Webb v MacDonald & Anor [2010] EWHC 93 (Ch)

[2010] EWHC 93 (Ch)Case No HC09C01035
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/01/2010
Before
Mr Justice Vos
Between
Alfred John WebbClaimant(1) John Macdonald QCDefendants(2) Dakers Green BrettDefendant
Mr Joshua Munro (instructed by Cripps Harries Hall LLP) for Claimant.Mr Graeme McPherson QC (instructed by Bond Pearce LLP) for first Defendant.Mr George Spalton (instructed by Kennedys) for second Defendant.Hearing Hearing dates: 21 st and 22 nd January 2010
Judgment

Introduction

[1]There are two applications before me:- i) The first Defendant, Mr John Macdonald Q.C. (“Mr Macdonald”), a Chancery barrister, applied on 31st March 2009 under CPR Part 24 for summary judgement against the Claimant, Mr Alfred John Webb (“Mr Webb”), on the grounds that the claim has no real prospect of success. ii) The second Defendants, Dakers Green Brett, a firm of solicitors practising in Kent (the “Solicitors”) applied on 5th May 2009 under CPR Parts 3.4(2)(a) and 24 for orders that Mr Webb’s claim against them be struck out as disclosing no reasonable cause of action, alternatively for summary judgment on the ground that the claim has no real prospect of success.[2]Mr Webb claims in this action damages for negligence against Mr Macdonald and damages for breach of contract and negligence against the Solicitors.[3]In the broadest outline, Mr Webb alleges that he instructed Mr Macdonald and the Solicitors to defend him in an action brought against him by Lloyd’s Bank Limited (now Lloyd’s TSB Bank plc and which I will refer to as the “Bank”), in which the Bank claimed possession of his home at the Folly, Dartford Road, Farningham, Kent DA4 0EB (the “Property”), and the sums due under a guarantee to which I shall refer in more detail later.[4]Mr Webb’s primary claims are as follows. First, he says that, when the Defendants came finally to advise on settling the proceedings on 11th and 12th March 2002, they negligently advised him to settle at too high a level, inappropriately discounting both the various arguments available on the sums actually due to the Bank, and a legal argument that would probably have obliterated the Bank’s claim, which Mr Macdonald had previously advised should be run, and to which I shall refer as the “IVA argument”. Secondly, Mr Webb contends that Mr Macdonald negligently told Mr Webb that he would withdraw from the case if he did not accept the settlement offered by the Bank.[5]I am conscious of the need to avoid a summary or mini trial in this kind of case. Nonetheless, the evidence and the submissions have been gone into in some detail in the course of argument, and I do not feel that I can fairly avoid summarising in this judgment the matters on which I have relied in reaching my decision, as briefly as clarity allows. I cannot, of course, decide any disputed issues of fact, which can only properly be resolved at trial. There is, however, really only one major area of disputed fact, which seems directly to relate to the issues, and that is as to precisely what Mr Macdonald said when discussing the proposed settlement with Mr Webb. I shall return to this point in some detail. Otherwise, the disputes of fact are relatively modest, because the Solicitors prepared detailed attendance notes of all the meetings, telephone discussions, conferences and consultations. It has not been suggested to me that the contents of these attendance notes are inaccurate in any essential respects.[6]I am also conscious of the strength of feeling with which Mr Webb views this case. He feels that he has been badly served by the legal profession, and that a better result could and should have been achieved. I have, however, to be careful to distinguish between allegations of negligence that have a real prospect of success on the one hand, and legitimate concerns that Mr Webb may express, on the other hand, about the way the Bank pursued the claim against him over many years, which are not alleged to constitute negligence by the lawyer Defendants before me.[7]Finally by way of introduction, I should note that the Claim Form in this case was only issued on 11th March 2008, so that the 6 year limitation period will have expired in relation to any claims that might be alleged against the Defendants that arose prior to 11th March 2002. Mr Webb’s main complaints in this case concern, as I have said, the advice that he was given on 11th and 12th March 2002, and it is common ground that these claims are not statute barred. Nonetheless, the timing issue has given the arguments before me some focus, because it has not been open to Mr Webb to rely on acts of negligence that may be alleged prior to 11th March 2002, unless they were in some way reflected in advice given or losses sustained within the limitation period.

Factual background

[8]Mr Macdonald was called to the Bar in 1955, and took silk in 1976. He has practised continually at the Chancery Bar since 1957.[9]Mr Christopher Simpson (“Mr Simpson”) was a partner in the Solicitors from about September 1987 until 31st March 2009, becoming variously Managing Partner and Head of Litigation.[10]I.E.S.B. (UK) Limited (“IESB”) began banking with the Bank in about 1977. Mr Webb was the managing director and a shareholder of IESB.[11]On 14th July 1980, Mr Webb granted a third legal charge (the “Mortgage”) over his interest in the Property, which was then his jointly owned matrimonial home, to secure his liabilities to the Bank.[12]On 8th December 1981, Mr Webb and his wife Lisbeth Webb guaranteed the liabilities of IESB to the Bank (the “Guarantee”). The Guarantee was unlimited and provided for the payment of interest on monies demanded at “the rate of two percent above the Bank’s Base rate for the time being in force, compounded with rests on such days in each year as the Bank shall from time to time fix”.[13]On 20th July 1990, the Bank demanded that IESB pay it £303,574.71.[14]On 26th July 1990, the Bank demanded that Mr Webb pay it £305,646.48 under the Guarantee.[15]IESB went into compulsory liquidation on 27th March 1991. The Bank claimed that IESB owed it the sum of £364,637 at the date of winding up.[16]On 13th May 1992, Mr Webb entered into a 3 year Individual Voluntary Arrangement (later extended to 5 years) with his creditors under Part VIII of the Insolvency Act 1986, with Mr Roger Gillett as the appointed supervisor (“Mr Gillett” or the “Supervisor”). Mr Webb’s proposal for the IVA, which was approved at the creditor’s meeting, provided that the Property was not to form part of the arrangement and that “Secured creditors will continue to rely on their security”.[17]On 27th August 1993, Mr Gillett wrote to the Bank saying that its debt was shown as £364,637 on the Statement of Affairs, asking whether the full amount would be covered by the Property, and requesting the Bank to quantify any unsecured claim it would be making.[18]On 24th September 1993, the Bank responded to Mr Gillett saying that it was impossible to quantify its (unsecured) claim until the Property was sold, but that it was anticipated to be in excess of £100,000.[19]On 9th September 1994, the Bank issued a claim against Mr Webb in the Dartford County Court, seeking possession of the Property, and claiming that £595,166.44 was required to pay the Mortgage in full as at 14th September 1994.[20]Shortly thereafter, Mr Dorian Day of counsel (“Mr Day”) was asked by other solicitors to advise Mr Webb on the Bank’s claim. On 15th November 1995, Mr Day advised in writing for the purposes of the Legal Aid Board, saying that if Mr Webb’s various assertions were correct, he would be in a position to challenge the amounts outstanding to the Bank, and suggesting that an independent forensic accountant be instructed to “view the papers critically and analyse Mr Webb’s version”.[21]On 23rd April 1997, Mr Gillett wrote to the Bank as follows:- “You will recall that the quantification of your claim has been disputed by [Mr Webb], but an agreement was reached with you, for dividend purposes, that the maximum amount of your claim in this [IVA] was £364,637. Agreement of your maximum claim enabled the first dividend to be paid to the unsecured creditors on 12 May 1996 and a sum representing the dividend that would have been paid to you is being held by this firm subsequent to formal agreement of your claim. You will be aware that this [IVA] is due to be finalised on 12 May 1997 … I have, therefore, proposed to Mr Webb that an agreement should be reached between the Bank and myself, as Supervisor of the [IVA], whereby your maximum claim of £364,637 be formally admitted in the [IVA]. It should, however, be acknowledged by all parties that this claim is admitted merely for dividend purposes… This can, however, only be done if the [Bank] agree to accept the admittance of their claim under the terms proposed and that admittance of their claim in the [IVA] should not, either now or at any time in the future, be treated as formal admittance of the liability by Mr Webb and will not be used by the [Bank] as a defence in relation to any further action that Mr Webb may take as to the [Bank’s] claim over the [Property]”.[22]On 15th August 1997, the Bank submitted a claim in the IVA in the sum of £364,637, under a covering letter that said that it was being submitted “purely on the basis that whilst we are completing this in respect of a large proportion of the debt we are continuing to rely on our security over” the Property. The Claim was signed by each of the Bank, the Supervisor and Mr Webb and provided as follows:- “The claim of [the Bank] in the [IVA] … is £364,637. It is acknowledged by the [Bank], [Mr Gillett] and [Mr Webb] that this claim is admitted in the [IVA] merely for the purposes of finalising the IVA and to enable [Mr Gillett] to pay to the creditor the dividends due. [Mr Webb] consents to the admittance of the debt under these terms, but only upon the basis that it is acknowledged by all parties that he will continue to dispute the quantification of the debt as far as the [Bank’s] secured charge over [the Property]. It is acknowledged by all parties that agreement of the [Bank’s] claim in the [IVA] is without prejudice to any legal action being undertaken by [Mr Webb] against the [Bank] and that admittance of the [Bank’s] claim under these terms will not, as far as any future action is concerned, be considered as formal admittance to the [Bank’s] claim. Furthermore, it is acknowledged by all parties that agreement of the [Bank’s] claim in the [IVA] cannot and will not be used by any party, by way of evidence in any further actions that there may be between the [Bank] and [Mr Webb]. It is acknowledged that the claim has been admitted merely for dividend purposes and to enable [Mr Gillett] to finalise the administration of the [IVA] of [Mr Webb]” (emphasis added).[23]In late 1997, a £6,246 dividend was paid to the Bank in Mr Webb’s IVA. The Supervisor’s final report dated 3rd November 1997 recorded that Mr Webb’s unsecured claims were agreed in the sum of £1,710,364.98, of which a dividend of 1.713p in the £ was paid to unsecured creditors in full and final settlement of their debts.

