A firm has failed in its appeal against the dismissal of its counterclaim after its evidence was found ‘not sufficiently compelling to justify’ allegations it was misled by a former client.

The Appeal before The Honourable Mrs Justice Dias sitting in the High Court of Justice, King’s Bench Divison considered whether the trial judge sitting at the Manchester Civil Justice Centre over four day trial,  erred in his finding [in] dismissing the Counterclaim about Harrison Boyce being misled by Abdul Shamaj, by his determination that the Accident being genuine whereas the Supreme Court in Perrys v Raleys Solicitors [2019] UKSC 5 required him to determine whether Claim was honest and the challenge is that the trial judge ought to have found that the Claimant misled the Appellant about the claim to damages being honest.

The issue at the Appeal was:

• Did the Recorder wrongly fail to draw a distinction between the genuineness of the accident and the honesty of the claim?
• Did his findings that aspects of the claim could not honestly have been pursued necessarily mean that Harrison Bryce succeeded in showing that it had been misled?

Mr Kamar Uddin  of 2 King’s Bench Walk on behalf of the Respondent to the Appeal, Mr Shamaj made the following points:

• Harrison Bryce’s case at trial was pleaded, presented and argued on the basis that the entire accident had been staged and not on the basis that only certain elements of the claim were dishonest.
• In any event the trial judge’s judgment makes clear that he was not focusing on the genuineness of the accident but specifically on whether Harrison Bryce had been misled in relation to Mr Shamaj’s claim for damages;
• His finding that there was insufficient evidence that Mr Shamaj misled Harrison Bryce was a finding of fact with which the court should not interfere.

The Honourable Mrs Justice Dias in her judgment handed down on 31^st October 2025 inter-alia delivered the following judgement:

• I agree with Mr Uddin. Lord Briggs’ comments on the burden of proof in Perry v Raleyswere made in the context of a claim by the claimant against his solicitors for professional negligence leading to the loss of a chance, i.e., equivalent to the claim brought by Mr Shamaj (Respondent) in these proceedings. It was in that context that the Supreme Court held that the claimant needed to demonstrate that his claim would have been honest in order to establish that he had lost a substantial chance of recovery.
• It was not incumbent on the defendant (Respondent) to prove the converse. However, the question of a counterclaim by the solicitors alleging that they had been dishonestly misled did not arise in that case and I do not read Lord Briggs’ comments as extending to that situation.
• In my judgment, the need for Mr Shamaj to prove that his claim could have been honestly pursued for the purpose of establishing the loss of a chance I conceptually and analytically distinct from an allegation by Harrison Bryce that it was deliberately misled. If it chooses to make such an allegation, it must prove it.
• The Appeal was therefore dismissed which sets precedent that:
• An appellate court should be reluctant to interfere with a trial judge’s findings of fact.
• The burden is on a solicitor who sues a client for his fees under a Conditional Fee agreement because of misleading instructions is to prove that any misleading was nonetheless deliberate.
• It would be procedurally unfair to determine a new point at an appeal hearing in absence of prior notice to the Respondent and a properly articulated application to make a late amendment to the Grounds of Appeal.
• The honesty or otherwise of the claim and the genuineness of the accident have nothing to with a contractual claim based on an entitlement to terminate the retainer.

https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/2826

Court upholds dismissal of firm’s counterclaim in negligence case | Law Gazette

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