High Court finds KC’s drafting choices were reasonable judgment calls
The High Court has dismissed a negligence action brought against a KC over the way he drafted particulars of claim in a professional negligence case concerning a £4.8m overage dispute. Mr Justice Rajah granted summary judgment to Benjamin Pilling KC, finding that the drafting decisions challenged by the claimant were reasonable judgment calls open to many barristers of similar experience.
The claim arose from litigation pursued by Powis Street Estates (No3) Ltd against central London firm Wallace and property agents Cradick Retail. Powis alleged that an overage clause in a property sale had been drafted in a way that limited the period to five years without imposing any obligation on the developer to complete works or sell units within that time. Because the sales occurred after the five-year period, Powis said it lost £4.8m in overage payments.
To explore a potential negligence action, Powis instructed Winston & Strawn’s London office and Mr Pilling. The claim was issued in August 2017. The particulars, as drafted by Mr Pilling, focused on an allegation that Wallace had included the five-year time limit without instructions. At that stage, Powis’ own verified belief was that it had not authorised the inclusion of the time limit, and Winston & Strawn’s internal analysis supported that understanding.
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In November 2018, Forsters replaced Winston & Strawn. The solicitor then acting for Powis, Jonathan Ross, expressed concern that the claim had not focused on what he considered to be the “real failure”: the absence of a provision requiring reasonable endeavours to complete works and sell units within the five-year period. Powis subsequently instructed new leading counsel, David Halpern KC, and applied in July 2019 to amend the particulars of claim. Some amendments were allowed, but not all. Powis later alleged that the amendments refused represented claims that Mr Pilling should have included originally.
The underlying litigation settled in April 2023, with Wallace paying £1.05m and Cradick £740,000, in addition to a previous £125,000 payment. Powis argued that, had the claims later advanced by Mr Halpern been part of the original pleading, Cradick would have settled for at least £3.6m and paid an additional £565,000 in costs.
The court rejected that argument. Rajah J held that at the time Mr Pilling drafted the particulars, Powis’ instructions and its statement of truth indicated that it had not authorised inclusion of the overage period. The judge said there was “ample material upon which a competent barrister could conclude that there was a good prospect of establishing at trial” that no such instructions had been given. He noted that Powis’ replacement team, including new leading counsel, continued to advance that case until settlement.
Rajah J concluded that Powis had no realistic prospect of proving that all other competent barristers of Mr Pilling’s seniority and experience would have concluded that Powis must have given instructions contrary to those explicitly provided. He observed: “This is plainly a judgement call and the course taken by Mr Pilling was one which many barristers would have chosen.”
The judge also addressed Powis’ criticism that the original pleading did not sufficiently pursue a failure to include a “best endeavours” clause. He noted that Mr Pilling had been “clearly alive” to the potential claims against both Wallace and Cradick, as related allegations appeared in the particulars. Whether to plead concurrent claims of the sort later advanced was, Rajah J said, a strategic decision requiring professional judgment.
The claim against Mr Pilling was therefore dismissed on summary judgment. Powis is also pursuing a separate action against Winston & Strawn, which did not seek summary judgment.