Solicitors Negligence Case law

April 5, 2025

Key Solicitor Negligence Cases: A Comprehensive Review

Introduction

At Carruthers Law, we act for clients across England and Wales who have suffered financial loss as a result of solicitor negligence. Claims of this kind are frequently complex, involving issues of duty, breach, causation and loss, and require meticulous legal analysis alongside strategic litigation experience.

This article reviews key recent decisions in solicitor negligence, illustrating the types of failures that can give rise to a viable claim—ranging from inadequate advice on litigation strategy and costs, to failure to pursue financial disclosure or protect a client’s interests in settlement.

If you believe you may have a claim against a solicitor for professional negligence, our specialist team can advise on your legal position and options. Call Carruthers Law on 0151 541 2040 or email us today for a confidential, no-obligation discussion.

Miller v Irwin Mitchell LLP [2024] EWCA Civ 53

Carol Miller, the claimant, suffered a severe injury while on holiday in Turkey on 4 May 2014. She slipped and fell down some stairs in her hotel, resulting in an open fracture of her leg. Despite undergoing emergency surgery in Turkey, she developed an infection upon her return to England, which eventually led to the amputation of her lower leg in November 2015.
Mrs Miller retained Irwin Mitchell LLP to represent her in a claim against the travel operator, Lowcostholidays Spain SLU (“Lowcost”). The retainer’s inception date was disputed, but the judge held that an implied retainer arose around 25 January 2016.

Original Decision by HHJ Cadwallader

HHJ Cadwallader dismissed Mrs Miller’s claim for damages for professional negligence against Irwin Mitchell LLP. The judge found that:

• No express or implied retainer was created when Mrs Miller contended, and she was only a potential client of Irwin Mitchell until 25 January 2016.
• No duty of care equivalent to that arising under a contractual retainer was owed to her until then.
• Irwin Mitchell had no duty to advise Mrs Miller to notify Lowcost of the accident or to remind Lowcost to notify its insurer before sending the letter of claim on 22 February 2016.

Grounds of Appeal

• Mrs Miller raised four grounds of appeal:
• The judge ought to have found that Irwin Mitchell owed her a common law duty of care or a contractual duty of care under an implied retainer from 19 May 2014 onwards.
• The judge ought to have found that Irwin Mitchell owed and breached an obligation from 19 May 2014 onwards to advise Mrs Miller to notify Lowcost or to notify Lowcost themselves about her accident.
• The judge erred in law in finding that the proper construction and effect of the excess clause within Lowcost’s policy with HCC meant that there was no prospect of the policy responding at any relevant time after Lowcost’s administration.
• The judge erred in finding there was a 0% chance that Lowcost’s policy would have responded had notice been given of Mrs Miller’s accident to HCC from and after 8 April 2015

Decision of the Court of Appeal and Its Reasonings

The Court of Appeal dismissed the appeal. Lady Justice Andrews, delivering the judgment, held that:

• Irwin Mitchell did not owe Mrs Miller a duty to advise her to notify Lowcost of the accident or to notify Lowcost themselves before the inception of the retainer on 25 January 2016.
• The advice given by Irwin Mitchell’s Legal Helpline on 19 May 2014 was general and preliminary, and it did not purport to be complete or comprehensive legal advice about her claim.
• The judge was right to find that Irwin Mitchell was under no obligation to advise Mrs Miller on 19 May 2014 to inform Lowcost of the accident or to do so themselves at any time before the inception of the retainer.

The Court of Appeal also addressed the construction of the excess clause within Lowcost’s insurance policy with HCC. The judge interpreted General Condition 4 as a “pay to be paid” clause, meaning Lowcost was contractually obliged to disburse claims totalling £553,234.22 out of its own pocket before HCC had any liability to indemnify it for any claims under the policy in excess of £10,000.

Forster v Reynolds Porter Chamberlain [2023] EWHC 1150 (Ch)

In the landmark case of Forster v Reynolds Porter Chamberlain, the High Court of Justice dealt with a professional negligence claim against the law firm Reynolds Porter Chamberlain LLP (RPC). This case highlights the critical importance of solicitors keeping their clients informed about litigation costs and managing conflicts of interest effectively.

Background of the Case

The claimant, Deborah Anne Forster, an inventor, was involved in complex litigation where she was defending a claim for fraudulent misrepresentation and pursuing relief under section 994 of the Companies Act 2006. The trial commenced on 30 March 2011 and was settled the following day with a Tomlin Order. This settlement included a compensation payment of £350,000 and 80% of her costs. However, only £50,000 was paid, and the claimants were subsequently declared bankrupt.
Ms Forster brought a claim against RPC, alleging that the firm had breached its duty of care when acting for her during the litigation and following the settlement. She contended that RPC’s failure to enforce the Tomlin Order promptly resulted in her losing the opportunity to recover more of the agreed sums.

Key Issues in the Case

• Conflicts of Interest: Ms Forster argued that RPC had conflicts of interest under the terms of the Conditional Fee Agreements (CFAs) and the Deacon Loan Agreement. She claimed that these conflicts were not managed properly, leading RPC to prefer their own and Mr Deacon’s interests over hers by delaying enforcement of the Tomlin Order.
• Costs Information: A significant issue in the case was the lack of information provided to Ms Forster about the high level of costs being incurred by RPC. She only became aware of the amount of costs through the After the Event (ATE) insurance proposal. Ms Forster argued that she was not kept updated on the increasing costs, which impacted the cost-effectiveness of continuing the case.
• Expert Witness Selection: Another point of contention was the replacement of Ms Forster’s chosen expert witness, Ms Cheung, with a partner from Deloitte. Ms Forster claimed that RPC did not adequately advise her on the benefits and disadvantages of this change, including the need to fund Deloitte’s disbursements.
• Deacon Funding Agreement: Ms Forster entered into a funding agreement with Mr Deacon without being properly advised on its terms and implications. She argued that RPC had a conflict of interest as they were advising both her and Mr Deacon.

The Court’s Decision

The court found that RPC had breached their duty of care in several ways:

• Failure to Inform About Costs: The court concluded that RPC failed to inform Ms Forster about the high level of costs being incurred. This lack of information prevented her from making informed decisions about the litigation. The CFA required RPC to give Ms Forster the best information possible about the likely costs of her claim and to advise her of any circumstances affecting the amount of costs to be incurred, the degree of risk involved, or the cost-effectiveness of continuing the case. The court found that RPC’s failure to do so was a breach of duty.
• Inadequate Advice on Expert Witness: The court found that RPC did not adequately advise Ms Forster on the selection of the expert witness, which impacted the effectiveness of her case. The court noted that Ms Forster should have been advised of the implications of this change and how a different expert witness might be funded. The court concluded that RPC’s failure to advise Ms Forster on the benefits and disadvantages of retaining Deloitte as an expert witness was a breach of duty.
• Improper Advice on Funding Agreement: The court determined that RPC failed to properly advise Ms Forster on the Deacon Funding Agreement, which created a conflict of interest. The court found that RPC had a clear conflict of interest in advising Ms Forster to borrow money from Mr Deacon and then advising and acting for Mr Deacon in preventing Ms Forster from enforcing the Tomlin Order. The court concluded that RPC’s failure to advise Ms Forster on the terms and potential effect of the Deacon Funding Agreement was a breach of duty.
• Failure to Enforce the Tomlin Order: The court found that RPC breached their duty by failing to enforce the terms of the Tomlin Order in accordance with Ms Forster’s instructions. The court noted that RPC declined to act in accordance with Ms Forster’s instructions and eventually used Mr Deacon’s rights to prevent Ms Forster from seeking to enforce the Tomlin Order. The court concluded that RPC’s failure to act on Ms Forster’s instructions to convert the Tomlin Order into an enforceable judgment and then enforce it was a breach of duty.

