR 581 at paragraph 62. No expert evidence had been adduced by Mr Jassi to enable the court to assess whether the relevant standard of care had been departed from. Reliance was placed on what was said by a judge (Neuberger J in Malekshad v. Howard de Walden Estates (No 2) [2004] 1 WLR 862 at 884, paragraph 100) and in a text book (Hague on Leasehold Enfranchisement 2nd Edition 1987 at p 88 para 5-04) about a tenant usually being in a position to serve a second notice without prejudice to the validity of the first notice and being able to rely upon both of them in the alternative. In such circumstances I agree with Lord Hope when he said that this is the kind of case in which “considerable weight should …be given to the decision of the judge at first instance who heard all the evidence.” See Moy at paragraph 19. Hart J heard all the evidence and concluded that the defendant was not negligent in his advice to Mr Jassi.[43]Secondly, it is not suggested that the defendant was negligent in his conduct of the defence to the proceedings by the landlords on the basis of his instructions. It was Mr Jassi’s case that the 1994 notice was valid on the basis that at least in relation to the period after February 1988, the notice correctly stated the facts about his residence in the house. The defendant settled the Answer on the basis of those instructions. The draft Answer was approved. The facts were stated in Mr Jassi’s evidence in his witness statement for the county court hearing. It was clearly in his financial interest to establish the validity of the 1994 notice, if he possibly could. The service of a protective notice in 1997 or 1998, assuming that it was valid, would have meant paying substantially more for the freehold than would be payable under the 1994 notice. It is not suggested that if, in those circumstances, Mr Jassi was given the advice about serving the second notice that he says he should have been given, he would have conceded that the 1994 notice was invalid. On the contrary, it is suggested by Mr de Lacy for Mr Jassi that it would have been possible to serve a second notice without prejudice to the 1994 notice, so that the second notice would provide a “safety net” for Mr Jassi should he fall from the “high wire” of the 1994 notice.[44]This brings me to the third point: the dangers in serving a second notice relying on particulars of facts, which were inconsistent with the particulars in the 1994 notice, as to which Mr Jassi would be giving evidence at the trial in the County Court. I accept that in many landlord and tenant situations there would be no downside in serving a second notice without prejudice to the first notice: for example, when there are doubts as to the fact or validity of service of a notice to quit or as to whether a notice to quit was served in time. A potentially defective claim notice under the 1967 Act is not always of the same character. It has to state facts relating to residence by the tenant and others in the tenanted property and by the tenant in other property. There is an obvious downside in serving a second notice, even one stated to be “without prejudice.” That formula would not prevent the second notice from providing the landlords with some very useful material for cross examining Mr Jassi on matters relevant to the validity of the 1994 notice.[45]The fourth point follows close on the third. It would have been difficult to draft a notice which complied with the requirements of the 1967 Act. Leading counsel who appeared for Mr Jassi before Hart J, but who did not appear at the hearing of the appeal, drafted a notice set out in paragraph 59 of Hart J’s judgment, and the case at trial was that such was the notice in relation to which the defendant should have advised. As Wilson LJ pointed out during the hearing even this notice, drafted by leading counsel years after the alleged negligence and with the benefit of hindsight, does not obviously comply with the requirements of the 1967 Act. It does not answer the questions in the prescribed form of notice. If it was invalid for non-compliance with paragraph 6, it would not protect the position of Mr Jassi. On the contrary, its service could have worked to his disadvantage by damaging his credibility as a witness to the facts relevant to the validity of the 1994 notice and thereby reduce his chances of winning on the more advantageous basis of a valid 1994 notice[46]Fifthly, the fact that in 2000 another leading counsel advised the service of a second notice, which was drafted by the defendant, is no evidence that the defendant was negligent in not giving such advice 1997 or 1998. When Mr Derek Wood QC gave his advice the facts about the 1994 notice had been decided by HHJ Wakefield. The position was very different at the time when Mr Jassi and those advising him were fighting the case brought by the landlords and were aiming to establish facts to support the validity of the 1994 notice.