The Defences to the Bank’s claim

[24]At this stage, and before dealing with the events that occurred once the Defendants were instructed to represent Mr Webb, it is useful to summarise the various defences that Mr Webb and his advisors raised in the course of defending the Bank’s claim from 1994 until 2002. They were broadly as follows:- i) The Bank’s proof in the IVA amounted to a release of its security over the Property, alternatively it meant that the Bank could not claim the sum of £364,637 in respect of which it had proved (the “IVA argument”). ii) The effect of Rule 4.93 of the Insolvency Rules 1986 was to prevent the Bank claiming against Mr Webb either any interest after the liquidation of IESB for which it could not prove in IESB’s winding up, or any interest except that claimable under the Guarantee (the “Rule 4.93 argument”). iii) The Bank had not been entitled to charge IESB between 1977 and its winding up in March 1991 interest at more than 2% above base rate (the “Interest argument”). iv) The charges imposed by the Bank on IESB were unjustified and/or invalid and/or irrecoverable (the “Charges argument”). v) The Bank had delayed in crediting to IESB monies received via Swift transfer from countries including Norway, causing it to incur unjustified additional charges and interest (the “Swift argument”). vi) The Bank had wrongly transferred funds between the Company’s account and various ‘feeder’ accounts of associated companies, causing losses, and the Bank had wrongly charged IESB for charges accruing to those companies (the “Feeder Companies argument”).

