Evans v Betesh Partnership & Ors

Factual and Procedural Background

On 11 July 2009, the Plaintiff was a front seat passenger in a vehicle driven by the Driver when it left the road and struck a tree, resulting in the Plaintiff sustaining a traumatic brain injury. The full extent of the injury was not immediately assessed. In March 2010, the Plaintiff instructed the Defendant solicitors (the firm) and a Defendant barrister to pursue personal injury claims against the Driver. In November 2011, the Plaintiff instructed the firm to accept a Part 36 offer of approximately £100,000 in damages, settling the claim. An appointment with a consultant neuropsychologist, which could have better evaluated the Plaintiff’s prognosis and the adequacy of the settlement, was cancelled. The Plaintiff contended that had this assessment occurred, the settlement sum would have been deemed inadequate and would not have been accepted.

It was not until December 2017 that the Plaintiff saw the neuropsychologist, and in November 2019, the Plaintiff initiated proceedings against the firm and barrister alleging professional negligence for negligently under-settling the personal injury claim.

The Defendants applied for summary judgment or alternatively to strike out the claim, arguing that the Plaintiff lacked capacity to litigate at the time of the settlement and that the limitation period had not expired. The District Judge rejected this, finding a genuine dispute as to whether economic loss had been suffered due to Defendants' negligence.

However, the Judge allowed the Defendants’ appeals and struck out the claim on the basis that the pleadings contained inconsistent averments about the status of the settlement and the Plaintiff’s capacity, rendering the claim embarrassing and unsustainable. The Plaintiff appealed these conclusions.

The Defendants maintained there was no sustainable claim, noting the Plaintiff could still seek to re-open the settlement. The court suggested a stay of proceedings with an indemnity offer from the Defendants to cover costs of re-opening the settlement, which was eventually agreed upon by the parties.

Legal Issues Presented

1. Whether the Plaintiff’s professional negligence claim should be struck out due to inconsistent pleadings regarding the Plaintiff’s capacity to settle the personal injury claim.
2. Whether the Plaintiff was required to plead affirmatively that she lacked capacity at the time of settlement to sustain a claim for negligent under-settlement.
3. Whether the Plaintiff had suffered loss given the possibility of re-opening the settlement due to incapacity.
4. The appropriate procedural approach to the claim pending resolution of the Plaintiff’s capacity and potential re-opening of the settlement.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff did not plead that she lacked capacity in 2011 but contended the Defendants ought to have investigated her capacity before settlement.
• The Plaintiff relied on a neuropsychologist’s opinion suggesting probable incapacity in 2011 but did not affirmatively plead incapacity.
• It was unjust to require the Plaintiff to litigate with the Driver to re-open the settlement without indemnity from the Defendants, who caused the difficulties.
• The Plaintiff declined to accept the Defendants’ offer to seek to re-open the settlement without a court judgment reinstating the proceedings and costs being paid.

Respondents' Arguments

• The Defendants supported the judge’s reasoning that the pleadings were inconsistent and no sustainable claim was pleaded.
• They argued the Plaintiff had not suffered loss of the chance to recover more damages because it remained open to re-open the settlement.
• The Defendants noted this would be the first known case allowing a professional negligence claim to proceed under these circumstances.
• They highlighted that the question of the Plaintiff’s capacity at the time of settlement should be decided before these proceedings conclude.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the pleadings concerning the Plaintiff’s capacity at the time of settlement and the status of the settlement agreement. The judge below had found that the pleadings contained mutually inconsistent averments, simultaneously asserting that the settlement was void due to incapacity and that it was valid because the Plaintiff had capacity, rendering the claim technically embarrassing and unsustainable.

The court rejected the argument that the Plaintiff was obliged to plead affirmatively that she lacked capacity to sustain her claim. It recognized the complexity and uncertainty surrounding the Plaintiff’s capacity, noting the Defendants had contested this fact with evidence. The court emphasized that the Plaintiff was entitled to plead uncertainty regarding capacity and to allege that the Defendants negligently failed to investigate her capacity before settlement.

The court further held that even if the Plaintiff lacked capacity at the time, this did not negate all allegations of negligence or the possibility of loss. The Plaintiff lost the opportunity to obtain a higher settlement in 2011, and the settlement entered into may be difficult and costly to re-open due to the Defendants’ alleged breaches. This loss was distinct from the theoretical ability to re-open the settlement later.

The court agreed with the District Judge’s initial assessment that there was a genuine and serious dispute as to whether the Plaintiff suffered economic loss due to the Defendants’ negligence. It found that the judge below erred in striking out the claim and that the claim was sustainable on the pleadings as drafted, except for the single allegation concerning failure to investigate capacity, which if deleted would leave a valid claim.

Consequently, the court restored the District Judge’s decision to dismiss the Defendants’ strike out applications and endorsed the agreed stay and indemnity arrangements to allow the Plaintiff to attempt to re-open the settlement.

Holding and Implications

Holding: The appeals are allowed, the strike out order is set aside, and the Plaintiff’s professional negligence claim is reinstated. The proceedings are stayed on agreed terms pending the outcome of the Plaintiff’s application to re-open the settlement. The Defendants are ordered to pay the Plaintiff’s costs of the appeals.

Implications: The decision clarifies that a claimant is not required to plead affirmatively incapacity to litigate to maintain a professional negligence claim based on negligent advice about settlement. It recognizes the complexity of capacity issues and permits claims to proceed where pleadings reflect uncertainty on capacity, provided other negligence allegations remain. The ruling emphasizes procedural fairness by endorsing a stay with indemnity to allow resolution of the underlying settlement capacity issue before further litigation. No new precedent was established beyond the application of existing principles to the facts of this case.