A Second Bite Of The Cherry?

Author:Mr Andrew Blair
Profession:Barlow Lyde & Gilbert LLP

In Taylor Walton v Laing (2007), covered in the Footnotes section of the last Lawyers' Liability briefing, the Court of Appeal struck out a solicitors' negligence claim on the grounds of abuse of process. The Court reached its conclusion on the basis that the negligence proceedings would be re-litigating the same issue considered by the court in the underlying dispute, and that all the arguments made by the claimant (including allegations of negligence against the solicitor) could have been made during the trial of that dispute or on appeal. In reaching this conclusion, the Court of Appeal clarified that simply bringing proceedings against a solicitor for negligence which allege matters that are different from those decided in the underlying dispute is not enough to bring the administration of justice into disrepute. For example, allegations of negligence during the course of litigation against solicitors will normally involve an attempt by a claimant to demonstrate that the previous conclusion of the court would have been different, absent negligence. Aldi Stores Ltd v WSP Group (2008) is another recent decision on abuse of process in the professional liability context, this time involving a complex, multi-party construction dispute. Here, the Court of Appeal refused to strike out an action against engineering and environmental consultants, rejecting the consultants' argument that the claim amounted to an abuse of process because the claimant could and should have claimed against the consultants in an earlier action against a contractor arising out of the same facts. The claimant had brought proceedings against the contractor in 2001, to which the contractor joined the consultants as Part 20 defendants ("the original construction action"). The claimant did not bring a direct claim against the consultants in the original construction action. Indeed, the claimant's quantum claim was treated separately from the Part 20 claim and a number of claims made by other parties against the contractor and consultants which were all being heard together. The claimant obtained judgment against the contractor for the whole of its claim, part of which was satisfied by an interim payment. Due to the insolvency of the contractor, the claimant then pursued its excess layer insurers for the remainder (the insurers having in the meantime pulled...

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