Appeal by the claimant in a solicitor’s negligence action against the dismissal of her claim on liability. The central issue in this appeal is whether the solicitor’s duties were limited to the extent that the defendant alleged and the judge has held.
King LJ said: ‘There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care.’
Jackson LJ summarised the relevant principles in assessing the scope of a solicitor’s duty of care: ‘(i) A solicitor’s contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake;
(ii) It is implicit in the solicitor’s retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out;
(iii) In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client;
(iv) In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told what he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client;
(v) The solicitor and the client may, by agreement, limit the duties which would otherwise form part of the solicitor’s retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.’
Jackson, Tomlinson, King LJJ
[2015] EWCA Civ 1152, [2015] WLR(D) 461, [2016] PNLR 14, [2016] Fam Law 167, [2015] WLR(D) 509, [2015] 6 Costs LR 1025, [2016] 1 FCR 584, [2016] 2 FLR 948, [2016] 1 WLR 1489
Bailii, WLRD
England and Wales
Cited by:
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Legal Professions
Updated: 01 November 2021; Ref: scu.554674