Moy v Pettman Smith (a Firm) - [2005] UKHL 7

HOUSE OF LORDS

SESSION 2004–05
[2005] UKHL 7

on appeal from: [2002] EWCA Civ 875

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

Moy v. Pettmann Smith (a firm) (Original Respondents and Cross-appellants) and another (Original Appellant and Cross-respondent) ON THURSDAY 3 FEBRUARY 2005 The Appellate Committee comprised: Lord Nicholls of Birkenhead Lord Hope of Craighead Baroness Hale of Richmond Lord Carswell Lord Brown of Eaton-under-Heywood HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Moy v. Pettmann Smith (a firm) (Original Respondents and Cross- appellants) and another (Original Appellant and Cross-respondent) [2005] UKHL 7 LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell. For the reasons they give, with which I agree, I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. I agree with it and for the reasons that he has given I too would allow the appeal. I should like to add these comments.

Competency of the appeal

3. Section 1(5) of the Civil Liability (Contribution) Act 1978 refers to a judgment in any part of the United Kingdom. The phrase “in any part of the United Kingdom” did not appear in clause 3(7) of the draft Civil Liability Contribution Bill which was annexed to the Law Commission’s report, Law of Contract, Report on Contribution (9 March 1977, No. 79). The Law Commission concentrated on the position in England and Wales. It recommended that, for the purposes of contribution proceedings in this jurisdiction, neither party should be allowed to challenge a finding of non-liability made in favour of the other in an action brought against the other by the plaintiff, provided that the finding was made after a trial on the merits: para 81(g). It did not discuss the possibility that the finding which was not to be challenged was one that had been obtained from a court in another part of the United Kingdom. But reference is made in para 65, footnote 89, to another matter drawn to its attention by a working party of the Scottish Law Commission which was not unrelated to this issue. This indicates that, in accordance with normal practice and as was to be expected, the two Law Commissions were in touch with each other during the preparation of this report.

4. We do not know what led to the change of wording which led to

the formula that now appears in section 1(5) of the 1978 Act. But the intention appears to have been to remove the possibility of any doubt on this point by providing expressly that no distinction was to be drawn for its purposes between judgments obtained under any of the United Kingdom’s legal systems. The way in which this was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] UKHL 7
Decision Date: 3 February 2005

CaseChat Overview and Summary

The House of Lords heard an appeal from the Court of Appeal against a decision of the High Court that a barrister, Miss Perry, was not liable for negligence in giving advice to her client, Mr Moy, in a personal injury case. The Court of Appeal had held that Miss Perry had been negligent in the advice she gave, and that she should bear a proportion of the damages paid to Mr Moy. The House of Lords allowed the appeal, holding that Miss Perry had not been negligent. The House held that the advice which Miss Perry gave fell within the range of advice which a reasonably competent counsel of her seniority and experience would have given, and that it was not necessary for her to give a full explanation of her reasons to Mr Moy. The House also held that section 1(5) of the Civil Liability (Contribution) Act 1978 did not prevent Miss Perry from being liable in the proceedings, as the section was not intended to bar an appeal in the circumstances of the case. The House allowed the appeal, restored the order of the High Court, and made an order as to costs.

Orders