The events after the Defendants were instructed

[25]In October 1997, Mr Webb instructed Mr Simpson and the Solicitors, to act for him in defending the Bank’s claim.[26]On several occasions in 1998 and 1999, Mr Simpson and Mr Day advised orally and in writing that a forensic accountant should be instructed to consider Mr Webb’s allegations that the Bank had been overcharging. Instructions were eventually sent to Mr David G Sinclair FCA (“Mr Sinclair”) on 2nd March 1999.[27]On 11th October 1999, the Solicitors advised that there was no real evidence supporting the Swift argument, on the basis that Mr Webb had himself said that he had only found one example of delay in crediting a foreign transfer. The attendance note of this advice also records that there was very little evidence to support the Feeder Companies argument at that stage.[28]On 18th November 1999, Mr Sinclair produced a final draft experts’ report. He relied entirely on Mr Webb’s 166 page spread sheet “containing daily cash movements and interest calculations” over the period of operation of IESB’s accounts with the Bank. He recorded that, had the Bank charged interest at 2% above base rate throughout the “result is a balance due to the Bank by [IESB] of £209,769”, and stripping out charges and some other items also, IESB owed £126,407. These figures were calculated to the date of IESB’s winding up in March 1991. Mr Sinclair made estimates of the values of the Feeder Companies argument in the sum of £158,950, and of the Swift argument in the sum of £60,000, though without having seen evidence of them.[29]On 29th March 2000, Mr Day advised Mr Webb in conference that leading counsel should be instructed. He recommended Mr Macdonald.[30]Mr Macdonald advised first in consultation on 13th April 2000, although he had just returned from the USA on that occasion and admitted to suffering jet-lag. He gave his first considered advice in consultation on 20th April 2000. On that occasion, Mr Macdonald advised that the Bank’s claim was a serious piece of litigation that should go to trial. Mr Macdonald also confirmed his view that “we will be doing well in getting Mr Webb off the claim and save his house”.[31]This advice was reduced to writing by Mr Day in a further Advice dated 3rd May 2000.[32]Meanwhile, on the 27th April 2000, Mr Webb had filed his first witness statement exhibiting his lengthy analysis of every transaction on IESB’s account in its 13 year history. Mr Webb argued that this evidence was the only detailed analysis available to the Court when the Bank’s claim came to be heard.[33]On 18th May 2000, the Bank served its first 4 witness statements. Those statements explained in detail how IESB’s accounts had been run over many years. IESB had regularly, after 1985, exceeded its agreed facilities and written cheques which it did not have funds to pay. Mr Bright explained that the directors of IESB failed to appreciate the importance of funds being cleared before they could be drawn against, and said that IESB’s accounts were extremely time-consuming for the Bank. By 1989, Mr Vooght had requested IESB to make alternative banking arrangements. There was no suggestion in this evidence that IESB had queried the interest rates or charges that had been levied for authorised or unauthorised borrowings. Mr Prichard said that a total of £845,969.55 was due from Mr Webb applying interest at 2% above base from the demand at yearly rests. Mr Fleming said that he had seen no evidence to support the Swift argument.[34]On 27th June 2000, Mr Macdonald gave his second significant advice in consultation. In the course of that meeting, Mr Macdonald indicated that “at the end of the day we may well have to do a deal with the Bank”.[35]On 8th August 2000, District Judge Glover made a suspended order for possession of the Property pending the taking of an account in respect of the debt, and transferred the Bank’s claim to the High Court. Again, Mr Macdonald told Mr Webb after the hearing that “realistically if the Bank came to us indicating that they were prepared to settle for a sum which Mr Webb could pay off within a reasonable period of time then we would have to seriously consider it”.[36]On 19th January 2001, Master Price directed the Bank to serve an account for the period from 19th September 1977 in respect of IESB’s accounts. He refused, however, to order disclosure relating to 14 associated (or ‘feeder’) companies, or to require the Bank to provide an account of interest and charges in respect of those associated companies. That refusal made it more difficult for the Feeder Companies argument to be pursued.[37]On 13th February 2001, the Bank offered to compromise the claim on terms whereby the Property would be sold, and Mr Webb would retain £10,000 from the proceeds of sale. Mr Webb rejected that offer.[38]On 26th April 2001, the Solicitors filed a detailed case plan with the Legal Services Commission (“LSC”). It recorded that “the prime objective of Mr Webb must be to retain possession of his home”. They said that the prospects of Mr Webb showing the Bank were owed nothing or something so small that he would be able to repay it within a reasonable time were estimated at a moderate 50-60%. It will be borne in mind that under section 36 of the Administration of Justice Act 1970, an order for possession can only be suspended “if it appears to the court that … the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage”.[39]On 1st May 2001, the Bank served its account in the form of a statement from Mr Franklin. He calculated the sums due on 4 bases. The most favourable to Mr Webb was on the basis of interest being charged to IESB at 2% above base, stripping out unauthorised borrowing fees, but not fees for, for example, the 770 bounced cheques. Even on this favourable basis, the balance due to the Bank as at the date of IESB’s winding up in March 1991 was £297,726.46 (albeit that that was obviously not the relevant date; the correct date being 8 months earlier when the demand was made on 26th July 1990).[40]On 27th July 2001, Mr Macdonald gave his 3rd substantive advice in consultation. He advised that Mr Webb was in great difficulties in relation to the Swift argument and the Feeder Companies argument, and that the only question was how the value of the Property was to be divided between the Bank and Mr Webb. The IVA argument was raised, but Mr Macdonald said he needed time to deal with it.[41]On 31st July 2001, Mr Macdonald, giving his 4th substantive advice, telephoned Mr Simpson and told him that he had looked at the documentation in relation to the IVA, and that he did not consider there was any merit in pursuing the argument. The note of this telephone consultation makes clear that Mr Macdonald was aware that the Bank would need to give credit for sums received from a co-guarantor, Mr Mason, and for the distribution in the IVA.[42]On 22nd August 2001, Mr Macdonald wrote an opinion (his 5th substantive advice) concerning the legal effects of Mr Webb’s IVA. He advised that the Bank had not done anything to suggest it was going to relinquish its security, that it was not possible to argue that the Bank had waived its security, and that any argument that the Bank could only rely on its security for the balance of the debt above £364,637 (on which the dividend had been based) was unlikely to succeed, but that the argument was a proper one to make, would not add greatly to the costs, and that the sensible course was to make the argument and see if it appealed to Master Price.[43]Mrs Lisbeth Webb died on 14th September 2001.[44]On 22nd October 2001, Mr Macdonald again advised in consultation (his 6th substantive advice). Mr Sinclair told Mr Macdonald that applying 2% above base throughout, the figures were that “we would get to a position of owing the bank approximately £200,000”, or £172,000 taking out all charges. Both figures seem to have been calculated up to March 1991.[45]On 23rd November 2001, Mr Sinclair provided his second report. Although no new documents had been provided to Mr Sinclair in relation to the Feeder Companies argument, he estimated the overcharge in that regard at some £148,346. He also estimated the overcharge in relation to the Swift argument as £74,669. His figure for the balance due as at 27th March 1991 (again not the relevant date) was £144,147, having adjusted interest and charges.[46]On 11th January 2002, Mr Franklin served a second witness statement contesting in detail Mr Sinclair’s second report. He contended that Mr Sinclair’s second report had fundamental problems. In particular, he contested Mr Sinclair’s arithmetic and said that he had based his conclusions on speculation, and had included claims that had already been excluded by the Court. He also put in issue Mr Sinclair’s suggestion that there was an agreed rate of 2% above base over the entire banking relationship. He said, not surprisingly, that the Bank had been entitled to charge higher unauthorised overdraft rates, and that the 2% above base rate was only applicable from the date of demand under the Guarantee. In addition, he said that Mr Sinclair wrongly treated monies as cleared when they appeared on the bank statements. Finally, he called Mr Sinclair’s independence into question as a single joint expert, and alleged, in effect, that his comments on the Bank’s conduct were partisan.[47]On 4th February 2002, Mr Macdonald gave further advice in consultation (his 7th substantive advice). The trial before the Master was then only 5 weeks away. Mr Macdonald advised that, if the Master found that Mr Webb and IESB had acquiesced in the rates charged:
“our pack of cards falls apart”
. Mr Webb said that he had found some Norwegian bank statements that he said would support the Swift argument (worth some £75,000). Mr Macdonald again advised that he was not persuaded that Mr Webb was right on the IVA argument. Mr Simpson’s attendance note concludes with a lengthy section recording Mr Macdonald’s opinion including the following:
