To Settle or Not to Settle...

Although litigators are usually much better at making attendance notes than their corporate counterparts, it is less common to make attendance notes of successful settlement discussions. This can mean, however, that the solicitor is exposed to liability if the client changes their mind.

In Fraser v Bolt Burdon (2009), one case in a series relating to the settlement of litigation, the High Court considered whether solicitors had been right to advise their client to accept a settlement offer, at the door of the court, of £200,000 plus costs in relation to a claim said to be worth between £15,000 and £1.4 million.

The facts of the dispute stretch back 30 years. Miss Fraser made a medical negligence claim against the health authority which ran St Bartholomew's Hospital ("St Bart's") in relation to the withdrawal of prescriptions of various drugs, in 1982, alleging that the abrupt withdrawal of the drugs caused her serious psychological disturbances.

In 1985, Miss Fraser retained Parlett Kent ("PK") in relation to her claim against St Bart's. However, due to PK's negligence in issuing the writ, St Bart's successfully defended the claim on limitation grounds.

Miss Fraser subsequently commenced proceedings against PK for their failure to commence proceedings against St Bart's in time, retaining Bolt Burdon ("BB"). In the context of the claim against St Bart's, Miss Fraser received advice from counsel that the likely value of the claim against St Bart's was around £15,000. Notwithstanding this, and the fact that loss of chance principles applied to her claim against PK, Miss Fraser claimed that her inability to pursue the claim had caused her losses of almost £400,000, later revised to more than £1.4 million, including damages for psychiatric injury caused by the loss of the claim against St Bart's.

PK admitted liability but disputed causation and loss. Various settlement offers were made, but none was accepted until the morning of the first day of the trial when PK offered £200,000 plus costs. On the advice of BB and the barristers instructed, Miss Fraser accepted that offer. However, she later commenced proceedings against BB, who added the barristers as third parties, in which she claimed the settlement was lower than any reasonably competent solicitor could have advised accepting, also alleging that BB had put her under undue pressure to accept the offer.

HHJ Seymour QC set out in detail the standard of care to be expected of solicitors and...