Causation and Loss

The court concluded that these breaches of duty caused Ms Forster to lose the chance to enforce the Tomlin Order and recover the agreed sums. The court assessed the value of the lost chance at £192,500, representing 55% of the £350,000 compensation.

Conclusion

The case of Forster v Reynolds Porter Chamberlain serves as a crucial reminder for solicitors to keep their clients informed about the costs of litigation and to manage conflicts of interest properly. The decision underscores the importance of transparency and effective communication in the solicitor-client relationship.

Lewis v Cunningtons Solicitors [2023] EWHC 822 (KB)

The case involves a professional negligence claim brought by Joanne Lewis against Cunnington Solicitors. The claim arises from the alleged negligence of the solicitors while acting on her behalf in relation to the financial settlement reached with her former husband, Paul Mayne, during their divorce. The events in question took place between 2012 and 2014. Mrs Lewis claimed that due to the solicitors’ negligence, she entered into an unfair settlement agreement, particularly failing to obtain a pension sharing order, resulting in a financial loss of approximately £500,000.
Claimant’s Arguments

Unfair Settlement: Mrs Lewis argued that the settlement she reached was obviously unfair, given the known value of Mr Mayne’s pension and the parties’ assets. She contended that the solicitors should have advised her to apply for a pension sharing order.

Vulnerability: She claimed that she was vulnerable at the time due to depression and stress, and that Mr Mayne had bullied and pressured her into settling at a significant undervalue.

Negligence: Mrs Lewis argued that the solicitors were negligent in failing to advise her properly and in not pursuing full financial disclosure.

Defendant’s Arguments

• Scope of Retainer: Cunnington Solicitors contended that their retainer was limited to implementing the consent order and that they fulfilled their duty within that scope.
• Advice Given: They argued that they had advised Mrs Lewis about the parties’ respective total capital and the possibility of a pension sharing order.
• Claimant’s Instructions: The solicitors claimed that Mrs Lewis had instructed them not to pursue full financial disclosure and had chosen to settle directly with Mr Mayne.
• Contributory Negligence: They also raised allegations of contributory negligence, arguing that some liability should fall on Mrs Lewis for any unfair outcome.

Analysis of the Parties’ Arguments

Scope of Duty: The court analysed the scope of the solicitors’ duty, considering the principles set out in key authorities such as Minkin v Landsberg and Carradine Properties Ltd v D. J. Freeman & Co. The court found that the solicitors’ duty was not limited to merely drafting the consent order but included advising Mrs Lewis on the fairness of the settlement. The court referred to the following principles:

• Minkin v Landsberg: Jackson LJ summarised that a solicitor’s contractual duty is to carry out the tasks instructed by the client and to proffer advice reasonably incidental to the work. The scope of this duty depends on the circumstances, including the client’s character and experience.
• Carradine Properties Ltd v D. J. Freeman & Co.: Donaldson LJ stated that a solicitor’s duty includes exercising reasonable skill and care in the client’s business. The scope of the duty depends on the retainer but also on the client’s need for advice.
• Credit Lyonnais v Russell Jones & Walker: Laddie J emphasised that a solicitor must inform the client of any risks or potential risks discovered during the course of the retainer.
  Midland Bank v Hett Stubbs & Kemp: Oliver J highlighted that the extent of a solicitor’s duties depends on the retainer’s terms and limits, and the duty of care must be related to what the solicitor is instructed to do.

Vulnerability and Advice:

The court found that Mrs Lewis was an unsophisticated and vulnerable client, and that the solicitors should have been aware of her vulnerability. The court concluded that the solicitors failed to provide clear advice on the likely outcome of pursuing a pension sharing order.

Contributory Negligence:

The court considered the principles of contributory negligence and found that it was not appropriate to attribute any contributory negligence to Mrs Lewis in this case.
Summary of the Court’s Conclusions

Breach of Duty:

The court concluded that Cunnington Solicitors breached their duty of care by failing to advise Mrs Lewis properly about the likely outcome of pursuing a pension sharing order and by requiring her to sign a disclaimer that limited their ability to advise her.

Causation:

The court found that if Mrs Lewis had been properly advised, she would have pursued a pension sharing order, which would have resulted in a significantly better financial outcome for her.

Quantum:

The court awarded Mrs Lewis £400,000 in damages, reflecting the likely value of a 50% pension sharing order, less the sum she received in the settlement and an allowance for costs.

Mackenzie v Rosenblatt [2023] EWHC 331 (Ch)

The case involves a professional negligence claim brought by Robert David Mackenzie (“BM”) against Rosenblatt Solicitors and Rosenblatt Limited (“the Defendants”). BM alleged that the Defendants acted negligently and in breach of duty in advising him about bringing and continuing a claim against The AA plc (“AA”), Automobile Association Developments Limited (“AAD”), and AA’s directors and company secretary (“the officer defendants”). BM was the chairman and chief executive of AA and was dismissed on 1 August 2017 for gross misconduct following an incident at a company event. BM claimed that the Defendants failed to properly advise him on the merits of his claim and the risks involved, leading to financial losses.

The incident that led to BM’s dismissal occurred at the Penny Hill Park Hotel in Surrey, where AA’s subsidiary, AA Insurance Services Ltd, was holding an executive “away day” event on 24 July 2017. BM, who appeared to be heavily intoxicated, assaulted another director of the company. The incident was captured on CCTV and lasted for about one minute. Following the incident, BM was suspended and then told that he was to be dismissed for gross misconduct. BM consulted employment specialists at Bird & Bird LLP on 28 July 2017, who advised him that AA probably had a case to dismiss him for gross misconduct and that he should resign first. BM signed a letter of resignation on the grounds of ill-health and this was sent to Mr Millar, the company secretary at AA, on 1 August 2017. AA did not accept the resignation and dismissed him, after BM refused an offer from AA to resign on terms that he left with nothing by way of compensation or reference.

The consequence of the dismissal for gross misconduct was that BM was characterised as a “bad leaver” under his service contract. As such, he was vulnerable to losing bonuses paid to him in previous years and shares held under a management value participation (“MVP”) scheme. These MVP shares had been granted to him and two other directors in 2014, as terms of the management buy-in of AA led by BM. They were potentially very valuable if AA’s share price reached specified levels in 2017, 2018, or 2019. BM’s son, Peter (“PM”), later told the Defendants that the potential value was between £80 million and £220 million, and this was reflected in the pleaded particulars of claim.

The dismissal was a disaster for BM, not only because of the loss of his career, income, bonuses, and shares, but because the events between 24 July 2017 and 1 August 2017 precipitated a mental health crisis. BM was hospitalised for more than three weeks in August 2017 and was in poor health for many months thereafter. He has still not fully recovered.

Following his hospitalisation, PM and Catie King (“CK”), his daughter, acted on behalf of BM to try to protect his interests. By 9 August 2017, a meeting had been held with Mr Ian Rosenblatt, the senior partner of the First Defendant firm at the time (“IR”). IR then became a consultant when his firm was listed as a professional services company on 11 May 2018. Apart from whether a breach of duty occurred before or after that date, nothing turns on the different retainers with the firm and the company, and I shall refer to “the Defendant” in the rest of this judgment.
Claimant’s Arguments:

BM argued that the Defendants were negligent in several respects:

• Failing to advise that the conspiracy claim against AA and its directors was weak and likely to fail.
• Failing to advise that the original strategy had been adversely affected by developments since August 2017.
• Failing to advise that the claim was at risk of being struck out or subject to summary judgment.
• Failing to inform BM of the provisional advice given by leading counsel, Adam Solomon QC, that there was a significant risk of the conspiracy claim being struck out.
• Misleading BM into entering a fixed fee agreement by falsely stating that they did not know the outcome of the strike out applications.