“… I think that we have identified that there is a risk of the Master concluding that there was an agreement for changing rates of interest. There is no express agreement for this and the bank are relying upon acquiescence. I think, for there to be acquiescence, then [Mr Webb] must know the rates being charged had been increased and only once did this happen in the 1991 letter. The bank is in difficulties in that they have got no evidence to substantiate the case. It is entirely proper for [Mr Webb] and this case to continue to trial and, in my view, it is appropriate for public funds to be made available to that trial. I do think that this is a case where we should try and achieve a settlement. I don’t think it is right to hold out for the whole cake. What the case is about is what is to happen to the value of the [Property] which is currently approximately £600-700,000.00. We need to explore to see if the bank will let us keep a significant part of the value of that house, ie 60%, that is to say that if the house were sold would the bank allow us to keep 60% of the net proceeds of sale and there would be Legal Aid taxation of the question of costs. I think this is something that should be explored. [Mr Webb] asked whether [Mr Macdonald] considered that he had a case and [Mr Macdonald] confirmed that this is as he has advised… [Mr Macdonald] indicated that he has stated that he feels that the case should be publicly funded but he thinks that we should approach the bank to see what deal they may be prepared to do. There is a point between 100% and 0% at which we may have to consider settlement… Mr Macdonald indicated that this isn’t merely [Mr Webb’s] decision. We are dealing with scarce public funding resources. The Legal Services Commission have been sympathetic and [Mr Webb] has been very fairly treated. We mustn’t go at the case like a bull in a china shop, ie go for a total victory or risk a total defeat. If there is a choice in reaching an agreement then we must enquire into that. There may come a point where an offer is made which if [Mr Macdonald] indicates should be accepted by [Mr Webb] he will have to consider the position. If [Mr Macdonald’s] advice is that it should settle and [Mr Webb] does not accept it then the Legal Services Commission will give [Mr Webb] the opportunity to make representations and, if necessary, to obtain a further Barrister’s advice. [Mr Macdonald] did not think that we are justified in continuing to fight to the finish without considering the options that are open… I do not think that it is necessary to make specific proposals to the bank but I think that if the bank makes a proposal which gives [Mr Webb] a significant portion of the equity in the house we will have to seriously consider this. I think that at some stage it will be necessary to do this but we are not at that point now. They have turned down our request for settlement”
(emphasis added).[48]The trial of the account was listed to be heard on 13th and 14th March 2002 by Master Price in the Chancery Division.[49]It appears that Mr Macdonald received the papers for the trial on 5th March 2002. I was told that his fee note recorded that on the 4 days between 7th and 10th March 2002, he worked a total of 33½ hours in preparing the case, but did not prepare a skeleton argument.[50]On 11th March 2002, much of the day was taken up by consultations attended by Mr Macdonald, Mr Day, Mr Simpson and Mr Webb. Mr Simpson prepared a detailed 11-page attendance note. The note demonstrates that there was a lengthy and detailed discussion about both the merits of Mr Webb’s case and the proper approach to settling the litigation. The note, like Mr Simpson’s other notes, need to be read in their entirety to get the full flavour of Mr Macdonald’s opinions and Mr Webb’s reaction to them. I can only summarise certain salient points:- i) Mr Macdonald was told that Mr Webb had not brought the foreign bank statements that might have supported the Swift argument. ii) There was a detailed discussion about the discrepancies between Mr Franklin’s figures, Mr Sinclair’s figures and Mr Webb’s figures, both of which purported to identify the value of the claim assuming that 2% above base had been charged all along: Mr Webb came up with £155,194 up to the date of demand in June 1991, and Mr Franklin put the figure at £297,726, and Mr Sinclair at £154,000. iii) Mr Macdonald advised again that the IVA argument was a bad point. iv) The conclusion to this detailed discussion of all the issues was that Mr Macdonald advised that the Master was bound to find that Mr Webb owed in excess of £154,000 as at June 1991, minus the IVA dividend, the bank’s costs were likely to be similar to Mr Webb’s at £130,000, and that they needed to try to initiate a deal. Mr Macdonald asked Mr Webb to think seriously about the situation, whilst the consultation adjourned at lunch time.[51]Mr Simpson and Mr Webb then spent 1½ to 2 hours walking round London discussing the matter. The note records that Mr Simpson advised him that it was clear that there was a high risk he was going to lose, and that he would be found to owe a substantial sum, and that it would be desirable to negotiate a position where Mr Webb had the ability to sell the property over time, rather than the likely outcome of the hearing which would be a warrant for possession giving him 4-6 weeks to get out.[52]When the 11th March 2002 consultation reconvened, Mr Webb told Mr Macdonald that the calculation of the total due on Mr Sinclair’s figures was £426,000, and on his figures £400,000. The figures were again debated in detail, but Mr Macdonald concluded that, even if Mr Webb won, he would end up paying nearly £500,000 including costs. He advised that he had a 50-50 chance at best, but his gut view was that Mr Webb would lose the arguments. After Mr Macdonald had strongly advised Mr Webb that it would be foolish to run the gauntlet, and that he should instruct him to talk to the other side, Mr Webb “authorised Mr Macdonald to make approaches to the other side to see what they might accept”. Mr Macdonald then spoke privately to Mr Richard Lissack Q.C., counsel for the Bank. He reported to Mr Webb that the Bank might be prepared to do a deal, but he would only be able to come back with a figure at 9.30am the following morning. Mr Macdonald concluded by advising that if they offered something in the region of £450,000, Mr Webb must take it.[53]Mr Macdonald’s final advice was given in another consultation on 12th March 2002, the day before the trial was due to begin. Again, Mr Simpson prepared a detailed 3-page attendance note. Mr Macdonald informed Mr Webb that the Bank had offered to settle for £550,000, but he felt he could knock them down to £500,000 (including costs). Mr Webb is recorded as being plainly unhappy with the proposed deal, but Mr Macdonald advised that, even if they won (which he did not think they would), Mr Webb would do no better than £500,000. The offer that was eventually accepted was put to Mr Webb and he is recorded as saying that “it appeared that he had little option based on the advice he has been given over the last 2 days by [Mr Macdonald] and [Mr Day] to take this”.[54]Mr Simpson’s file note of the consultation on 12th March 2002 also records the advice that Mr Simpson gave privately to Mr Webb during the morning. This exchange is recorded as follows:- “During the course of the break during today where [Mr Macdonald] was speaking to [Mr Lissack] Mr Webb expressed to me his concerns that having put all the work on the figures and presenting them previously to Counsel he was dismayed that he had been dropped at the last minute and could not proceed with his case. I indicated that clearly Mr Macdonald and [Mr Day] had looked closely at the situation and had concluded that on the evidence there was little prospect now of Mr Webb succeeding to the extent that he would recover something out of the [Property]. It was for this reason that a deal was being done. [Mr Webb] felt that he had been let down by [Mr Macdonald] and couldn’t understand why he had been so negative after being relatively positive in February this year. I could not answer that point. I indicated to Mr Webb however that I was also somewhat surprises (sic) that such a positive view had been given in February although Mr Webb must appreciate that this was subject to his being able to prove the position in respect of the transfers on the Norwegian account and he had not been able to do this. Mr Webb spoke with Mr Sinclair on the telephone whilst I was not a party to such conversation Mr Webb indicated that Mr Sinclair thought that this deal that had been arranged for him was a bad deal. I advised Mr Webb that he must now work on two prong basis, one in respect of raising the funds to try to pay off the debt and the other in respect of taking immediate steps to place the [Property] on the market. I did not want to see him in position where he failed to raise the funds the property hadn’t been placed on the market he lost the property and ended up with nothing. Mr Webb will reconsider the situation and come back to me in due course”.[55]On 12th March 2002, the lawyers were still negotiating the precise terms of the order. Mr Simpson made the following attendance note:
“[Mr Webb] indicated to me that he felt that the bank were being extremely childish and he was totally unhappy about the negotiations being conducted by Mr Macdonald who appeared to be very weak. At the end of the day however he does not want to lose the deal and he indicated that Mr Macdonald should use all his skills to try and get the clause amended to include the words or balance thereof, but if at the end of the day they are unable to agree this, then he will agree very reluctantly to their terminology. In those circumstances he felt he will have been “shafted””
(emphasis added).[56]On 13th March 2002, Mr Webb and the Bank agreed the terms of a consent order (approved by the Master on 13th March 2002) whereby Mr Webb agreed to pay the Bank either £525,000 by 1st July 2002 or £550,000 by 30th September 2002, in default of which the Bank was to be entitled to enforce the order for possession against the Property.[57]On 18th March 2002, Mr Webb wrote to Mr Simpson saying he found it difficult to understand why Mr Macdonald expressed a “completely different opinion” on Monday 11th March 2002 compared to that recorded in Mr Simpson’s note of the 4th February 2002 meeting.[58]On 21st March 2002, Mr Macdonald wrote a short note explaining that Mr Webb’s failure to provide statements from Kredit Kasse Bank to support the Swift argument meant that there was no realistic prospect of success on that point, which was his primary reason for concluding that it was in Mr Webb’s interest to settle on the terms offered by the Bank.[59]On 1st November 2002 (1 month after the final deadline agreed), Mr Webb duly paid the Bank £552,709.30, thereby securing the release of the Mortgage over the Property and the discharge of the Order for possession. Mr Webb had secured employment after the settlement, and was able to raise the money by way of a loan on the Property. Accordingly, Mr Webb has kept his home.[60]On 11th March 2008, just less than 6 years after the Settlement, Mr Webb issued his claim form in these proceedings.[61]On 10th July 2008, the last day for its validity for service, the Claim Form was served. The pre-action protocol for professional negligence actions had not been complied with, and the proceedings came out of the blue so far as the Defendants were concerned.

