“Wallace appear to have unilaterally included the [Overage Period] despite the parties having made no provision for it in [the heads of terms] and without having received any instructions from [Powis] or any request from Dagmar to do so”
“The real failure of Wallace as I see it was to not include in the Overage Schedule any obligation on the Developer to carry out the works and use reasonable endeavours to complete sales within the 5 year period. … So I think my main points for discussion are as to whether we have focussed on the right claims against the Defendants (and Wallace in particular) in this regard and whether we can make them good re causation if it was Laxcon who delayed the works to avoid liability.”
“(1) Failed to negotiate with Dagmar to include in the Heads of Terms a provision requiring Dagmar (or its successor in title) to use all reasonable endeavours to undertake and complete the development and sell the residential units within a reasonable time and/or within the overage period; alternatively Cradick failed to advise Powis directly or through Wallace that such a provision should be included; (2) On the contrary, despite knowing that Powis wished to include an obligation to build, negligently advised that it was "very doubtful" that Dagmar, or indeed any purchaser, would agree to such a provision … (3) Failed to advise Powis that the overage period (if any) should run from the date of actual completion or alternatively the Effective Date under the Dagmar Contract and not from the date of exchange of contracts (4) Failed to advise Powis that the consequence of starting the period from the date of exchange was that it would effectively be significantly less than five years, because of the length of time which it would take to obtain planning permission (including the necessary S.106 Agreement) and then to await the expiry of the Judicial Review period prior to completion; (5) Failed to advise Powis that there was a significant risk that the overage period drafted by Wallace would expire before the date when the development might reasonably be expected to have been completed and the residential units sold, especially if (i) there was no obligation on Dagmar as set out in sub-paragraph (1) above and (ii) the overage period was as short as five years from the date of exchange of contracts”
“47. In particular Mr Pilling KC should have (but failed to) include each of the Relevant Claims in the Particulars of Claim, alternatively one or more of them; and should have (but failed to) advise that each of the Relevant Claims, alternatively one or more of them, be included in the Particulars of Claim. This is in the light of the following circumstances: (1) It was apparent from the information provided to Mr Pilling KC, and Mr Pilling KC should have (but it is inferred failed to) appreciate, that each of the Relevant Claims was a claim of real merit and significant value, and, yet further, that the Relevant Claims were the best claims (in the light of their merits and value) available to Powis against Cradick (or which would have been available against Cradick Retail LLP, had Cradick Retail LLP acted); (2) The obvious difficulties which Mr Pilling KC should have (alternatively did) anticipate would be faced in obtaining permission to amend the Particulars of Claim after their service so as to include the Relevant Claims, or any of them, in the light of the expiry prior to19 April 2018 of the limitation periods under theLimitation Act 1980 applicable to the Relevant Claims”
“Those who hold themselves out as qualified to practise [in a profession], although they are not liable for damage caused by what in the event turns out to have been an error of judgment on some matter upon which the opinions of reasonably informed and competent members of the profession might have differed, are nevertheless liable for damage caused by their advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do.”
“No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. … The kind of judgment which a barrister has to exercise in advising a client as to who should be made defendant to a proposed action and how the claim against him should be pleaded, if made with opportunity for reflection, does not seem to me to differ in any relevant respect from the kind of judgment which has to be made in other fields of human activity, in which prognosis by professional advisers plays a part. If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence against him will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take.”
“Much if not most of a barrister's work involves exercise of judgment—it is in the realm of art not science. Indeed the solicitor normally goes to counsel precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment, which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is very unlikely to succeed.”
“I am far from saying that if the advice or document turns out to be wrong, it necessarily follows that he who gave or drew it is liable for the loss caused by its imperfection. The barrister is under no duty to be right; he is only under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balanced problems. Diametrically opposite views may 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 has been negligent.”
“The exercise of judgment is an exercise in which demands are made on a barrister’s intellect, erudition, practical experience and, often, intuition. Very often indeed the decision whether a point should be pleaded draws on all four of these qualities...”
“It follows from this that if a barrister omits to plead a cause of action in a situation where no other reasonably competent barrister, acting with ordinary care, would have failed to plead that cause of action, then he or she will be liable to compensate the client if loss flows foreseeably from that negligence. If on the other hand other reasonably competent barristers holding themselves out as competent to practise in the relevant field and acting with ordinary care might also have decided not to plead that cause of action, then there will be no question of professional negligence.”
“Secondly, in a system which populates its senior bench from the practising profession, an outside observer might discern equal and opposite risks of excessively sympathetic and excessively critical appraisals of the conduct of legal practitioners. In holding, as this court does, that Underhill J has erred in the latter of these directions, we ought also to recognise his desire to maintain a high standard of professional trustworthiness. The law does not, however, demand either omniscience or infallibility in lawyers any more than it does in doctors or architects. The law’s standard of reasonable competence means not only that there will be errors which are not compensable but that legal advisers are not expected to divine every claim that a client may theoretically have.”