Defendants’ Arguments:

The Defendants contended that:

• They provided appropriate advice based on the information available at the time.
• The claim was properly arguable and supported by reasonable grounds.
• They regularly reviewed the matter and kept BM informed of the risks and developments.
• The fixed fee agreement was entered into voluntarily by BM, who was aware of the risks involved.
• Any losses incurred by BM were not caused by the Defendants’ alleged negligence.

Court’s Analysis of the Arguments and the Law

The court analysed the following key issues:

• Advice on the Merits of the Claim: The court found that the Defendants did not advise BM that he had a strong or good claim. However, they failed to advise that the conspiracy claim was weak and likely to fail before issuing the claim.
• Strategy and Developments: The court held that the Defendants should have advised BM that the original strategy had been adversely affected by developments since August 2017.
• Risk of Strike Out: The court concluded that the Defendants should have advised BM that the claim was at risk of being struck out or subject to summary judgment.
• Provisional Advice from Leading Counsel: The court found that the Defendants were in breach of duty by failing to inform BM of the provisional advice given by Adam Solomon QC.
• Fixed Fee Agreement: The court rejected the claim that the Defendants misled BM into entering the fixed fee agreement. The court found that the agreement was entered into voluntarily, and BM was aware of the risks involved.

Court’s Conclusions on the Issues raised

• The Defendants were in breach of duty and negligent in failing to advise BM that the conspiracy claim was weak, that the original strategy had been adversely affected, and that the claim was at risk of being struck out.
• The Defendants were also in breach of duty by failing to inform BM of the provisional advice from leading counsel.
  However, the court found that these breaches did not cause BM any loss, as he would have pursued the claim regardless of the advice given.
• The court dismissed the claim that the Defendants misled BM into entering the fixed fee agreement.
• The court ultimately dismissed BM’s claim and found that the Defendants were not liable for the losses alleged by BM.

Lambert Plant Ltd v Knights Solicitors [2022] EWHC 165 (QB)

Mervyn Lambert Plant Limited and Mervyn Lambert (the Claimants) brought a professional negligence claim against Knights Solicitors (the Defendant). The Claimants alleged that the Defendant provided negligent advice and breached their contract in relation to a judicial review challenge against a planning permission granted by South Norfolk Council (SNC) for a development at a site in Bressingham, Norfolk. The Claimants argued that the judicial review was “doomed from the outset” and that they would not have pursued it if they had been properly advised. They sought to recover the majority of the fees paid to the Defendant during the period of instruction.

Claimants’ Arguments
1. Negligence and Breach of Contract: The Claimants alleged that the Defendant failed to provide accurate advice on the prospects of success of the judicial review and did not convey counsel’s views adequately. They argued that the Defendant’s advice led them to pursue a judicial review that had no reasonable prospects of success.
2. Causation: The Claimants contended that if they had been properly advised, they would have ceased to instruct the Defendant and would not have incurred the legal fees associated with the judicial review.
3. Loss: The Claimants sought to recover the fees paid to the Defendant, arguing that the Defendant’s negligence and breach of contract caused them to suffer financial loss.
Defendant’s Arguments
1. No Negligence or Breach of Contract: The Defendant denied any negligence or breach of contract, arguing that they provided competent advice and that the judicial review had reasonable prospects of success. They also contended that they conveyed counsel’s views to the Claimants.
2. Causation and Loss: The Defendant argued that even if there was a breach of duty, the Claimants would have pursued the judicial review regardless, due to Mr Lambert’s strong opposition to the development. They also disputed the Claimants’ assertion of financial loss, noting that the fees were treated as a director’s loan to Mr Lambert, which he had repaid.
Court’s Analysis
1. Legal Framework: The court outlined the duties owed by solicitors in both tort and contract, noting that the duties to advise on the prospects of success and to convey counsel’s views were similar in both contexts.
2. Factual Background: The court reviewed the timeline of events, including the initial instruction of the Defendant, the preparation for the judicial review, and the eventual refusal of permission for the judicial review.
3. Allegations of Negligence and Breach of Contract: The court grouped the allegations into six categories and analysed each in detail:

• Treatment of SNC’s Decision of 14 September 2016: The court found that the Defendant was not negligent in preparing for a judicial review of the 14 September decision, as the precise nature of the decision was unclear, and the Defendant acted on counsel’s advice.
• Treatment of Counsel’s Advice of 10 October 2016: The court concluded that the Defendant did convey the substance of counsel’s advice to Mr Lambert and was not negligent in doing so.
• Advice Contained in 27 February 2017 Email: The court found that the views expressed by the Defendant were within the range of advice a reasonably competent solicitor could give.
• Defendant’s Comments on Counsel’s Draft Advice of 10 March 2017: The court determined that the Defendant’s description of the advice as an “amber light” was not a negligent misrepresentation.
• Continued Reliance on Traffic and Noise Issues: The court found that the Defendant was not negligent in pursuing grounds related to noise and traffic, as counsel ultimately included these grounds in the judicial review application.
• Failure to Advise on the True Prospects of Success: The court concluded that the Defendant did provide advice on the prospects of success, including conveying counsel’s views, and that the advice given was within the range of what a reasonably competent solicitor could provide.

The court concluded that the Defendant did not act negligently or breach any contractual duties owed to the Claimants. The court found that the Defendant provided competent advice, conveyed counsel’s views, and acted within the range of what a reasonably competent solicitor would do. As a result, the Claimants’ claim for damages failed. The court also noted that, with the benefit of hindsight, some aspects of the advice could have been provided in writing to avoid litigation, but this did not amount to negligence.

 

Elliott v Hattens Solicitors (a firm) [2021] EWCA Civ 720

In Elliott v Hattens Solicitors (a firm) [2021] the court considered the preliminary issue at trial of the question of whether or not the claim brought by Mrs Elliott (‘the Respondent’), against her solicitors, Hatten Solicitors (‘the Appellant’), was statute barred. The answer would depend upon when damage was sustained. Read more.

Edwards v Hugh James Ford Simey Solicitors [2019] EWSC 54

This case was in relation to a negligence claim against the Defendant firm for alleged failure to properly advise as to settlement of a claim for Vibration White Finger (“VWF”).
It was held at the Supreme Court that a Claimant is required to prove on the balance of probabilities loss of a real and substantial opportunity to bring his special damages claim for services available through the government’s compensation scheme.
It was held that the court at first instance had erred in valuing the lost claim on the basis of evidence which was unavailable at the time of the services claim. If a claim for services had been pursued, it would have been through the government’s scheme, where no expert report would’ve been commissioned under the said scheme, and as such it was not necessary to consider such a report.
It was held that the Claimant had lost the opportunity to claim for services.

 

BPE Solicitors v Hughes Holland [2017] UKSC 21

The Defendant solicitors acted in a group litigation in respect of personal injury suffered as a discharge of waste from a tanker, in which they successfully recovered £30 million for the clients. Those damages were transferred to an account in Ivory Coast. A proportion of the recovered damages were subsequently stolen, and the Claimant along with many other Claimants did not receive their respective damages awards.

The Claimant, as a representative of the other Claimants do did not receive their damages, brought a claim against the Defendant solicitors alleging negligence for failing to protect the money prior to distribution, which resulted in dishonest claims, and failure to retrieve money from the bank account prior to a freezing order was obtained.

It was held that solicitors should have exercised reasonable care in skill in safeguarding, arranging and distribution of the damages based on (1) paralegals managing the damages recovered without any senior supervision without any proper assessment and (2) the instability of Ivory Coast on issues in relation to corruption. Defendant firm were found to be in breach of their duty.
Damages were assessed on the on the contractual basis, not tort, and as such the Claimants were only entitled to recover those damages available under contract.