The pleadings and evidence

[62]The Particulars of Claim allege 11 particulars of negligence against Mr Macdonald and 3 particulars against the Solicitors. The first 5 particulars concern the IVA argument and allege that the argument should have been run, and would have had a real prospect of success. The other particulars concern the failure to recognise the merits of Mr Webb’s defences in relation to the figures, the Rule 4.93 argument, Mr Macdonald’s alleged change of position, and the advice on the settlement. Perhaps the central particular alleges as follows in respect of what has been called in argument the ‘ultimatum’:
“In reaching a settlement figure with the bank’s Counsel, [Mr Macdonald] presented [Mr Webb] with an ultimatum, namely that if he did not accept the terms being proposed, that he would step down, and in so doing failed to act in [Mr Webb’s] best interests”
. The allegations against the Solicitors were that they failed to instruct Mr Macdonald to run the IVA argument, they supported the withdrawal of public funding for the IVA argument, and that they failed properly to appraise Mr Macdonald’s advice and to consider Mr Webb’s ability to seek an adjournment of the trial.[63]Mr Macdonald’s defence denies negligence and denies, in particular, that any ultimatum was given to Mr Webb. It is common ground, however, that, unless I find any part of Mr Webb’s evidence or pleaded case incredible or insubstantial because they are contradicted by contemporaneous documents, I should proceed, for the purposes of these applications on the basis that what he says is true. I have not found Mr Webb’s evidence to be incredible or obviously contradicted by contemporaneous documents, and I have therefore considered these applications on the premise that the factual matters he deals with in his pleadings and his witness statement are capable of being accepted by a trial court.[64]Mr Webb has filed a 37-page witness statement in answer to the Defendants’ applications. Whilst he comments on some of Mr Simpson’s attendance notes in that statement and seeks to correct some factual matters recorded there, Mr Joshua Munro, counsel for Mr Webb, did not, as I have said, submit that the contents of the attendance notes were substantially inaccurate. He accepted that I could rely on them for the purposes of these applications. Mr Webb’s witness statement included the following passages which highlight the central area of factual dispute which would exist between the parties should the matter go to trial:- “126. I asked [Mr Macdonald] if he would act on my behalf if I wanted to proceed with the trial, notwithstanding his new advice (which I considered to be wrong). [Mr Macdonald] said no, and that he would be advising the Legal Aid Board that in his opinion the case was not safe.127. I later asked [the Solicitors] would it be possible to ask for adjournment to find another barrister and [the Solicitors] replied no because the court would not give an adjournment at this late stage but in any event I would not be able to receive legal aid when [Mr Macdonald] informed the Legal Aid Board that he was stepping down from the case because in his opinion there was little chance of success. This was a fait accompli for me which left me dead in the water with nowhere to go.128. I felt I had been given no option by the defendants. The day before trial I was suddenly being told that my claim no longer had good prospects of success and my only option was to settle. I was told that I could not seek an adjournment and that an adjournment would not be granted. … 130. I could not possibly represent myself at trial. In the circumstances I reluctantly agreed to the defendants seeking a settlement and they contacted Lloyd’s bank’s barrister who stated what the terms of settlement would be 131. Despite my view that it was unfair and unreasonable and that the defendants were letting me down I felt I had no option in the circumstances but to agree. … 159. [after explaining how Mr Macdonald had gone down the wrong path on the figures] … it should be emphasised that at [the conference on 11th March 2002] I was under extreme pressure in that I was being asked to do calculations at the time which was best described as the eleventh hour. Additionally I was under pressure by the apparent change of direction by [Mr Macdonald] and the forceful manner [Mr Macdonald] was displaying. 160. … It is my view that [Mr Macdonald] suddenly found himself in a position of having to prepare for trial when [Mr Macdonald] was not prepared. He failed to prepare and agree a skeleton argument that had to be placed before the court and as far as I am aware [Mr Macdonald] had still not addressed these points on the day before the hearing of 13th March 2002”.