Result

[47]In brief I agree with Hart J that the defendant was not negligent. It has not been shown that he was in breach of his professional duty of care. He gave advice and conducted the defence of the County Court proceedings on the basis of Mr Jassi’s instructions as to the facts relevant to the notice which he had served and the evidence which he would give and did give in court. Mr Jassi’s problem is not that his barrister was negligent, but that his case on the 1994 notice failed because his evidence was not accepted by the judge. When giving his advice the defendant had no reason to doubt his client. His instructions were to defend the validity of the 1994 notice and for good reason. The service of a second notice posed problems of presentation both as to the contents of the second notice and in Mr Jassi giving credible evidence about the 1994 notice in the county court case.[48]I agree with Mr de Lacy that the service of a second notice was a possibility on which Mr Jassi was not advised. I also agree that the second notice did not have to be perfect to be a valid notice under the 1967 Act. Inaccuracies would not make it an invalid notice. It was not even certain to fail.[49]The crucial point is that it has not been established that, judged by the objective standard of care of the reasonably competent practitioner, it was negligent of the defendant to fail to advise on the possibility of a second notice. It has not been shown that it was a reasonably practical possibility, which would have protected Mr Jassi’s overall position.[50]I do not agree with Mr de Lacy’s contentions that the judge reached the wrong conclusion on the disadvantages of serving a second notice and that, without the service of such a notice to cover the possibility that his evidence on the 1994 notice would not be accepted, Mr Jassi was left with nothing. Nor do I share Mr de Lacy’s optimism that the second notice would not undermine Mr Jassi’s evidence in support of the validity of the 1994 notice. His submission that there was no disadvantage in serving a second notice and that Mr Jassi could not be prejudiced in his reliance on his 3 years residence of the house after the service of the 1994 notice, does not meet the point that other particulars are required in the claim notice, which would not be answered consistently with the particulars given in the 1994 notice. By going back on the previous particulars Mr Jassi would be exposed to potentially damaging cross examination relating to his credibility. This would risk diminishing his prospects of upholding the validity of the 1994 notice. It would not be the “safety net” that Mr de Lacy said should have been provided by defendant. The use of the “without prejudice” formula is not an effective precaution against the dilemma of giving two different versions of the facts relevant to the particulars required by the claim notice and it being put to Mr Jassi in cross examination that they could not both be true and why should his evidence about residence in the house be believed at all.[51]In those circumstances it is unnecessary to express a view on Mr Halpern’s submission that, as a matter of law, Mr Jassi was not entitled to complain that he had suffered loss as a result of the defendant’s negligence, as he had deliberately misled him as to the facts on which he was instructed to advise him and represent him in the County Court proceedings and induced him not to advise on the service of a second notice. Nor is it necessary to pronounce on the submission that, even if the defendant had given advice to Mr Jassi about the possibility of serving a second notice, he would probably not have taken that course once the risks involved in the service of a second notice had been explained to him.[52]For all the above reasons, I would dismiss this appeal.

Lord Justice Buxton:

[53]I entirely agree.[54]This claim, always very difficult, became impossible as soon as Mr Michael Driscoll QC (who conducted the case before Hart J and who settled the grounds of appeal to this court) saw himself as obliged to contend that the protective notice that was said by the specialist leading counsel who had preceded him in advancing the claim to be what non-negligent junior counsel would have advised had itself been negligently drawn. That episode, and the difficulties about the alternative notice proposed by Mr Driscoll that my Lord has set out, all go to demonstrate that against the background of Mr Jassi’s evidence and instructions there was no obvious answer, and probably no answer at all, to the problems facing his advisers. Such plausibility as the various attempts at a protective notice might appear to have was only achieved by ignoring the need to give specific, factual, answers to all of the questions asked in paragraph 6(1)(d) of the Schedule without at the same time seriously damaging Mr Jassi’s credibility, or attributing to him claims that were inconsistent with his evidence.[55]Mr Richard de Lacy, who argued the appeal having been briefed at less than 24 hours notice, did not abandon this part of the argument, but he concentrated much more fully on criticism of Mr Gallagher’s failure to deal effectively with the difficulty about Mr Mitchell. That criticism had two limbs. First, Mr Jassi’s statement that Mr Mitchell had lived at Camden Hill Road as a “lodger” in itself meant that Mr Jassi had not occupied at least some part of the house during that period, and that should have been dealt with, by confession and avoidance, in a protective notice. Second, that statement should have alerted Mr Gallagher to the possibility (which in the event occurred, with disastrous results for Mr Jassi’s case) that Mr Mitchell would be found to be much more than just a lodger, and to have been in separate occupation of a discrete part of the property.[56]The first of these criticisms is not correct in law. An occupier can take a lodger without himself giving up occupation of any part of the premises: indeed, it is the essence of lodging, as opposed to sub-renting, that one cannot exclude the householder. The second criticism places not only a wholly unreasonable but also a wholly unreal burden on counsel. A statement was obtained from Mr Mitchell that corroborated Mr Jassi’s case. It is impossible to contend that Mr Gallagher should nonetheless have advised that a notice should have been served that doubted both men’s evidence, against the doubly unlikely possibility that Mr Mitchell not only would depart from his statement at trial but also would be believed in that departure by the Judge.[57]It is also necessary to observe that these alleged failings in respect of Mr Mitchell were not identified by any of the three specialist silks who previously advised Mr Jassi, and that no ingenuity could extract them from Mr Jassi’s pleadings. That is not just a pleading point. In a field where an adviser is only negligent if his advice falls outside the range of reasonable competence, negligent conduct may be expected to be easily and readily identifiable by fellow professionals. A claim is bound to lack conviction if the conduct complained of has escaped the criticism of a range of such professionals.[58]That last circumstance drives me to a more general reflection on claims based on lawyers’ negligence. No expert evidence was called in the present case, as has been so in other similar cases (see for instance Moy v Pettman Smith [2005] 1 WLR 581), no doubt in deference to the much-respected observation of Oliver J (as he then was) in Midland Bank v Hett Stubbs & Kemp [1979] 1 Ch 384 at p 402B-D that the extent of the legal duty in any given situation must be a question of law for the court. Lord Hope of Craighead in §19 of his speech in Moy v Pettman Smith warns that judges in discharging that task may set too demanding a standard, in that they assess the lawyers’ conduct according to what they would have done themselves, rather than by what the reasonable lawyer should have done. That danger is, however, avoided if judges correctly appreciate, as Hart J and indeed the parties appreciated, the proper standard by which allegedly negligent conduct has to be assessed. When a judge has properly recognised that standard, the question of whether that standard has been met becomes one for the judgment of an informed lawyer. There is no obvious reason why the judgment an informed lawyer sitting in this court should be any better than that an informed lawyer sitting at first instance. It should only be in very rare cases that this court should contemplate interfering; and I am bound to say that this was not such a case.[59]If the judge can be shown to have erred in law, for instance by making the error identified by Lord Hope, and more generally by applying the wrong standard, then this court must correct that error of law; but that is a very different matter from substituting this court’s judgement for that of the judge, as we were invited to do in this appeal.[60]I would therefore dismiss this appeal, which comes nowhere near to demonstrating the type of error on the part of Hart J that would permit this court to intervene.

