Hypothetical question

Cohen v Kingsley Napley (a firm) and another CA LSG 2 March

The claimant instructed the defendant solicitors in relation to proceedings brought against her by architects to recover their fees. Her counterclaim had been struck out as an abuse of process because of her failure to pursue it. She subsequently alleged negligence against the defendants in the conduct of her counterclaim six years before she issued proceedings against them. She submitted that if a step in the action had been taken before expiry of the limitation, there was a real prospect that the architects would not have applied to strike out the counterclaim for want of prosecution. Accordingly, the court had to confront the hypothetical question as to whether the architects would have applied to strike out. On the material before the court it was arguable that, if a factual analysis were to be undertaken, it might be established that the architects would not have applied to strike out if notice of intention to proceed had been given in November 1996. There was material from which it could be inferred that the architects would not then have applied to strike out, since, for example, they had indicated a wish to preserve their claim at the end of 1995 and there was nothing to suggest any change of attitude in the course of 1996, and when notice of intention to proceed had been given, they had not immediately applied to strike out. Accordingly, the claimant’s appeal against the judgment obtained by the defendant solicitors was allowed.