BL-2025-000402 - [2025] EWHC 2974 (Ch)

Mr Pilling’s decision to plead a claim that Wallace had no instructions from Powis in relation to an overage clause was ultimately an exercise by him of his judgment as to what his client’s best case was at the time of the pleading. It is impossible to list the factors which go into the exercise of that judgment, but examples are his client’s instructions, what the evidence at trial might show and strategic or tactical considerations as how to achieve Powis’ objectives.

The pleaded case of negligence against Mr Pilling does not identify what Mr Pilling is said to have done wrong other than to assert that on the information available to him he should have appreciated that the Relevant Claims against Cradick were better claims than the ones pleaded. It is not explained why. Nothing is pleaded as to why any other silk of similar standing would have appreciated this. This does not seem to me to be an adequately particularised plea of negligence against Mr Pilling.

Mr Grant, in his oral submissions, took me to the documents and evidence upon which he relied and said that any defect in the particularisation of the pleadings against Mr Pilling could be rectified.

Mr Grant’s primary point is that on the information which Mr Pilling had before 19 April 2018 he should have realised that Powis was wrong in its contention that Powis had not given instructions to Wallace via Cradick for the overage period. If Powis had given instructions to Wallace via Cradick then the better claims would (he said) have been against Cradick not Wallace and the claims pleaded in para 37.2.2 of the Underlying PoC were too limited. I observe that it has not been established by a court or conceded by Powis that Powis did give such instructions. Indeed, Powis continued to maintain that it did not give such instructions and that was at the forefront of its case in the Underlying Claim with its new legal team from July 2019 until the case settled on 23 April 2023. When witness statements were exchanged in January 2023, Mr Khalastchi continued to maintain that there had been no discussion at all between Powis and either Wallace or Cradick in relation to the Overage Period.

Nevertheless, Mr Grant says that any competent barrister would have realised that Powis must have given instructions to Wallace. He points to the inherent unlikeliness of professionals like Cradick and Wallace acting without instructions and to the absence of any surprise on the part of Powis to the reference to the Overage Period in the 7 July 2011 letter from Wallace. He refers to one of the Questionnaires, which was prepared by Mr Barnett who (while saying he had no recollection) assumed that Powis would have been consulted about inserting the Overage Period in the Dagmar Contract. He also relies on the Kennedys LoR which made the general statement that Cradick did not give instructions on behalf of clients in relation to material matters without authority for them and that the Overage Period must have been prompted by an objection from Dagmar.

This is looking at the weight of the evidence as at 19 April 2018 through the wrong end of a telescope. The instructions of Powis, and Powis’ belief as verified by the Statement of Truth on the Particulars of Claim, was that it had not authorised the inclusion of the Overage Period. The detailed analysis of W&S had concluded, having reviewed all the evidence, including the documents referred to by Mr Grant, that it appeared that Wallace had acted without authority. There were no documents at all (as one might expect to see) showing how Wallace had come to introduce the Overage Period, which was not mentioned in the Heads of Terms, into the Dagmar Contract. There were no documents (as one might expect to see) showing discussion of the introduction of the Overage Period internally within Wallace, between Wallace and Dagmar or between Wallace and Cradick. Wallace had asserted that the instructions from Cradick were supposedly given orally in a telephone call between Ms Boot and Mr Cradick, but no attendance note (as one would expect to see) and no other evidence had been produced to show that such a call had taken place. Mr Cradick made no mention of the call in his the Kennedys LoR and clearly had no specific recollection of what had happened. None of the Powis representatives (including Mr Barnett, and perhaps more significantly Mr Khalastchi who was Cradick’s principal point of contact) had any recollection of discussions about the Overage Period and most said that if it had been brought to their attention they would have reacted differently.

There was ample material upon which a competent barrister could conclude that there was a good prospect of establishing at trial that Powis had not given instructions for the overage period and indeed Powis’ replacement legal team, including leading counsel, continued to maintain that case to a successful settlement. There is no realistic prospect of establishing that all other competent barristers of Mr Pilling’s seniority and experience would have concluded that, contrary to their instructions, Powis must have given instructions to Wallace via Cradick. It is likely that the reverse is true - that no competent barrister of Mr Pilling’s seniority and experience would have concluded that, contrary to their instructions, Powis must have given instructions to Wallace via Cradick – but Mr Pilling does not need to meet that threshold.

Mr Grant’s fallback point is that Mr Pilling should in any event have pleaded the Relevant Claims against Cradick as “the best claims”. In one sense they are arguably “better” claims than those pleaded in paragraph 37.2.2 of the Underlying PoC because they are not as limited. However, the claims against Cradick cannot be regarded in isolation.

The structure of paragraph 37 of the Underlying PoC makes clear that the primary target was Wallace, and this was in accordance with Mr Pilling’s advice in consultation to Powis that the claim against Wallace was the best claim. It has not been suggested that this was negligent advice which is perhaps unsurprising as Wallace drafted the Dagmar Contract.

Mr Pilling was clearly alive to the potential claims against Wallace and Cradick relating to the failure to include a best endeavours clause or to secure that the overage period ran from completion rather than exchange of contracts. This is because he pleaded those issues as compounding Wallace’s negligence for acting without instructions – paragraph 37 of the Underlying PoC. It was possible to include a concurrent claim against Cradick along the lines of the Relevant Claims. Such a claim did not need to be conditional on a court determining that, contrary to its case, Powis had in fact given instructions to Wallace to include the Overage Period.

Whether to plead such a concurrent case arises regularly in cases, and requires an exercise of judgment. In this case, such an exercise of judgment required the pleader to weigh up strategic issues – such as whether pleading a concurrent case showed a lack of confidence in the claim against Wallace and weakened the prospects of settlement by Wallace. Or whether it was a tactical mistake which permitted Wallace to deny liability and maintain that Powis should sue Cradick. Or whether it shifted the litigation and costs burden of pursuing Cradick from Wallace, by way of a claim for contribution and indemnity, unto Powis.

Mr Grant was unable to explain why all other competent barristers in Mr Pilling’s position would have weighed up all the considerations and concluded that a more fulsome concurrent claim should be brought against Cradick. This is plainly a judgement call and the course taken by Mr Pilling was one which many barristers would have chosen. There is no realistic prospect of showing that no other competent barrister of his seniority and experience would have made a similar decision.