Lord Justice Wilson :

[61]I agree with both judgments.[62]Five days before trial the case against the defendant was re-cast so as to assert that he should have commended to Mr Jassi, either as something which he should serve or at least as something which he should consider whether to serve, a notice in the following form:
“This notice of claim is given without prejudice to the tenant’s contention this his notice of claim dated 12.1.94 is valid. For the purpose of this notice of claim the tenant relies solely upon his period of 3 years residence in the house prior to the date of this notice of claim. The tenant has occupied the house as his residence since February 1988 but not before then and the particulars in respect of (a) and (b) are as follows: (a) the top two floors of the house were not in the claimant’s occupation between December 1990 and March 1994 (when they were occupied by the claimant’s lodger) (b) the claimant resided at 93 South Park Road, Wimbledon until February 1988. The claimant has owned other residential properties since February 1988 and in particular 62 Calvert Road SE10 (in the claimant’s ownership from 1981 until the present time), 2 Aldebert Terrace SW8 (in the claimant’s ownership from 1986 to 1990), and 47 Coldharbour Isle of Dogs (in the claimant’s son’s ownership from 1988 to 1991), but his contention is that he occupied none of those other residential properties as his residence or as his only or main residence at any time after February 1988 but the landlords contend otherwise. For the purpose of this notice of claim the claimant accepts that the landlord’s contention is correct. However, for the last 3 years the house has been the tenant’s only or main residence.”
[63]But what did the final paragraph of the new suggested notice mean? It clearly reiterated the contention that none of the other three specified properties had been a residence of Mr Jassi at all. It contended, however, that, alternatively, they had been residences of his. But was the alternative contention that each had been just one of a number of his residences? Or that for a period each had been his only residence? Or that for a period each had been his main residence? To these three questions the answers given by the notice were entirely and no doubt deliberately opaque. Furthermore, to phrase a fourth question in the words of the former para. 6(1)(d) of Schedule 3, “for what periods” was each a residence? Mr de Lacy, whose grasp of his brief at such short notice has filled me with admiration, was driven to concede that the revised case against the defendant at trial was that he had failed to commend to Mr Jassi the service of a notice in a form which was not in compliance with para. 6(1)(d); but, so Mr de Lacy added, its irregularities might well not have been such as to invalidate it. It is – to put it mildly – an unpromising basis for a negligence action.[64]I readily accept that there were – and probably still are – situations in which it was – and is – open to a tenant to serve an alternative, protective notice under the 1967 Act and indeed perhaps wise for him to do so. Prior, for example, to the repeal by the Commonhold and Leasehold Reform Act 2002 of the residential requirement set by s.1(1)(b) of the 1967 Act, a tenant might have served particulars which precipitated a dispute as to whether, for example, it should be inferred that the house has been his only or main residence during the first of the years upon which he relied. After the passage of another year in which it had indubitably been his only or main residence, he could and probably should have issued an alternative, protective notice, the content of which would in no way have been inconsistent with the first. I have grave doubt, however, whether a tenant who is required to give particulars of facts can properly give them on an alternative basis, entirely inconsistently with other particulars which he has given previously and which he continues to maintain to be true. In my view therefore the vice of the suggested form of notice probably transcended breach of the former para. 6(1)(d) and reached the realms of misconception in principle. On any view however the defendant should not have been accused of having been negligent in failing to commend it.