By John Coorey and Victoria Huntington -
- Lawyers should not advise that a client has good prospects of success in litigation without considering the measure of damages if the client succeeds
- The English Court of Appeal says advice that a client has a 70 per cent chance of success means a case is all but unloseable. Query whether such an approach is uncommercial
- Where the lawyer encourages the client to bring litigation, and the client is unsuccessful, the defendant lawyer may bear the onus of proof in showing that the client would have proceeded with litigation notwithstanding the advice, rather than on the client to show it would not have done so
The English Court of Appeal decision in Levicom International Holdings BV & Anor v Linklaters [2010] EWCA Civ 494 identifies the standard it expects from the profession when advising clients that they have a strong case to pursue litigation rather than to settle early. The case highlights the importance of ensuring that advice does not overstate the client’s legal position and the dangers for solicitors who get that wrong.