Barker v Baxendale Walker Solicitors and another [2017] EWCA 2056 (Ch)

This case was brought by the Claimant following, what he alleged, to be negligent tax advice. Advice was given in respect of trusts and with reference to s. 28(4) of the Inheritance Tax Act 1984. The client  was advised to set up an Employee Benefit Trust as a tax efficient vehicle for providing the proceeds of sale to his family and others.

10 years later HM Revenue and Customers (“HMRC”) challenged the scheme and said  CGT was due on Mr Barker’s disposal of his shares. The Claimant settled with HMRC for £11.2m. Mr Barker sued his solicitor. At first instance, the judge considered the solicitors interpretation of s. 28(4) was probably correct, and that they had no duty other than to provide a general warning of the possibility of a challenge by HMRC to the scheme, given that it was a tax avoidance scheme. However, they had no duty to warn specifically of the possibility that the scheme would fail to deliver the tax advantages because of an alternative interpretation of s. 28(4). The judge held a general warning would not have deterred Mr Barker from going ahead with the scheme anyway and the claim failed.

The Court of Appeal concluded that the Defendant’s construction of the statutory provision was “very unlikely” to be correct and found that the Defendant was in breach of his duty in failing to warn of the associated risks. Lady Asplin stated the following principles were likely to apply:The question of whether a solicitor was is in breach of a duty to explain the risk that a court may come to a different interpretation would be highly fact sensitive;
If the interpretation of the provision was clear, it was likely that it would not be necessary to caveat the advice given;

However, it was possible to be correct about the construction of a provision or, at least, not negligent but still under a duty to point out the risks involved and to have been negligent in not having done so;It would be more likely for there to be a duty to point out the risks or, that a reasonably competent solicitor would not fail to point them out when advising if litigation was already on foot, or if a point against the solicitor’s interpretation had already been taken;
The issue is not one of percentages or whether opposing possible constructions are “finely balanced” but is more nuanced.

The Court of Appeal considered that it would have been obvious to any reasonably competent solicitor practising in this area that there was a real risk that HMRC would take a point concerning s. 28(4) and, if necessary, pursue it, given the amounts at stake. The solicitors should have given a specific warning, relating to the alternative interpretation of s.28(4), that there was a significant risk that the tax avoidance scheme would fail.

Lady Asplin stated:’There can be no separation between the advice and any appropriate caveats as to risk,’ ‘They are one and the same. The lawyer as part of the legal advice he is providing, must evaluate the legal position and determine whether in all of the circumstances, he should advise his client that there is a significant risk that the view he has taken about the substantive matter in question may be wrong.’

Anderson Properties Ltd v Blyth Liggins (A Firm) [2017] EWHC 244 (Ch)

The Claimant instructed solicitors on the purchase of development land from a charity. The Claimant planned to develop the land and the contract was conditional upon the Claimant being granted planning permission by a certain date.
Planning applications were to be prepared by the Claimant and approved by the charity however this did not occur, and the contract was conditional upon the grant of planning permission acceptable to the Claimant however it waived this right. The charity refused to complete on the basis of uncertainty due to no suitable plans having been attached to the underlease and contract.

The Claimant accepted a payment from the charity to abandon its claim and instead pursued the solicitor firm for a loss of chance to pursue other options.The Claimant settled the contractual dispute with the charity and sued its solicitors for almost £8m, alleging negligence on the basis that the contract should have been enforceable.

The solicitors argued that, if the Claimant had applied for planning permission in accordance with the contract, there would have been no uncertainty. The area to be leased could have been identified by reference to the planning permission application and the contract would have been enforceable. The court agreed. The question was whether the solicitors were negligent in drafting the contract so that it might be unenforceable if the Claimant failed to apply for planning permission.

The Claimant’s claim was dismissed. It was held there was good reason not to have the plans attached, as to allow maximum flexibility for the parties to negotiate the care facility. Had the Claimant followed the mechanism provided by the contract, it would have been enforceable. All legal parties agreed the plans were not required and the Claimant had agreed, and although the Claimant was relying on legal advice, the solicitor had not been instructed that the contract should be enforceable regardless of whether or not a planning application had been made therefore could not be criticised for failing to draft the contract to include that option.

Seery v Leathes Prior (A Firm) (2017) WL 00219624

A solicitor firm acted for a minority shareholder of a company in relation to a dispute with the company directors and two other shareholders resulting in a full and final settlement sum of £317,000.
The minority shareholder subsequently claimed he was negligently advised and brought a claim against the solicitor firm.
It was claimed they failed to advise him to pursue an unfair prejudice claim which would enable him to obtain further information and provide an advantage in settlement negotiations; failed to advise that in pursuing an unfair prejudice claim, his shareholding would be valued without discount due to it being a minority holding; and failed to advise he retain his directorship, which would have given him standing to obtain warranties from the other directors as to the company’s financial status.

The court held the solicitor firm had not been negligent. It had not been under a duty to advise the Claimant to pursue an unfair prejudice action, would never have advised him to do so if it had been under a duty to advise and further that the Claimant would not have accepted advice to litigate.  As the Claimant was a minority shareholder, the directors could have terminated his directorship at any time. The Judge quoted from a letter from the solicitor to the Claimant which illustrated that the cost and risk of litigation were matters on which he advised. The Claimant could be in no doubt as to his views “Please don’t misunderstand me – I (and my firm) will be more than happy to fight this all the way. However, I have a duty to ensure that you (and your family) are fully aware of what you are getting yourselves into. I don’t want to be walking out of the High Court in 2 years’ time, telling you that whilst we have won the total damages you are able to recover from FWA amount to zero since the company has gone into liquidation, and then handing you my firm’s bill for 70k, at which point you might wish you had accepted the 310k on offer! You would not be too pleased with me, either, if I had not have advised (sic) you to accept that 310k! And then I would be getting sued for negligence!””

Wright v Lewis Silkin LLP [2016] EWCA Civ 1308

A businessman brought a claim in negligence against a Defendant firm of solicitors for alleged  negligent advice and drafting of Heads of Terms (‘HOTs’) relating to his employment in India.
The Claimant was employed by an Indian company, to run an Indian Premier League cricket franchise.

The HOTs  included clauses that:

• He be paid a severance of £10,000,000 in the event of his dismissal. The payment was guaranteed by the company’s parent company.
• The agreement was to be governed by English law.
• However, the terms were silent on jurisdiction.

The Claimant  was dismissed from his employment. The company did not pay the severance payment and nor did the guarantor. It was held at first instance that the Claimant should be awarded damages in the sum of 20% of the figure owing to him under the HOTS as a ‘loss of chance’ claim, as well as his legal costs incurred, in pursuing the Indian company over three years of litigation.

The Defendant appealed and were partly successful. It was held that the damage sustained by the Claimant was too remote and not reasonably foreseeable, therefore the loss of chance award was set aside. At the time of the contact all parties had thought that the  employer, a large Indian media group was a substantial entity.  The Claimant had been confident that the company could pay the £10 million payment.  In May 2008, and with the collapse of Lehman Brothers and the financial crash months away, the parties could not reasonably contemplate that within a few years the company would be unable to meet its debts and not honour the contractual severance payment and ignore a judgment of the Court.

However, the Defendant was ordered to pay to the Claimant the legal costs he incurred in pursuing his severance payment through the courts, the sum of £40,000 in relation to the litigation.

