Unpicking mutual irresponsibility

Are there legal restraints on 'firmly-expressed' advice?

Image by Alex from Pixabay

I have been trying to put the finishing touches to the Hamlyn lectures so I can send them off to the publishers and have, in the shadow of my beloved Newcastle’s demolition of Liverpool, been pondering Lord Grabiner* more than is healthy.

For those of you who do not know, Lord Grabiner advised and represented Post Office Ltd (POL) in a bid to have Mr Justice Fraser recused from the Bates case. POL were concerned about losing all ends up apparent bias in 2019. Both he and Lord Neuberger had advised such an application had reasonable prospects of success.

Their lordships maintained to the PO Inquiry that their advice was proper and correct.

The main point of weakness focused on by the Inquiry was the suggestion that Lord Grabiner advised the board in ways that suggested, it was alleged, have a duty to try to recuse the judge in Bates. They did not have a duty and Grabiner tells the Inquiry he didn’t say they had a legal duty (as a note of a meeting suggested was the understanding). It was, ‘a piece of advice given by a lawyer to a Board of directors as to how he thinks, as the adviser, they should proceed, and it was firmly expressed.’ In Grabiner’s favour is the point that the Board decided by a vote to proceed with the recusal application suggests the Board perceived they had at least some choice.

POL’s final submissions to the Inquiry though said, ‘when presented with the clear advice of two such eminent barristers (one the ex-President of the Supreme Court), realistically it would be unfair to criticise POL for accepting it.’

So we have here an almost example of what I call mutual responsibility. The lawyers says I merely advised, and the client says I simply followed advice. If the lins of Lord Grabiner and the Post Office are accepted, neither can be criticised. Neither can be helped responsible.

Anyway, I have been digging a little further into the law supposedly restraining lawyers when giving advice for the book; in particular, the law as described in this blog from Gordon Exall.

This suggests advice from a lawyer needs to be clear about forseeable risks that the client does not appreciate. There is a duty on solicitors (and the same must apply to barristers I think) to advise (lay) clients of the risks of their own advice being wrong (citing Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson [2002] PNLR 300)). And in Hermann v Withers LLP [2012] PNLR 28, where the solicitors’ gave an opinion on the merits which was not negligent they ‘should [nonetheless] have appreciated, and should have advised, that the correct legal answer was open to significant argument. They should not have advised in unequivocal terms but should have warned of the existence of the contrary arguments.’

Grabiner’s advice, at least as represented in the Inquiry, looks pretty unequivocal.

In Thomas -v- Albutt [2015] EWHC, Morgan J states,

‘It is the duty of the solicitor to state not only his opinion as to the correct construction but he will also normally be expected to point out, where appropriate, that there are arguments to the contrary and what the consequences are of his opinion not being upheld.’

And in Levicom International Holdings BV v Linklaters [2010] PNLR 29, a case based on advice being too optimistic or even wrong, Burnton LJ held, ‘the solicitors could not sensibly have advised that the meaning of the document was “clear” and they ought to have given a balanced view of the rival arguments particularly in the context of potential arbitration proceedings.’

Whether this would be sufficient to mount a claim against Lord Grabiner for negligence, I do not know. In Thomas -v- Albutt [2015] EWHC, the judge held solicitors were not negligent in failing to advise of litigation risks because they were acting for solicitor clients who would have appreciated the risks without the need for more advice on it. POL had their own in-house lawyers, so this might offset concerns that the Board did not properly understand the risks on which Lord Grabiner was called in to independently advise. Or it might not.

What Gordon’s blog suggests is that, of course, advice can be firmly expressed, but it also has to be clear about the risks, and an assessment of merits has to be within the range that is capable of sensibly being given. The question for the Grabiner example is whether the level of firmness inappropriately discounted the risks of bringing the application.

For some reason, that reminds me of a completely different advice. Nothing to do with the Post Office. Made the papers. Answers on a post card…

………

Postscript courtesy of Graeme Johnston on done of the detail of what the evidence suggests on, "...the suggestion that Lord Grabiner advised the board in ways that suggested, it was alleged, have a duty to try to recuse the judge..."

It's been noted in many judgments that contemporaneous docs are typically the most reliable indicator. In this case, the docs are undisputed and the gist is clear. From Lord G's statement:

Para 9: 'I am asked whether I advised that there was "a duty on Post Office to seek recusal" and, if so, to explain the basis of that advice. I confirm that I gave that advice: it is accurately recorded...'

Para 10: '... Lord Neuberger (prior to my involvement)... had already advised that "the PO has little option but to seek to get the Judge to recuse himself at this stage."... I agreed with it and, independently, reached the same conclusion...'

Para 12: 'It was my view, based on everything I had read and what I had heard from the counsel team and from Lord Neuberger, that PO realistically had no choice but to invite Fraser J. to recuse himself...'

And in particular:

Para 20: '....My reply timed 11.27, and Lord Neuberger's response timed 14.38, which ends the chain, says: "We've been instructed to proceed. I don't think the clients had any choice but they were reluctant to take such a serious step".'

Also, Lord Arbuthnot has pointed out to me in the other place (okay, its LinkedIn) that arguments similar to these could be made about Lord Neuberger’s advice. We know rather less about his advice, not least because the Inquiry, regrettably in my view, did not call him.

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*I thought that I had read somewhere that Lord Grabiner is a Liverpool fan but it may be I have simply mixed that up with his representation of them.