A solicitor who takes instructions from his client embarks on a three-stage process. First, the solicitor must obtain information from the client about the transaction or case that he is being instructed to handle. Once the solicitor has done so, he can then provide the requisite advice. This will enable the client to decide how he wishes to proceed and to instruct him.
The extent of a solicitor’s duty to explain matters to a client takes account of the client’s own experience: Yager v Fishman & Co [1944] 1 All ER 552 and Carradine Properties v DJ Freeman & Co [1999] Lloyd’s Rep PN 48. Practitioners need not explain things that should be obvious to a person with the client’s experience or background. However, an inexperienced client, or one dealing in matters with which he is unfamiliar, may require more explanation to enable him to understand points that it would be pointless or impertinent to explain to a client with more experience.
Kandola v Mirza Solicitors LLP [2015] EWHC 460 (Ch; [2015] PLSCS 70 provided us with an example of the operation of these rules in the case of an experienced businessman and property investor. Procter v Raleys Solicitors [2015] EWCA Civ 400 lies at the other end of the spectrum. It is not a property law case, but the Court of Appeal’s comments are relevant to professional advisers in general.
The claimant was a miner, who suffered from vibration white finger and settled a claim under a tariff-based compensation scheme set up by the Department for Trade and Industry. The lawyers who represented him had developed a system involving very little personal contact with clients, which enabled them to deal with a high number of claims at limited cost. They obtained information from clients through a questionnaire, their advice was given in standard letters and their instructions were obtained via a tick box form. Had they been negligent because they failed to see the claimant or to speak with him on the telephone to ensure that he fully understood all the advice contained in their letters, before he agreed to settle his claim?
The Court of Appeal accepted that what, in any given case, solicitors should do in order to ensure that their advice is understood is a question of fact and degree. It noted the difficulties that lawyers face where financial constraints require them to “commoditise” their advice. However, this means that clear standard form letters of advice are needed – especially if a law firm is dealing with clients who can fairly be regarded as unsophisticated in the relevant field.
The written advice given to the claimant was insufficiently clear. There was no evidence that the lawyers’ standard letters had been amended to deal specifically with their client’s circumstances and there had been indications that he may have misunderstood some of the advice given. Consequently, the law firm should have spoken to their client, preferably face to face, but if necessary over the telephone, to ensure that he had understood their advice, before they followed his instructions to settle his claim.
Allyson Colby is a property law consultant