Connaught Income Fund (Series 1)(In Liquidation) v Hewetts Solicitors [2016] EWHC 2286 (Ch)

A claim for damages in professional negligence was brought against a solicitor firm in relation to losses sustained by a collective investment fund. The solicitor firm had been instructed to complete a Certificate of Title (‘COT’) by the company seeking to secure lending form the Fund. The company supplied the COT to the Fund, which relied upon it in granting a loan of £1.1million.  The court was asked to consider whether or not the solicitor had a duty of care to the Fund despite it not having been instructed to act on its behalf; whether that duty of care had been breached in failing to note on the COT that property had previously sold for double the value of the present transaction and any other breach flowing from the general undertaking provided by the solicitor that there were no onerous burdens or conditions affecting title. In addition, the Fund claimed it would not have loaned the sum if the solicitor firm had not acted negligently.

The COT had failed to record that the property had previously valued at more than double the current transaction value which could have highlighted a sale at undervalue in this instance. The fund had not instructed the Defendant but had relied upon a Certificate of Title it had produced in deciding to authorise the loan.
It was held that the solicitor firm did not owe a wider duty of care in these circumstances, rather the duty was limited to exercising due skill and care in completing the COT, which it had exercised.

The COT had been completed with the skill expected of a reasonably competent solicitor.  The failure to record the previous value of the property was not strictly inaccurate as the question was in relation to the ‘sale’ value and no sale took place, rather the property had been valued upon the granting of an underlease. However, the value had been recorded on the Office Copies, the solicitor should have recorded the value in the COT and had therefore breached its duty of care in this regard.

It was held that whilst there were provisions which affected title such as relating to a change of use, they were not unduly onerous so as to breach the general undertaking supplied within the COT by the solicitor. As the fund made it clear that had it known about the valuation, it would not have rejected the loan application, it was held that the breach of duty had not caused any loss or damage to the fund and the claim was dismissed.

Agouman v Leigh Day [2016] EWHC 1324 (QB)
LSREF III Wight Ltd v Gateley LLP [2016] EWCA Civ 359

A successful negligence claim was brought against the Defendant firm for failure to highlight a forfeiture clause which affected the charge on a property. Damages of £240,000 plus interest were awarded for loss attributable to the Defendant firm’s negligence. The loss was held to be at the date of the transaction.
The award was appealed on the basis that loss should be calculated as at the date of trial; and the Claimant failed to mitigate (reduce) their potential loss by agreeing to the Defendant firm providing the funds to vary the charge placed on the register of the property.

The Court of Appeal considered (1) Transactional loss (2) loss as a result of negligence. The transactional loss was, where the security had not crystallised as at the trial date, the transaction loss will be quantified as at the trial date itself, and not the transaction date. Further, the Court found that the failure to take the £150,000, the figure to vary the charge, displayed that the Claimant did not mitigate its loss.

The damages award was reduced to represent the cost of variation and the legal costs.

Dunhill v W Brook and Co and another [2016] EWHC 165 (QB)

A claim was brought by the Claimant for personal injury caused by being struck by a motorcyclist resulting in, as per the initial medical report, impairment in cognitive function.
A subsequent report- not commissioned as part of the PI proceedings- was produced which showed more severe impairment than was initially thought.
The claim proceeded to trial. In attendance was Counsel and a trainee solicitor. Two witnesses for the Claimant were unavailable, one being in prison and the other they were unable to locate. Counsel for the Claimant, as at the date of trial, did not have sight of the non-commissioned report.As a consequence of (1) not having the key witnesses available; and (2) contributory negligence being alleged; the Claimant was advised to settle her damages claim for £12,500.00, given that the Counsel considered the damages claim would be substantially reduced and settled the claim for that figure in full and final settlement.

The Claim settled and the Claimant brought the instant claim for breach of duty of care by advising to settle on a full and final settlement. It was observed by the court that a trainee solicitor is required to adhere to the same standard a fully qualified and competent lawyer, and if counsel was found to be negligent then so would the Defendant firm for sending a trainee solicitor to assist as he was not able to exercise his own independent judgment as he would not have had the experience to detect it.

Further, the Counsel was entitled to assess (1) the merits making an application for adjournment of the trial, given that the witnesses were not able to appear, (2) contributory negligence on behalf of the Claimant, (3) Quantum. Counsel considered that a successful application for adjournment was unlikely, that the Defence of contributory negligence in the PI claim would succeed and reduce damages to some extent.

Caliendo and another v Mishcon de Reya (A Firm) and another [2016] EWHC 150 (Ch)

The Claimants, who combined owned a majority shareholding of a holding company of a Football club, brought a claim in negligence against the Defendant firm, who acted for the holding company in the transaction of selling the Claimants’ shares owned by the Claimants. They wished to sell those shares as the company was loss-making at the material time. The First Claimant had made loans to the company which were outstanding.

It was alleged, following the transaction, that there was an implied retainer by the firm to act on the Claimants behalf or had assumed responsibility, and the transaction was not as per instructed by the Claimants, in that the Defendant firm omitted items from the transaction document, and had included items which should not have been included.

The Claimant’s associate claimed against the holding company for repayment of his debts which reached a settlement, and the holding company subsequent repayment of debt from the first Claimant. A counterclaim was made by the First Claimant which was then discontinued with each side bearing their own costs, the First Claimant’s amounting to £505,000, which he sought from the Defendant Firm in the instant claim.

It was held by the court that the First Claimant failed to prove that the debts were owed by the holding company, and further the first Claimant had consulted his own tax and financial advisers.
There was no express instruction of the firm on behalf of the Claimants. However, it was held there was implied limited duty of care to exercise reasonable care and skill in negotiation and execution of the documents. Though no duty of care was owed in respect of interests which conflict between the holding company and the Claimants, nor on matters which were advised separately by the tax and financial advisers.  Instead, the only duty the Defendant firm had was to ensure that the tax and financial advisers were in receipt of information and drafts provided by the representatives of the parties purchasing the shares.

With regard to the promotion bonus of £2m, the first Claimant was aware and had accepted that it was not included in the transaction document, thus there was no breach of duty.
In conclusion, the claim was dismissed and the costs of the proceedings (£505,000) was not as a result of a breach by the Defendant firm.

Kandola v Mirza Solicitors LLP [2015] EWCA 460

A solicitor firm was not negligent in advising a commercially sophisticated client in relation to a conveyancing transaction where the client disregarded advice. The Claimant had entered into private negotiations in relation to the purchase of a property, to include a loan agreement, unbeknownst to the instructed conveyancer and was subsequently advised against the terms agreed between the parties. The conveyancer advised the Claimant of the risk of losing the funds due to lack of security, the property having a number of charges with priority. The Claimant decided not to take the advice and signed a waiver enabling the transaction to proceed on the basis of ill-advised terms.

Unfortunately, after the loan was agreed and exchange of contracts  took place, the vendor was declared bankrupt and the Claimant sought to recover his losses from the solicitor firm, claiming they had failed to adequately advise and that they did not carry out a bankruptcy search prior to exchange of contracts.

The court determined that the Claimant was not a credible witness as opposed to the experienced conveyancer who had advised caution. As the client was commercially sophisticated, it was held that he understood the advice he was given but chose to ignore it. Further, the conveyancer was only under a duty to advise of the risk and not to evaluate it. It was not common practice to obtain insolvency details prior to exchange of contracts unless otherwise instructed to do so, which the conveyancer was not. The Claimant also stated in evidence that even if he had been advised of the petition he would have likely proceeded leading to the loss.

Chinnock v Veale Wasbrough and another [2015] EWCA 441

A claim brought against a barrister and solicitor relating to advice they had given in a wrongful birth claim was held to have not been negligent. The mother had been advised correctly based on the applicable tests, being the standard of reasonable care provided by the medical professionals in her case. Nevertheless, the court determined that the claim was statute barred in accordance with s. 14A (10) Limitation Act 1980, as she had constructive knowledge of her potential claim and failed to seek legal advice in time to pursue it.

