Professional negligence – Solicitor – Duty of care – Claimant bringing action against defendant firm of solicitors alleging breach of duty to advise on issue of proceedings against third party architects, stonework specialist and chartered surveyors – Preliminary issue arising whether defendant being under duty to advise claimant to issue proceedings against third parties between specified dates – Claim dismissed
The claimant purchased a bungalow on a site in Church Hampton, Northamptonshire, with a view to demolishing the property and redeveloping the site to provide two separate dwellings. Work on the first property was completed without any problems. However, work on the second property ran into difficulties and the walls suffered extensive frost damage.
The claimant brought an action against the defendant solicitors alleging that they had failed to prepare and issue proceedings against three entities: a firm of architects, a stonework specialist and a firm of chartered surveyors. He complained that, had he been advised to issue proceedings against those third parties, he would have done so within the limitation period and would have been able to recover some or all of his losses allegedly arising out of the defective work and totalling over £1m.
A preliminary issue arose as to whether the defendant had been under a duty to advise the claimant to issue proceedings against any or all of the third parties. For purposes of the preliminary issue only, it was assumed that the claimant had causes of action against the third parties as at November 2007 but, by reason of the expiry of the limitation period, those causes of action became statute barred shortly after May 2008. The defendant had originally been instructed by the claimant in January 2005 but ceased to act in May 2008 by reason of a conflict of interest. However, the preliminary issue was only concerned with the period from November 2007, since that was six years prior to the issue of the proceedings.
Held: The claim was dismissed
A solicitor’s duty to his client was primarily contractual and its scope depended on the express and implied terms of his retainer. The key implied term of a solicitor’s retainer was to exercise reasonable skill and care. The scope of that duty would depend on the content of the solicitor’s instructions and on the particular circumstances. One of the relevant circumstances was the nature of the client. Thus, a youthful client unversed in business affairs might well need more explanation and advice when entering into a commercial transaction than an experienced businessman. However, it could not be assumed that an intelligent layman would spot points that would be obvious to a lawyer. A solicitor was not under a general obligation to expend time and effort on issues outside his retainer. However, if in the course of doing that for which he was retained, he became aware of a risk or potential risk to his client, it was his duty to inform his client of it: Mason v Mills & Reeve [2011] EWHC 410 (Ch) applied.
The court had had considerable difficulty in analysing the claimant’s case in terms of the law. It was accepted that no express instructions had been given by the claimant to issue proceedings against the third parties. Thus the duty to found the obligation on the defendant to give the advice was said to be implied. The nature and extent of that implied duty could only be gathered from the terms of business and the course of events. Whilst the description of the retainer was very wide, it did not impose on the defendant an express or implied duty to consider and advise upon every matter which the claimant from time to time referred to in his emails sent or copied to the defendant which might be said to relate to the construction dispute. The fact that the claimant had expressed a view about the various possible claims to the defendant did not give rise to an implied duty to consider that opinion or the wisdom or otherwise of commencing proceedings. The claimant had floated a large number of possible claims in his various communications because he was disorganised and lacked focus. Whilst that was a characteristic of the claimant, which should have been taken into account when the defendant gave its advice, it could not have required the defendant to consider and advise upon all those matters unbidden.
It was not a concomitant duty of the duty alleged to consider the merits of potential claims. That was a separate exercise, which would require express instructions from the client, a fact of which, on the evidence, the claimant had been well aware.
In so far as the defendant came under a duty to inform or warn the claimant of risks or potential risks or bring to his attention matters of importance, that duty had been discharged. Moreover, the importance of limitation had been set out in an exchange of emails. In all the circumstances, the defendant was not under a duty between the relevant dates to advise the claimant to issue proceedings against any or all of the third parties. Accordingly, his action failed.
Allen Dyer (instructed by Direct Access) appeared for the claimant; Rupert Higgins (instructed by Reynolds Colman Bradley LLP) appeared for the defendant.
Eileen O’Grady, barrister