Relevant provisions of the CPR

[65]Part 3.4(2) provides as follows:- “The court may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim”.[66]Part 24.2 provides as follows:- “The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –(a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; … and(b) there is no other compelling reason why the case or issue should be disposed of at a trial”. (i) that claimant has no real prospect of succeeding on the claim or issue; … and[67]The note at CPR 24.2.3 says: “In order to defeat the application for summary judgment it is sufficient for the respondent to show some “prospect”, i.e some chance of success. That prospect must be “real”, i.e the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word “real” means that the respondent has to have a case which is better than merely arguable… the Respondent is not required to show that his case will probably succeed at trial… the hearing of an application for summary judgment is not a summary trial …” (see also ED&F Man Liquid Products Limited v. Patel [2003] EWCA Civ 472, per Potter LJ at paragraphs 10, 52-3 concerning factual issues).

The correct approach to an advocate’s advice on settlement

[68]Before turning to the issues to which these applications have given rise, it is useful to set out an extract from the now well-known speech of Lord Carswell in Moy v. Pettman Smith [2005] 1 WLR 581, in which he explains the way in which an advocate’s advice about settlement of litigation should be viewed in the context of negligence proceedings. His views were endorsed by all the other members of the Committee of the House of Lords. He said this at paragraphs 59-60:- “Your Lordships have held in Arthur J S Hall & Co v Simons [2002] 1 AC 615 that the public interest does not require advocates to be held immune from suit for the consequences of their negligence. But that interest does require that the application of the principle should not stifle advocates' independence of mind and action in the manner in which they conduct litigation and advise their clients. That also accords with common justice in a case such as the present. Latham LJ cited an apt passage from the speech of Lord Salmon in Saif Ali v Sydney Mitchell & Co [1980] AC 198, 231:
"Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent." "
Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent." The same thought has been expressed in the Ontario High Court by Anderson J in Karpenko v Paroian, Courey, Cohen & Houston (1980) 117 DLR (3d) 383, 397-398 in a passage which mutatis mutandis is material to the present issues: "What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a lawsuit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst constitutes an error of judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error that negligence would be found." 60. As Latham LJ acknowledged, the difficulties faced by an advocate who is advising on acceptance or rejection of a settlement are manifold and the pressures, especially if the advice has to be given at the door of the court, can be heavy. In such circumstances it would be surprising if every such piece of advice were reasoned with as much comprehensive precision as may be applied in hindsight by an appellate tribunal which has had the benefit of extensive argument and leisurely reflection. Since the decision in Arthur J S Hall & Co v Simons advocates have been liable to their clients for negligence in the same way as other professional persons. It would not be in the interests of those clients if they were compelled by the effect of over-prescriptive decisions to adopt a practice of defensive advocacy in the conduct of litigation or advising litigants about the course to be taken. I would endorse the view expressed by Brooke LJ in the Court of Appeal, to which I have already referred, that it would be unfortunate if they felt that they had to hedge their opinions about with qualifications. It would be equally unfortunate if another effect of the same syndrome were to be an abdication of responsibility for decisions relating to the conduct of litigation and a reluctance to give clients the advice which they require in their own best interests. Nor do I consider that to give clients a catalogue of every factor which might affect the course of action to be adopted, on the lines of that suggested in argument by Mr Livesey for the solicitors, would be a productive discharge of advocates' duty to give them proper advice”.

The competing positions of the parties

[69]Mr Graeme McPherson Q.C., counsel for Mr Macdonald, and Mr George Spalton, counsel for the Solicitors, submit that Mr Webb’s claim has no real prospect of success. They say that the advice that was given fell squarely within the principles set out in Moysupra, and that Mr Webb agreed to a settlement that was at the low end of what might have been expected even if he had won the arguments he was advancing. Had he lost, Mr Webb faced losing the entirety of the Property since the Bank’s claim was likely to reach close to £1 million including costs. In fact, Mr Webb kept the Property, and has no valid complaint against his lawyers. Even if there were a real prospect of showing that the Defendants had been negligent, they submit that no loss was, even arguably, caused to Mr Webb as a result of it. The outcome would have been the same or worse, even if the case had been fought.[70]Mr Munro, on the other hand, has focused on Mr Webb’s behalf, on essentially three aspects of the claim. He submits that this is an area of developing law in which the court should be hesitant to grant summary judgment without making actual findings of fact, relying on Brooke LJ’s dictum at paragraph 40 in Equitable Life Assurance Society v. Ernst & Young [2004] PNLR 269. Against that background, the three main points he makes may be summarised as follows:- i) The IVA argument was a strong one, and would have obliterated the Bank’s claim. Mr Macdonald ought to have run the point as he originally advised should happen. He was negligent to advise that the point was bad. ii) The arguments on the figures were better than Mr Macdonald advised, and Mr Webb would, on a conservative estimate, have done about £280,000 better had he fought the case. Accordingly, Mr Webb has a real prospect of showing that Mr Macdonald was negligent in advising on the figures. iii) The Defendants’ advice on the settlement, the making of the ‘ultimatum’, and their failure to advise that Mr Webb could seek an adjournment and a second opinion was negligent and wrong. Mr Macdonald should not have said that he would not act. Mr Webb would have secured an adjournment, and legal aid would either not have been withdrawn, or if it had, Mr Webb could have privately financed the litigation by a loan from his son-in-law.[71]In focussing on these points, Mr Munro did not abandon any of his pleaded particulars, and I shall deal with them in due course. In addition, he argued that, if there were a real prospect of success on negligence, the question was whether there is a real prospect of showing at trial that there was a more than a negligible chance of doing better in front of the Master than Mr Webb did in the actual settlement. In the result, the argument did not focus on this latter point, because I indicated in the course of argument that it seemed to me that, if the Defendants failed to show that Mr Webb had no real prospect of succeeding on negligence, it would be very hard to grant summary judgment on the basis that loss would not be established. The figures in this case are undoubtedly detailed, and there are numerous different possible permutations; if a breach of duty were made out, it seems to me that it would be impossible to say at this stage that no loss or loss of a chance could be established.[72]The central questions are, therefore, in my view, whether or not Mr Webb has a real prospect of establishing that Mr Macdonald and/or the Solicitors breached their duties to him in the three areas that I have mentioned.