Orientfield Holdings Ltd v Bird & Bird LLP [2015] EWHC 1963 (ch)

A solicitor firm was held to be negligent as they were in breach of duty of care in the purchase of a £25 million property – the purpose of which was in dispute. The claim in negligence was to recover losses sustained after recession of the contract following exchange which included 5% of the property value by way of deposit and associated professional fees. The Claimant conducted separate proceedings against the vendor in which it recovered 5% of the deposit and each agreed to discharge their own fees.

The Claimant rescinded the contract upon learning of the redevelopment of a school in the vicinity of the property. The Claimant had not been made aware of the redevelopment by its solicitor despite them having carried out a search in which the information was provided.

The court held that where a solicitor obtained a particular search, they were under a duty to advise the client of its contents, and they were in breach of their duty when advising the report contained nothing that adversely affected the property, as a reasonably competent solicitor would have understood the significance of the redevelopment to the purchase. There were arguments as to the purpose of the property however it was determined that the property was likely an investment property but if it could not be sold on would be used as a residential property. There was no evidence that the Claimant would have continued with the purchase had it been so advised of the redevelopment. The separate proceedings were not a failure to mitigate and there was no contributory negligence on the part of the Claimant.

Goldsmith Williams Solicitors v E. Surv Ltd [2015] EWCA Civ 1147

A case relating to the negligent valuation of a property by a surveyor in which a solicitor firm was joined to make a contribution for loss sustained by the surveyor. The solicitor firm successfully appealed against being held liable to make a contribution.

The solicitor were found to have breached their duty of care, as a reasonably competent solicitor would have understood the non-confidential information which they received would have affected the value of the lenders security, and was therefore duty bound to report it to the Lender under the CML Handbook, which they did not. However, the surveyors did not prove to the court that had the lender received the information that the solicitor should have provided, that it would have reacted differently. The solicitors appeal was therefore allowed, and they were not liable in contributory negligence.

Rentokil Initial 1927 plc v Goodman Derrick LLP [2014] EWHC (Ch)

It was claimed that the solicitor negligently drafted terms of the conditional contract which enabled the purchaser to avoid completing in a failing market. It was also claimed that the solicitor failed to properly advise upon the meaning and effect of the contract. The court considered the clauses and applied the test of ‘what a reasonably competent practitioner in the position of the solicitor in this matter would have drafted on behalf of its client’.

It was held that the parties’ intentions were clear; the clauses reflected the parties’ intentions as per the Heads of Terms agreed between them and the contract reflected the parties commercial deal. The client had not been exposed to unnecessary risk and was a highly sophisticated commercial client that would have understood the contract with less assistance than a lay client. It could not be proved that the purchaser would have accepted any other deal.

Heron v TNT (UK) Ltd [2013] EWCA Civ 469

The Claimant brought a personal injury claim against his employer, the Defendant. Settlement offers were made between the parties, but the Claimant failed to beat the Defendant’s Part 36 Offer and was ordered to pay the Defendant’s costs. The claim was funded by way of a conditional fee agreement (“CFA”) but without the benefit of After the Event Insurance (“ATE”).

The Claimant was unable to pay, and the Defendant’s solicitors sought an order for costs against the Claimant’s solicitors alleging conflict of interest and that they had become a party to the claim. The Court found there was no impropriety on the Claimant’s solicitors behalf and was therefore not ordered to pay the costs. In respect of negligence, failure to obtain ATE, when acting under the terms of CFA, was not a ground for breach of duty of care. Nor is it negligence if the solicitor knows or suspects that their client does not have sufficient assets to pay a potential costs order.

Newcastle International Airport Ltd v Eversheds LLP [2013] EWCA Civ 1514

The Defendant, a firm of solicitors, were instructed to draft new employment contracts for two executive directors of the Claimant, Newcastle International Airport Limited (NIAL).
These instructions were the product of a meeting between the executive directors and the chair of the Remuneration Committee. The Defendant provided finalised drafts to the chair of the Remuneration Committee for signing following negotiations with the two directors.The contract allowed for substantial bonuses and, a release from certain restrictive covenants.

When the size of the bonus liability became apparent, NIAL sued The Defendant, arguing that the solicitors were negligent in taking instructions from the same executive directors on the provisions of the service agreements without consultation with the Remuneration Committee. The High Court found that the chair of the Remuneration Committee had ‘held out’ that the directors were specifically authorised to communicate with The Defendant direct on NIAL’s behalf. The Defendant was under no obligation to continually check with NIAL that the agent had actual authority to act on particular provisions of the draft contracts.

On Appeal the Court of Appeal held, that it did not allow the Defendant solicitors to treat the executive director simply as a part of the company; there was a clear conflict between the interests of the Directors providing instructions to the Defendant solicitors and the interests of the company.  The Company had instructed the solicitors and it was the Company to which the solicitors owed a duty of care.  The Court of Appeal stated that the solicitors should have provided a separate advice explaining the terms and effect of the service contracts to the Company
The Defendant solicitors were ordered to pay nominal damages.  It could not be concluded that, had the Defendants provided the explanatory advice, the contracts would not have been signed. Even if the solicitors had provided the advice it was likely that the Chair would have misread it. The loss was not caused by the solicitors’ breach of duty but by the failings of its Chair and the Claimant was awarded nominal damages of just £2.

“I have taken a different view from the judge as to the extent of Eversheds’ duty of care, and would hold that, by failing to provide any explanatory memorandum to Ms Radcliffe, they breached their retainer. For reasons given, however, I agree with the judge that such breach was not causative of substantial loss. Formally, I consider that the correct course would be to allow NIAL’s appeal, set aside paragraph 1 of the judge’s order by which she dismissed NIAL’s claim and substitute for it an order that Eversheds must pay NIAL nominal damages of £2 for breach of retainer.”

The Court of Appeal later ordered the Company to pay all of the Defendant’s legal fees.  The Company was ordered to pay the Defendant’s legal fees because the chairwoman of the Company admitted before the Court that she did not read complicated legal documents and sometimes failed to read emails from legal.

Langsam v Beachcroft LLP and others [2012] EWCA Civ 1230

A professional negligence claim was settled between the Claimant and his accountant following advice from the Defendant. Subsequent proceedings were brought by the Claimant against the Defendant firm, who were acting on his behalf in the case against his Accountant, alleging negligence for failing to properly advise.
It was held by the court that provided a solicitor advises on figures within a range of views of a reasonable and competent lawyer, he will not be negligent, regardless of whether or not those figures are pessimistic. Further, a solicitor applying his own expertise should consider advice from counsel as to whether it is glaringly or obviously wrong. If it is not, then a solicitor and client will be entitled to rely upon that advice.

Edenwest Ltd v CMS Cameron McKenna (a firm) [2012] EWHC 1258 (Ch)

A debenture-holder instructed the Defendant firm to advise on the instruction of administrative receivers and the sale of assets of the Claimant company. Advice was given that the potential claims against the company’s insurer/insurance broker following the withdrawal of insurance would be difficult to prove. The Claimant issued proceedings Claimant breach of duty in contract and tort as to pessimistic advice given as to the merits of those claims advised on.
It was found that although administrative receivers act for a company as an agent, this does mean that the company automatically becomes a party to the retainer entered into between the administrative receiver and solicitors’ firm, therefore a duty of care was not owed to the company. Instead, there would require some act or instruction and acceptance between the administrative receiver and the firm.

Lane v Cullens Solicitors and others [2011] EWCA Civ 547

The Claimant was an administrator of his sister’s estate, who died intestate. He instructed the Defendants in relation to administration of the estate. A third party prior to the distribution of the estate, asserted that the estate was being held on trust for her. The estate was then distributed between the beneficiaries, and the third party subsequently obtained a declaration that it was held on trust for her, and the money paid out by the Claimant to the beneficiaries be returned.

