Professional advisers have a duty to exercise reasonable care and skill when advising clients. The extent of their duties will depend on the terms of their retainer, the instructions given and the needs of the client.
Previous decisions confirm that if in the course of complying with a client’s instructions advisers become aware of a potential risk to that client they have a duty to warn it: Credit Lyonnais SA v Russell Jones & Walker [2002] EWHC 1310 Ch; [2002] 2 EGLR 65; [2002] 33 EG 99. In addition, if the advisers know what their clients want to achieve, but realise that compliance with instructions will not enable their clients to achieve their objectives, they must advise them accordingly.
Littlewood v Radford [2009] EWCA Civ 1024; [2009] PLSCS 280 concerned the extent of an adviser’s duty to warn a client that an important deadline was looming. Littlewood retained a surveyor to act for her in connection with the acquisition of an extended lease of her flat under the Leasehold Reform, Housing and Urban Development Act 1993. Following service of the requisite notices, Littlewood decided to take a “wait and see approach” to her claim, preferring to await receipt of the landlord’s valuation before deciding how to respond.
Tenants that seek to enfranchise have a window of opportunity in which to ask the leasehold valuation tribunal (LVT) to fix a price. No such application was made and the deadline passed. As a result, Littlewood lost her statutory rights and had to pay a higher price for an extended lease. She complained that her surveyor had failed to apply, or to advise her to apply, to the LVT to keep her claim alive.
The Court of Appeal accepted that professionals who give clear advice to clients about the need to take a particular step by a particular time are not under a duty to repeat themselves. The surveyor had advised Littlewood at an early stage about the need to apply to the LVT, and the deadlines involved.
The court ruled that the surveyor should have reminded Littlewood of the deadline because she was not an experienced professional and could have been expected to rely on him to remind her, when the time arose, that she needed to take appropriate procedural steps to protect her position. Solicitors have similar obligations. Howard & Witchell v Woodman Matthews & Co [1983] BCLC. 117 confirms that solicitors must advise clients of time limits and must also ensure, if deadlines are allowed to expire, that any omission to take appropriate steps to protect a claim is attributable to the client.
Littlewood also confirms that the duty to remind clients of deadlines is not extinguished by a client’s failure to pay a bill or, indeed, by instructions expressly limiting an adviser’s duties pending receipt of a response from, or positive action by, another party.
Allyson Colby is a property law consultant