The IVA argument

[73]The question of whether Mr Macdonald’s advice on the IVA argument was wrong is primarily one of law, and therefore one that is prima facie amenable to resolution at the summary judgment stage.[74]Mr Munro has put Mr Webb’s case primarily on the basis of the construction of the documents that allowed the Bank to prove for a final dividend in Mr Webb’s IVA. He argues that these documents show either that the Bank relinquished its security or, at least, that they relinquished their right to claim the sum for which they proved in the IVA, namely £364,637.[75]I should say at the outset that the Bank and the Supervisor of the IVA seem to have made at least two obvious errors on the figures:- i) From the very beginning, on 26th February 1993, the Bank said it claimed £364,637.29 in respect of IESB’s overdraft at the date of its winding up on 27th March 1991. In fact, however, the Bank was only entitled (at the most) to claim from Mr Webb the sum of £305,646.48 that it had demanded under the Guarantee on 26th July 1990, plus interest on that sum at 2% over base thereafter. ii) Although on 24th September 1993, the Bank had said (probably reasonably accurately) that it expected to have a claim for about £100,000 in excess of the value of the mortgaged Property, when it came to 1997, it claimed the whole £364,637 (which was the wrong figure in the first place) in the IVA without making any estimate of what part of that sum might be recovered out of the value of the Property.[76]These errors do not really affect the points made by Mr Munro, but they do highlight the bank’s rather casual approach to Mr Webb’s debt; an approach which seems to have persisted over many years.[77]I start, then, by setting out the material statutory background:- i) Section 258(4) of the Insolvency Act 1986 makes it clear that a creditor’s meeting approving an IVA “shall not approve any proposal … which affects the rights of a secured creditor … to enforce his security, except with the concurrence of the creditor concerned”. ii) Rules 6.115 and 11.9 of the Insolvency Rules 1986 allow a secured creditor to revalue his security (although only with the leave of the Court if he has voted in respect of the debt) after the declaration of a dividend and provides for consequential adjustments to be made in the amount of that dividend received by the secured creditor.[78]In Khan v. Mortgage Express [2000] BPIR 473, it was held that secured creditors who had proved in respect of the expected shortfall over the value of their security, were not prevented from realising their security over and above its expected value. In Whitehead v. Household Mortgage Corporation plc [2003] 1 WLR 1173, the Court of Appeal held that, in the absence of an express term in an IVA, the court should be slow to imply a term that, by participating in and accepting payment of a dividend, a secured creditor had agreed to treat part of his debt as unsecured (see paragraphs 24-26 in the judgment of Chadwick LJ).[79]Mr Macdonald advised without reference to the Khan case, which had been decided and reported at the time he advised. It was not, however, precisely on point. Against the background of the 1986 Act and Rules, the question of whether the Bank could be said either to have abandoned its security over the Property or to have relinquished its right to claim £364,637 from the security, turns on the terms of Mr Webb’s IVA and the terms on which the Bank proved for a dividend in that IVA. In my judgment, those terms make it clear that the Bank was not abandoning any right to claim the full amount of its debt out of the secured Property.[80]In the first place, the approved IVA proposal makes clear that secured creditors will continue to rely on their security.[81]Secondly, when 4 years later, the Bank was asked to participate in the final dividend process so that the IVA could be brought to an end, it was specifically informed that the claim would be admitted “merely for dividend purposes”. This proposal was made with Mr Webb’s consent. Though it is true, as Mr Munro contends, that Mr Webb’s concern was that he should not be inhibited from contesting the amount of the Bank’s debt in future, the terms offered to the Bank were plainly competent to protect its position as well. The agreement signed by each of the Bank, the Supervisor and Mr Webb provided that it was it was acknowledged by all parties that “agreement of the [Bank’s] claim in the [IVA] cannot and will not be used by any party, by way of evidence in any further actions that there may be between the [Bank] and [Mr Webb]”, and that “the claim had been admitted merely for dividend purposes and to enable [Mr Gillett] to finalise the administration of the [IVA] of [Mr Webb]”.[82]Thirdly, Mr Munro argues that the Bank’s letter dated 15th August 1997 meant that the Bank was relinquishing its right to claim at least £364,637, because its covering letter to the Supervisor said that its attached claim was being submitted “purely on the basis that whilst we are completing this in respect of a large proportion of the debt we are continuing to rely on our security”. He argues that this passage must be understood as if a comma had been inserted after the words “completing this”, so that it said that the claim was being submitted “purely on the basis that whilst we are completing this, in respect of a large proportion of the debt we are continuing to rely on our security”. If that is how it is to be read, the Bank would have been saying that it was compromising a large proportion of its debt (i.e. £364,637), but relying on its security only for the balance. Apart from the fact that there is no comma where Mr Munro would wish to find one, this reading of the covering letter is at odds with the IVA itself and all other documents prepared by the Bank and the Supervisor, and agreed with Mr Webb. Moreover, the Bank never once, after 1997, suggested that its debt had been reduced or compromised in respect of the part for which it had proved in the IBA.[83]For these reasons, it seems to me that Mr Macdonald was right to advise that the IVA argument was unlikely to succeed. And there is nothing in the complaint that he went back on his written advice that the argument was a proper one to make, would not add greatly to the costs, and that the sensible course was to make the argument and see if it appealed to Master Price. Mr Macdonald was simply saying that, if the case was being fought, it would not be improper or costly to raise the argument. On the central issue here, Mr Macdonald gave Mr Webb the correct advice. Nothing he said was something which no reasonably competent Chancery silk could have advised. I would, therefore, hold that the IVA argument was wrong, and that there is no real prospect of the first 5 particulars of negligence pleaded against Mr Macdonald and the first 2 particulars pleaded against the Solicitors succeeding.

The advice given in relation to the figures

[84]In the course of oral argument, Mr Munro abandoned any reliance on the Swift argument. Thus, his case turns on whether Mr Macdonald advised, as no reasonably competent Chancery silk could have done, on the prospects of success on the figures. Mr Munro contends, in substance, that each of the Interest argument, the Charges argument, and the Feeder Companies argument had a good prospect of success, and that Mr Macdonald, therefore, advised Mr Webb to pay too much money.[85]I do not propose, in this judgment, to make a detailed analysis of the figures. But since much has been made of their supposed complexity, I think I should say how I see this issue. First, whilst I accept that Mr Webb did a huge amount of work recalculating the sums due from IESB to the Bank on various different bases, there seem to me to have been some clear parameters to the debate as to how much Mr Webb owed:- i) The Bank demanded £305,646.48 from Mr Webb on 26th July 1990, but before that none of the arguments now raised had ever apparently been suggested by Mr Webb or his co-directors of IESB during the first 13 years of that company’s relationship with the Bank. ii) Mr Sinclair and Mr Webb appear to have assumed throughout the litigation that the Bank should only ever have charged IESB an overdraft rate of 2% above base rate. Though the Bank did not seek to show express agreement by IESB to the higher rates charged, Mr Macdonald thought that the Bank had a good chance of establishing that IESB had acquiesced in them. I am bound to say that I would be surprised if the Master, who has no doubt long experience of claims by banks, had not been less than sympathetic to an argument, years after the event, that a bank was not entitled to charge a customer that was regularly writing cheques without the funds (it had some 700 returned cheques) and was frequently outside its limits more, by way of interest, than it charged its best commercial customers. Mr Macdonald’s advice, therefore, that the argument might be lost was, in my judgment, correct. Notwithstanding this correct advice, Mr Macdonald seems to have evaluated the proposed settlement figures on the premise that the Interest argument might be won. It is hard to see how Mr Webb can really hope to make good a criticism of Mr Macdonald’s conduct in so doing. iii) The Charges argument was, even on Mr Sinclair’s approach, an optimistic one. It is true that, if less interest had been charged, a lesser number of cheques might have been returned, and IESB might have been within its facilities for longer periods. But Mr Webb’s suggestion that all the Bank’s charges for 13 years – including the costs of bounced cheques - should be credited, was frankly fanciful. Mr Macdonald proceeded on the basis that the Charges argument would be lost. Mr Webb knew and accepted that he was doing so, and, in my judgment, Mr Macdonald’s approach was plainly sensible. iv) The Feeder Companies argument was never supported by any bank statements or documents concerning IESB’s subsidiaries’ accounts. What was said was that IESB was charged in respect of interest and charges incurred by its subsidiaries. Mr Munro, argued that, as a conservative estimate, Mr Macdonald should have assumed that some £29,225 would have been deducted for charges wrongly charged to IESB in respect of the Feeder Companies accounts. I do not understand how it can be said that Mr Macdonald’s approach to this problem was wrong. He had advised on 27th July 2001 that Mr Webb was in great difficulty on this argument. Mr Sinclair had not had the material to make any scientific calculation. Moreover, the argument itself was based on a false premise that IESB should not have been responsible for its subsidiaries’ charges, when the reality was that IESB must voluntarily have transferred funds to pay the charges. And, as Mr Macdonald was told on 11th October 1999, there was little or no evidence to support the argument. v) The Bank’s claim was, on any analysis, much in excess of the settlement figure that Mr Webb consented to. The parties have each calculated the figures on the basis that the Bank was claiming £305,646.48 up to the demand on 26th July 1990, and that 2% above base at 6 monthly rests after that, increased the debt to just over £850,000 as at 13th March 2002. Adding the £100,000 for costs on top (which is the figure Mr Munro initially adopted), the total claim comes to approximately £950,000. From that something could be deducted for the IVA dividend of £6,246, and the recoveries the Bank had made at that time from Mr Webb’s co-guarantors, Mr Derrick Mason (in the inclusive sum of £60,000 on 8th May 2000), and Mrs Young (in the inclusive sum of £25,000 on 3rd January 2002). A larger recovery was made from Mrs Young on 10th January 2003 after the settlement had been reached. On any basis, if the Bank had succeeded, its claim would have used up the whole of the equity in the Property, which was only valued at £600,000 to £700,000 at that time, and had two relatively modest prior mortgages.[86]In addition to the above matters, both sides have made calculations of the sums they say that Mr Webb would have been ordered to pay if he had won the figures arguments. Whilst I accept that it is possible on a summary judgment application to undertake such calculations to see, in ballpark terms, whether the settlement was good, bad or indifferent, these calculations do not seem to me to be answering the key question before the court. The question is whether Mr Macdonald can show that Mr Webb has no real prospect of establishing that the advice he gave was such as no reasonably competent Chancery silk would have given.[87]To decide this essential question requires, in my judgment, the application of the principles explained by Lord Carswell in Moysupra. It is true that Mr Macdonald was not advising at the door of the Court, but he was advising in the immediate run-up to trial, when a settlement had to be reached soon if it was going to be reached at all. The attendance notes, to which I have referred in detail above, demonstrate that Mr Macdonald engaged in a detailed discussion about the figures and the uncertainties about them. He began from the starting point that it would be useful to calculate approximately what Mr Webb would have to pay if he won the reasonably arguable points. Thus, he was looking to establish what the figure would be if Mr Webb won the Interest argument (even though such a victory was far from certain), but not the Charges argument or the Feeder Companies argument. This approach was, in my judgment, entirely sensible, prudent and realistic. The prospects of doing better were small, as Mr Macdonald, in effect advised. The prospects of doing worse were great.[88]I cannot determine on a summary judgment application the minimum sum that Mr Webb would have had to pay on this basis, nor can I say precisely how much would or should have been taken into account by way of recoveries from the co-directors or even the IVA dividend. What I can say is that Mr Macdonald seems to me to have advised a difficult client in a balanced and practical way. It seems to me to be unfair to suggest, as Mr Munro has done, that Mr Macdonald was not on top of the figures. He was not solely concerned with the value of the house, or with working backwards from that. The attendance notes paint a different picture. The point, however, is that I cannot determine, as if this were a trial, whether Mr Macdonald failed at one stage or another to take this or that figure into account in the course of the extremely lengthy discussions about settlement on 11th and 12th March. I do not need to do so. I can, however, decide that the allegation (in paragraph 7 of the particulars of negligence) that Mr Macdonald failed to recognise the merits of the Interest argument, and in so doing negotiated a settlement at a substantially higher amount than Mr Webb could have reasonably been expected to settle is simply untenable. Likewise, it is impossible for Mr Webb to argue successfully that he should have been advised that he had a complete defence to the Bank’s claim.[89]Mr Munro has filed after the hearing yet further detailed calculations attempting to reduce the minimum that Mr Webb should have had to pay far below the figure of some £400,000 excluding costs that was discussed in detail with Mr Webb on 11th March 2002. These calculations do not assist, and do not engage with the debate that Mr Macdonald, Mr Simpson and Mr Webb were having on 11th March 2002. They go nowhere in showing that Mr Macdonald gave negligent advice on that day. Even if, as Mr Munro opened his submissions by saying, the very minimum outcome would have been £280,000 below the final settlement figure, that does not alter the fact that Mr Webb actually paid some £400,000 below the Bank’s claim. Mr Webb seems to have had difficulty understanding that a settlement is always going to be a compromise between two extreme positions.[90]For these reasons, I have concluded that Mr Webb has no real prospect of establishing that Mr Macdonald’s advice on the figures was such as no reasonably competent Chancery silk could have given. The following points can be made by way of postscript:- i) When all Mr Macdonald’s advice is read in context from the attendance notes, there seems to me to be no substance in the allegation that Mr Macdonald changed his mind significantly. The factual situation changed somewhat, as did the figures calculated by Mr Webb and advised upon by Mr Sinclair. And Mr Webb, of course, failed to produce evidence he had promised to find. But Mr Macdonald always advised that the case should be settled if possible so as to allow Mr Webb to retain some part of the Property. Mr Macdonald may have shown more enthusiasm for a settlement as the trial approached, but that was mainly because what Mr Webb would and would not be able to prove became clearer at that time. ii) On any analysis, if Mr Webb had won the Interest argument, but not the other arguments, he would have had to pay the bank a significant sum, which, including costs and net of appropriate credits, would have been less (including interest from 26th July 1990) but not hugely less than the £525,000 he agreed to pay. But, as I have indicated already, the lowest possible outcome was not what Mr Macdonald was advising upon. He had to weigh up the chance of winning and losing. The amount the Bank would have recovered if it had won would have been much greater than Mr Webb paid. Mr Macdonald’s advice on the figures, then, was obviously reasonable. It seems to me to be inconceivable that Mr Macdonald’s approach to the figures on 11th and 12th March 2002, in the lengthy debates that he had with the Solicitors and the client could ever be established to have been negligent. Even if he was, as alleged, rather pessimistic, that does not mean that he gave advice that no reasonably competent barrister could have given.