The limitation period for a claim in negligence is 6 years from the loss caused by the breach of duty of care. The Court of Appeal held in this case that the cause of action accrued at the date the administrator paid out from the estate, which is the point damage had been suffered by the administrator. The Defendant Solicitors were negligent for failure to advise him not to distribute the assets whilst there was an outstanding claim to the estate, though, the claim was struck out given that the claim was issued more than 6 years after the loss had occurred.

Levicom International Holdings BV and another v Linklaters (a firm) [2010] EWCA Civ 494

The Defendant solicitors were instructed to advise on the construction of clauses contained in a share-purchase agreement. Settlement offers were made but the solicitors provided an advice which stated that the Claimant had a strong prospect of succeeding in relation to the construction of the clauses and the Claimant subsequently brought arbitration proceedings based on that advice. The arbitration proceedings were subsequently settled in less favourable terms than had been offered previously with the addition of incurring costs.
The Court of Appeal found that the Defendant Solicitors were negligent in their advice on the construction of clauses stating that they were clear when the court considered they were not. Nor was there any effort by the Defendant solicitors to properly quantify the loss. Further, it was found that the Claimants relied upon the Defendant’s advice which caused their loss, and if at the outset they had been properly advised, they would not have initiated arbitration proceedings and would have settled on more favourable terms.

Moy v Pettman Smith [2005] UKHL 7

This case arose from a personal injury/clinical negligence lawsuit that did not end as the claimant hoped. Mr. Moy had sued for compensation over medical negligence. On the morning of the trial, the defendant offered to settle for £150,000 plus costs. Mr. Moy’s legal team consisted of his solicitors (Pettman Smith) and a barrister (Ms. Jacqueline Perry) they had instructed to represent him in court. At the “door of the court” (literally moments before the trial), the barrister advised Mr. Moy not to accept the offer, believing he could do better at trial. Relying on that advice, Mr. Moy rejected the settlement. However, the case encountered unexpected difficulties – crucial evidence was ruled inadmissible – and the trial did not proceed as expected. Ultimately, Mr. Moy had to settle the case later for a significantly lower amount. Feeling misled, Mr. Moy sued his solicitors for professional negligence, claiming they and the barrister had cost him the chance of a better outcome.

The solicitors, in turn, brought a contribution claim against the barrister, arguing that if the solicitors were liable, the barrister’s negligent advice was the real cause of the loss. The case thus examined the respective responsibilities of solicitors and barristers when a client alleges negligent handling of litigation.

 

The key issues in Moy v Pettman Smith were:

Standard of Care in Last-Minute Advice: Was the barrister negligent in advising Mr. Moy to reject the settlement without fully explaining the risks (especially given the last-minute nature and her own doubts about the evidence)? In essence, what level of detail and caution is required from counsel giving urgent advice under pressure?
Solicitor’s Liability vs. Counsel’s Advice: Can the solicitors avoid liability by having reasonably relied on the barrister’s advice? Solicitors often depend on barristers’ specialist judgments during litigation. The question was whether the solicitors breached their own duty to the client or whether any fault lay solely with the barrister’s guidance.
Causation and Outcome: Even if the advice was suboptimal, would Mr. Moy have definitively done better by accepting the earlier offer? Proving negligence in litigation often requires showing that, but for the lawyer’s error, the result would have been more favorable – a challenging requirement, especially with many uncertainties in trial outcomes.

Court’s Decision

The House of Lords found that the barrister was not negligent in the circumstances, effectively absolving Ms. Perry of liability. In doing so, the Lords overturned the Court of Appeal’s contrary decision. They emphasized that the advice was given literally on the courthouse steps, in an urgent, pressured situation. Although the barrister did not spell out every detail of her reasoning or the exact odds of success, the Law Lords held this did not amount to a breach of duty. An advocate cannot guarantee the outcome of a case, and a moment’s tactical advice – even if it later turns out suboptimal – is not negligent so long as it falls within the range of competent professional judgment.

In practical terms, this meant Mr. Moy’s claim against the barrister failed. As a result, the solicitors could not shift liability to the barrister. (If the solicitors had been found negligent as well, they would bear responsibility to the client, since the barrister’s advice was deemed reasonable.) The House of Lords’ ruling reinforced that courts will be slow to second-guess split-second decisions made by lawyers in the heat of litigation.

The decision in Moy v Pettman Smith carries important lessons about professional teamwork and liability in litigation negligence cases:

Latitude for On-the-Spot Decisions: The Law Lords recognized that advice given at the last minute – “at the doors of the court” – often cannot be as fully reasoned as advice given with the luxury of time. The ruling underscores that barristers (and solicitors) are given some leeway in urgent scenarios. Failing to articulate every risk or doubt is not necessarily negligent when time is short and the situation is fluid. Here, Ms. Perry’s judgment call (that they “would do better” by proceeding to trial) was within the bounds of reasonable professional conduct, even if events later proved otherwise.

This assures lawyers that making a good-faith tactical decision under pressure won’t easily be branded negligent by hindsight.
Reliance Between Solicitor and Counsel: The case highlights how solicitors and barristers collaborate, and that a solicitor may rely on the barrister’s expertise for critical trial advice. If the barrister’s advice is reasonable (as it was found to be here), the solicitors are unlikely to be found negligent for following it. In fact, English law has long allowed solicitors a defence of having acted on competent counsel’s advice in good faith. Moy reinforces this principle – a solicitor is generally not at fault if they sought proper advice from a barrister and there was no obvious error in that advice.
Proving Causation and Loss: Even when a lawyer’s decision can be questioned, a claimant like Mr. Moy faces the hurdle of showing the outcome would have been better otherwise. In this case, it was far from certain that accepting £150,000 earlier would leave Mr. Moy better off – he might have won more at trial if the evidence issue had been resolved. The inherent unpredictability of litigation means that to win a negligence claim, the client must prove a clear “loss of chance.” Moy illustrates the courts’ reluctance to find liability unless it’s plain that the client was denied an opportunity that would probably have succeeded.

Conclusion

Moy v Pettman Smith ultimately exonerated the barrister (and by extension, her instructing solicitors) from negligence, stressing the realities of last-minute litigation strategy. For clients, the case may seem a disappointment – Mr. Moy did not recover the shortfall in his compensation – but it reflects a balanced approach by the courts. Lawyers are expected to use reasonable judgment, but they are not insurers of the outcome. The Moy decision gives reassurance that not every mistake or unfavorable result in litigation will amount to solicitor negligence. However, it also clarifies that solicitors must actively seek sound counsel’s advice in complex matters and keep clients informed as much as possible, even under pressure. For the public, this case demonstrates the high bar that a negligence claim must meet: only where a lawyer’s actions fall outside the range of reasonable professional decisions – and cause a poorer result – will liability arise.

Hilton v Barker Booth & Eastwood [2005] UKHL 8

Hilton v Barker Booth & Eastwood is a House of Lords case underlining a solicitor’s duty of loyalty and the perils of conflicts of interest. Mr. Hilton was a client who engaged a firm of solicitors (Barker Booth & Eastwood, “BBE”) to represent him in a property development deal. Unbeknownst to Mr. Hilton, the same firm was also acting for the other party in the deal, Mr. Bromage. This dual representation put the solicitors in a conflict of interest. Crucially, the solicitors were aware that Mr. Bromage had a history of criminal convictions for dishonesty and was an undischarged bankrupt, information highly relevant to any potential business partner. The solicitors also had a financial involvement – they had lent Mr. Bromage the deposit money for the transaction – further entangling their loyalties. They did not disclose any of this to Mr. Hilton. Relying on the solicitors to protect his interests, Mr. Hilton went ahead with the venture. Predictably, things went wrong: Mr. Bromage turned out to be a “man of straw” (financially insolvent and untrustworthy) and the project collapsed, causing Mr. Hilton significant losses.

