The Need to Be Clear: Percy v Merriman White and Professional Negligence

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.

In the recent case of Percy v Merriman White, the Court of Appeal considered the application of Section 1(4) of the Civil Liability (Contribution) Act 1978. It ruled that the focal point for the provision’s purpose was the liability of the party claiming contribution.

The Facts

The Claimant (“Mr Percy”) had been given negligently advised by his solicitors and barrister (“Merriman White & Mayall”), thereby leading to a reduction of £435,000 to his settlement for his original claim. The Claimant brought a professional negligence claim against them.

The Claimant subsequently settled the claim with his solicitors and discontinued his claim against the barrister. In light of the discontinuance, the solicitors sought a contribution in the settlement fee from the barrister under Section 1(4) of the 1978 Act.

The Claim

Under Section 1(4) of the Civil Liability (Contribution) Act 1978, a party who has settled may 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”. Relying on this provision, the solicitors sought to obtain a contribution from the barrister by attempting to establish his liability as well.

The Judgement

At first instance, the High Court held that the solicitors should be able to recover contribution in light of the fact that they had a cause of action against the barrister. On appeal, however, the Court of Appeal found otherwise. It held that the liability of the party seeking a contribution (the solicitors) is the only relevant matter under Section 1(4). Since neither the Defendant (the solicitors) nor the Claimant (Mr Percy) had mentioned any instance of the barrister’s negligence in their pleadings, it would have been unreasonable and impossible to comment on any role the barrister’s negligence may have played in the loss caused to the Claimant. The claim was dismissed.

The Need to Be Clear

Percy clarifies the law’s standing on contribution claims and the extent to which it may apply with regard to Section 1(4) of the 1978 Act. Most importantly, however, it shows the courts’ reluctance to allow a party to rely on another interpretation to recover contribution; a claim premised on incorrect interpretations cannot subsequently be amended.

The case does not affect the rights of parties originally affected by such negligence, however, it does highlight an important theme: the need to be absolutely clear when bringing a claim of professional negligence. Our expert legal team of leading Professional Negligence Solicitors & Barristers guide you through the applicable complexities relating to your professional negligence case, ensuring that you are able to successfully claim bring your claim in seeking recompense.

Download the Judgement

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