Mike Willis explains why barristers can keep their reasoning quiet

Last week the House of Lords issued a keenly awaited judgment that examined the duties of lawyers and other professionals.

In Moy v Pettman Smith [2005] solicitors were instructed by Moy to sue a health authority following treatment of his broken leg.

Due to a failure to obtain and serve a key medical report within time, Moy had to accept a reduced settlement offer from the health authority.

He then sued the solicitors and barrister.

At trial, the solicitors were held negligent for failing to obtain the necessary medical evidence in time, but counsel was acquitted of any negligence.

The Court of Appeal did not condemn counsel's reasoning, but found her negligent and apportioned her 25% of the liability.

Counsel appealed.
The Law Lords unanimously allowed the appeal, finding neither counsel's assessment of the position nor her advice negligent.

In doing so they gave clear direction on the extent to which barristers should explain their reasoning to clients and/or provide warnings of potential adverse consequences.

The Lords acknowledged that stricter and more developed standards apply for the medical profession - as upheld recently in Chester v Afshar [2004].

But the Lords said it would be too burdensome on the advocacy professions to require them to spell out their reasoning to clients.

' Mike Willis is a professional risks partner at Beachcroft Wansbroughs