The ultimatum allegation

[91]I assume for the purpose of this allegation, that the facts stated in Mr Webb’s witness statement (some of which I have set out above) are accurate. Mr Macdonald is alleged to have said he would not act, and he and the Solicitors are said to have ignored the prospect of obtaining an adjournment. Mr Webb says that he was thereby left with no option but to agree to the settlement negotiated with the Bank.[92]I should say at the outset that I do not accept Mr Munro’s characterisation that the Bank imposed a settlement, or that Mr Macdonald agreed to everything that the Bank’s counsel demanded. That is not borne out by the attendance notes. Rather, I think Mr Macdonald tried to reduce the amount that Mr Webb would have to pay, but only succeeded partially in doing so. But even the first offer of £550,000 made by the Bank was considerably less than the Bank was claiming and far below its best case.[93]The primary question here is whether it could have been negligent for Mr Macdonald to have backed up his advice about the settlement (to the effect that it was in Mr Webb’s best interests to accept the deal on the table) by saying, in effect that he would not continue to act if that advice were rejected.[94]I do not understand it to be Mr McPherson’s case that Mr Macdonald was entitled to refuse to act under the Bar Council’s Code of Conduct, save on the ground that Legal Aid had been withdrawn. Under paragraph 609(d) of the Code, a barrister may withdraw from a case where is satisfied that there is “some other substantial reason for so doing”. One such reason would obviously be if Legal Aid funding was withdrawn and no alternative funding was available to pay his fees. But Mr McPherson did not suggest that Mr Macdonald would have been justified in withdrawing, anyway so close to trial at a time when another barrister (probably including Mr Day, who, although briefed, had not been intimately involved in the case in recent weeks) could not have easily prepared the case properly in time.[95]It seems to me that it is important to understand what Mr Macdonald must have been understood to mean when he allegedly said that he would step down if the proposed terms were not accepted. Mr Webb’s own evidence on this point is as follows:- i) Mr Macdonald said he would not act (if I refused the offer) and that he would be advising the Legal Aid Board that in his opinion the case was not safe. ii) The Solicitors said the court would not give an adjournment at this late stage but in any event I would not be able to receive legal aid when [Mr Macdonald] informed the Legal Aid Board that he was stepping down from the case because in his opinion there was little chance of success. iii) The day before trial I was suddenly being told that my claim no longer had good prospects of success and my only option was to settle.[96]It will also be recalled that Mr Macdonald had discussed the consequences of refusing to accept an offer in the consultation on 4th February 2002. I have set out a large part of the attendance note of that consultation above.[97]In these circumstances, I have no doubt on the evidence of Mr Webb and the attendance notes as to what Mr Webb would have been intended to understand and did understand from what Mr Macdonald is alleged to have said. Mr Webb understood that what he was saying was a shorthand for:- i) If you refuse to agree the settlement I have advised you to accept, I will have to tell the LSC; ii) The LSC will then withdraw your legal aid certificate; iii) When they do that, I will not be able to continue to act, because I will not be funded to do so.[98]Mr Munro has argued forcefully that there was no justification for giving this advice. He relied upon Part X of The Civil Legal Aid (General) Regulations 1989 provided as follows:- “74(1) An Area Director may terminate a certificate by revoking or discharging it under this Part of these Regulations. 77(1) The Area Director shall discharge a certificate from such date as he considers appropriate where, as a result of information which has come to his knowledge, he considers that(a) the assisted person no longer has reasonable grounds for taking, defending or being a party to the proceedings, or for continuing to do so; or(b) the assisted person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the fund; or(c) it is unreasonable in the particular circumstances that the assisted person should continue to receive legal aid. 81(1) … no certificate shall be revoked or discharged until – (a) notice has been served on the assisted person that the Area Director may revoke or discharge his certificate … and that he may show cause why it should not be revoked or discharged; and (b) the assisted person has been given an opportunity to show cause why his certificate should not be revoked or discharged. (2) Where an Area Director revokes or discharges a certificate after notice has been given under paragraph (1), the assisted person may appeal …” (a) the assisted person no longer has reasonable grounds for taking, defending or being a party to the proceedings, or for continuing to do so; or (b) the assisted person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the fund; or (c) it is unreasonable in the particular circumstances that the assisted person should continue to receive legal aid. (a) notice has been served on the assisted person that the Area Director may revoke or discharge his certificate … and that he may show cause why it should not be revoked or discharged; and (b) the assisted person has been given an opportunity to show cause why his certificate should not be revoked or discharged.[99]Mr Munro contended that:- i) The LSC would not or could not have revoked Mr Webb’s certificate in the short time between 12th and 13th March 2002, so it was simply wrong for Mr Macdonald to say that he would not act. ii) The required procedures of giving notice under regulation 81(1) and allowing the assisted person to show cause could not have been completed in the time available. iii) Rather, the more likely position was that, if Mr Webb had failed to take counsel’s advice and the LSC had been informed, it would have allowed Mr Macdonald to go ahead and defend Mr Webb, or would have suggested that an adjournment be obtained so that new counsel could be instructed. iv) Anyway, Mr Webb could somehow have obtained an adjournment by claiming the case would go on longer than 2 days, or by arguing that he had a problem with his legal representation.[100]We may all have our own experiences of how the Legal Aid Board and its successor, the LSC, act in situations like the one in which these parties find themselves. But I cannot, as it seems to me, speculate on these applications as to what might have happened, let alone decide what was the most likely outcome. The question for me is only whether Mr Macdonald and the Solicitors can establish that these allegations of negligence against them have no real prospect of success.[101]I have found this aspect of these applications the most difficult to deal with: first, because there is a measure of disputed fact which I cannot decide, and secondly because Mr Webb is making a serious allegation against experienced lawyers. In effect, he is saying that they presented him with an unjustified fait accompli – and that they issued him with an unattractive ultimatum. As it seems to me, however, the really important question is whether there is a real prospect that the fait accompli or the ultimatum will be shown to have been unjustified. If not, then the claim has no real prospect of success.[102]On the view I have taken of Mr Webb’s case on this point, and the nature of the allegation, Mr Webb has no prospect of showing that the advice he was given was such that no reasonably competent Chancery silk could have given, nor indeed that reasonably competent solicitors could not have reinforced. I say this for a number of reasons:- i) The criticised statements are not pure legal advice. They are a conflation of some practical advice that Mr Webb had been given over a series of at least 3 consultations. ii) It was correct that the normal position, if Mr Webb rejected the advice of his lawyers and refused a reasonable offer to settle, would be that his legal aid certificate would be revoked. iii) It is true that the LSC might have taken some time to get their act together, but that does not mean that the advice that Mr Macdonald gave, even as to the practical realities, was wrong. iv) The real complaint that Mr Webb is making is that he should have been given some options as to how he might, by stealth, have got round the formal position. What he wanted to do was to reject Mr Macdonald’s advice, because he did not like it, and be allowed, at public expense, to continue to fight the case, whether that was in his real interests or not. v) I have not forgotten that, somewhat as an afterthought, Mr Webb has argued that he could have obtained private funding of £15,000-£20,000 from his son-in-law, Mr Michael Gigney. But this was never suggested to Mr Macdonald or the Solicitors, and it would have been hard to imagine that someone who had been fighting a case such as this for years could have suddenly produced assets sufficient to allow him to fund the action himself. vi) Ultimately, I find Mr Webb’s complaint to be an inappropriate one. If, as I have found, Mr Webb was given the correct advice as to both the IVA argument and the figures, it seems to me that his last ditch complaint is that he was not permitted to work the system so as to obtain an unjustifiable adjournment (at significant cost to public funds) so as to be allowed to shop around to find someone who might be prepared to argue bad points for him. There is no doubt that Mr Webb had invested a huge amount of time and effort in showing that the Bank had been overcharging IESB over the 13 years between 1977 and 1990. But even in 2002, the banking relationship had terminated at least 11 years before. Many of the documents had been lost, both by Mr Webb and by the Bank. The case was even then as stale as could be; yet, Mr Webb was still obsessed by it, and was refusing to take sound advice. It seems to me that Mr Macdonald and the Solicitors were justified in taking a hard line with him. Litigation is not a game; it requires finality. This litigation had already gone on far too long. It was time for a view to be taken. Mr Macdonald took a view. In my judgment, the view he took was plainly correct, and Mr Webb has no real prospect of showing that what he advised was negligent.[103]I should make specific reference to the allegation against the Solicitors that they failed to properly appraise Mr Macdonald’s advice and conduct, and Mr Webb’s ability to seek an adjournment. It seems to me that this allegation has the same air of unreality about it. Mr Webb had been advised by leading Chancery counsel on no less than 8 separate substantive occasions. The advice was, all along, that settlement would have to be considered at some stage. When that stage arrived, Mr Webb was unwilling to accept the advice. The question for Mr Macdonald and the Solicitors was whether they could properly advise the continuation of public funding. Under the rule in Hanning v. Maitland (No 2) [1970] 1 Q.B. 580 at page 589, they had to be satisfied that Mr Webb was ‘more likely than not’ to succeed. Success, once the settlement was on the table, meant doing better than that settlement if the case were fought. For the reasons I have already given, I do not think Mr Webb has any real prospect of establishing that either Mr Macdonald or the Solicitors could properly have so advised.[104]Neither Mr Macdonald nor the Solicitors can be criticised for refusing to advise on devices which might have been employed to get round these harsh realities, or for failing to suggest persuading the Master to allow further costs to be incurred by adjourning a 2 day hearing for which everyone was prepared. They were entirely right to say that the Master could not have been expected to adjourn such a case.

A loose end

[105]Rule 4.93 of the 1986 Rules provides that:- “Where a debt proved in the liquidation bears interest, that interest is provable as part of the debt except in so far as it is payable in respect of any period after the company went into liquidation …”.[106]The sixth particular of negligence against Mr Macdonald alleges that he failed to recognise that this Rule meant that the Bank could only seek to recover from Mr Webb the debt owed by IESB at the commencement of its liquidation, together with interest at the rate specified in the Guarantee. Mr Munro has rightly not pursued this point with any enthusiasm, since the Bank’s primary claim was for the debt as at the date of the demand on 26th July 1990 (£305,646), which was some 8 months before ISEB’s winding up (when the debt had become on the Bank’s case £364,637).[107]A refinement of this argument was also at one time advanced by Mr Webb, to the effect that no interest could be claimed against Mr Webb that could not be proved for in the liquidation of IESB under Rule 4.93. This argument was misconceived because Rule 4.93 is irrelevant to the claim under the Guarantee after the demand. Rule 4.93 is concerned only with what can, and what cannot, be proved for in the winding up of the company.

Conclusions

[108]I have dealt with the allegations of negligence made in the Particulars of Claim in some detail as the parties did in argument. In the result, I have concluded that none of them is sustainable and that there is no real prospect of the claim succeeding against either defendant.[109]I have also to consider whether there is some other reason for a trial, bearing in mind Mr Munro’s submission that this is an area of developing law, so that cases should not be decided on written evidence or assumed facts. I accept that there does not seem to have been a reported case before in which there was an allegation that a barrister gave his client an ultimatum of the kind alleged here. But I do not think that these assumed facts put the case into a category of cases that require a trial either because the law is developing or because there ought to be a trial before the legal problem raised by the facts can be properly considered. It seems to me, as I have said, that though the facts alleged have not been raised before, the principles that I have applied are well known and well expressed in previous authority.[110]I will, therefore, grant summary judgment in favour of both defendants and hear counsel on the appropriate form of order, and costs. I do not think it is necessary in the circumstances to decide whether to strike out the claim against the Solicitors.[111]I should not want to leave this matter without returning to the point I made at the beginning of this judgment. I fully understand Mr Webb’s strength of feeling. He spent many months creating a spread sheet that aimed to show how much the Bank could have charged IESB if the entire banking relationship had been conducted on a different footing. The problem is that it was not. Mr Webb cannot, in my judgment, blame his lawyers for giving clear, independent, and straightforward advice to settle the Bank’s claim at a relatively low level, years after the event. That advice seems to me to have been an example of the kind of advice to which Lord Carswell was referring in Moy. Mr Munro valiantly attempted to distinguish the facts in this case, but in my judgment the situation here falls well within the principles there enunciated.