Clarity in Professional Negligence Cases: Percy v Merriman White

In the recent case Percy v Merriman White and Mayall, the Court of Appeal clarified what must be proved by a contribution claimant to succeed in their contribution claim. Addressing the Civil Liability (Contribution) Act 1978, the court held that the liability of the party claiming contribution is the main concern for the purposes of section 1(4), not the liability of the party against whom contribution is sought.

The Background

The Claimant (“Mr Percy”) brought a negligence claim against his solicitors and barrister (“Merriman White & Mayall”) after negligent advice resulted in the settlement for his original claim being reduced by £435,000. The Claimant settled his claim with his solicitors and discontinued his claim against the barrister. The solicitors subsequently sought a contribution from the barrister under Section 1(4) of the 1978 Act.

The Claim

Section 1(4) allows a party who has settled to recover a contribution “without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established”. The solicitors sought to rely on Section 1(4) to establish the barrister’s liability and obtain a contribution from him.

The Judgement

The High Court, at first instance, found that as the Claimant had a cause of action against the solicitors, the solicitors should be able to recover a contribution from the barrister. The barrister appealed and the Court of Appeal allowed the appeal. As regards Section 1(4), the Court found that only the liability of the party seeking the contribution is relevant. As neither Claimant nor Defendant included examples of the barrister’s alleged negligence in their pleadings, it was not possible to comment on what advice should have been given instead, or whether the advice caused the Claimant’s loss in the first place. Ultimately, the claim was dismissed.

The Importance of Clarity

This case clarifies the court’s position on precisely what needs to be proven by a contribution defendant when attempting to rely on Section 1(4) of the 1978 Act. It also demonstrates a reluctance on the court’s part to allow a contribution defendant to have another go at recovering a contribution when they have chosen to pursue the claim based on an incorrect interpretation of Section 1(4). 

Whilst Percy and the precedent it sets for contribution claim will not affect the recovering party’s total sum, it does emphasise the need to be absolutely clear in what you approach the court for. Our highly-qualified team of professional negligence solicitors and barristers walk you through the complex rules and regulations applicable to any professional negligence case you may have, ensuring that you are able to successfully bring your negligence claim without having to worry about anything being looked over. 

Download the Judgement

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