Mr. Hilton sued the solicitors BBE for negligence and breach of duty, alleging they should have informed him of Mr. Bromage’s true background or declined to act for him given the conflict. The solicitors argued in their defence that they were caught between duties – they claimed that disclosing Mr. Bromage’s confidences (his bankruptcy and convictions) would breach their duty to that client, so they felt unable to warn Mr. Hilton.

The case presented a stark question: Can solicitors escape liability to one client by claiming that their duty of confidentiality to another client prevented them from giving a warning? In other words, if a firm chooses to act for two clients with potentially opposing interests, what happens when duties conflict? Specific issues were:

Duty of Loyalty vs. Confidentiality: How should solicitors balance the duty to keep one client’s information confidential with the duty to be candid and loyal to another client, when those clients’ interests collide?

Informed Consent to Dual Representation: Did Mr. Hilton give informed consent to BBE representing both sides, and if not, was the firm automatically in breach of duty by acting in such an obvious conflict of interest?

Solicitor’s Accountability in Conflicts: Should the solicitors be held liable for the loss caused by nondisclosure of Mr. Bromage’s insolvency and criminal record, despite their argument that they were contractually bound not to reveal that information? Essentially, does entering into conflicting engagements immunize a solicitor from negligence, or does it aggravate it?

Court’s Decision

The House of Lords unanimously found the solicitors liable for their breach of duty to Mr. Hilton. The solicitors’ attempt to defend themselves by pointing to their duty to the other client (Mr. Bromage) was firmly rejected. Lord Walker famously stated that if a solicitor finds themselves with conflicting duties, they must fulfill both as best as possible and cannot prefer one client over the other. In practical terms, the firm should never have taken on both clients in the first place, given the conflict. By doing so, they put themselves in an untenable position. The law will not allow a solicitor to hide behind a conflict of their own making.

The court held that BBE should have disclosed Mr. Bromage’s convictions and financial status to Mr. Hilton or declined to act for Mr. Hilton at all. Their failure to protect Mr. Hilton’s interests (by at least warning him that they could not advise him fully due to a conflict) was a clear breach of the fiduciary duty of loyalty. Any supposed contractual term or understanding that the firm would not disclose the information was overridden by fundamental principles of solicitor duty – one cannot contract out of core obligations of honesty and loyalty to a client. Consequently, BBE was held responsible for the losses Mr. Hilton suffered from entering into the ill-fated deal. In a poignant closing note, the Lords urged that Mr. Hilton be compensated without further delay, stressing “for the good name of the solicitors’ profession” that he receive a generous settlement.

Analysis

Hilton v Barker Booth & Eastwood reinforces several important points about solicitors’ professional conduct and negligence:

Absolute Duty of Loyalty: A solicitor’s duty to act in the best interests of their client is paramount. If a situation arises where a solicitor’s duty to one client irreconcilably conflicts with duty to another, the solicitor must not continue to act for both. The case makes it clear that a solicitor cannot justify inaction for one client by citing obligations to another. In Lord Walker’s words, the solicitor cannot “prefer the interests of one client over the other” – doing so is a breach of duty. The expectation is that a solicitor will avoid conflicts or obtain fully informed consent from all parties after full disclosure. Even then, if a serious conflict materialises, the proper course is usually to cease acting for one or both clients.

Informed Consent and Confidentiality: Here, Mr. Hilton was never informed of the conflict or the adverse information, so he could not consent to it. The case underscores that secret conflicts are particularly egregious. A client places trust and confidence in their solicitor, and that fiduciary relationship means the solicitor must disclose anything that would materially affect the client’s interests (short of breaking another client’s confidence, which is why the situation should have been avoided entirely). The fact that Mr. Bromage’s criminal record was public information (convictions are on the public record) meant the firm had even less excuse for not telling Mr. Hilton. They chose not to volunteer it to protect Mr. Bromage’s deal – a clear preference of one client over the other.

No Contracting Out of Duty: The solicitors tried to argue that an implied term of their retainer with Mr. Hilton was that they couldn’t share Mr. Bromage’s confidential information, suggesting Mr. Hilton implicitly accepted that risk. The House of Lords flatly rejected this notion. An implied term cannot negate fundamental fiduciary duties. This principle is important: a solicitor’s core duties of loyalty and honesty cannot be diluted by fine print. If a firm cannot serve a client with full loyalty due to another obligation, it simply should not take on that client.
Professional Standards: The outcome in Hilton sent a strong message to law firms about the dangers of acting for multiple parties in the same transaction. It reinforces that high standards of integrity are expected – the “good name” of the profession, as the Lords noted, depends on it. The case is often cited in legal ethics discussions to illustrate what can go wrong if conflicts are mishandled. For negligence law, it establishes that causing a client loss by taking on conflicting duties will certainly put the firm in breach of its duty of care (and fiduciary duty), making them liable for the consequences.

Conclusion

The ruling in Hilton v Barker Booth & Eastwood serves as a cautionary tale that solicitors must avoid conflicts of interest or face serious liability. For clients, it is an assurance that their solicitor must remain loyal to them – if a solicitor fails to disclose a conflict or puts another client’s interests first, the client can hold them accountable. Mr. Hilton’s victory meant he could recover his losses, reinforcing that a wronged client will be protected by the courts even when the situation involves complicated dual representations. For the public, this case instills confidence that law firms cannot double-deal or keep clients in the dark: a solicitor must either serve a client with undivided loyalty or not at all. In summary, Hilton underscores the inviolable principle that a client’s trust should never be betrayed by their solicitor’s divided loyalties.

 

These pivotal cases demonstrate how English courts have progressively shaped the landscape of solicitor negligence law, always with an eye on fairness and public confidence in the legal profession. From the abolition of advocates’ immunity in Hall v Simons (ensuring no lawyer is above the law) to holding solicitors accountable for conflicts of interest in Hilton, the trend is clear: solicitors owe a high duty of care to their clients (and sometimes to others affected by their work), and they will be answerable if they fall short. Cases like White v Jones show the courts’ willingness to innovate so that justice is done – even extending a solicitor’s duty to third-party beneficiaries to prevent injustices .

For someone who believes they have suffered due to a solicitor’s mistake or misconduct, these decisions are encouraging. They highlight that the law offers remedies for professional negligence, whether the issue was an advocate’s error in court, a critical delay in drafting a will, or a solicitor’s divided loyalty in a transaction. Each case turned on its facts, but together they reassure clients that solicitors must perform their duties diligently, competently, and loyally – and if they do not, the courts can provide redress.

If you are concerned that a solicitor’s negligence has caused you loss, it may be worth reviewing these precedents and seeking legal advice. The principles from these cases will guide any assessment of your claim. Ultimately, the evolution of solicitor negligence law aims to uphold the standard of care in legal practice and to maintain public trust by ensuring that when solicitors err, clients have a path to justice.

Arthur J S Hall & Co v Simons [2002] 1 AC 615 (HL)

Background

Arthur J S Hall & Co v Simons is a landmark House of Lords decision that abolished the historical immunity of advocates (including solicitors and barristers) from negligence claims. Previously, under cases like Rondel v Worsley (1967), advocates could not be sued by clients for negligent conduct in court, based on public policy that lawyers should act fearlessly in court without fear of being sued. By the late 1990s, this immunity was seen as an anomalous exception. In Hall v Simons, three separate negligence claims against solicitors (arising from both civil and criminal proceedings) were initially struck out due to advocate immunity. The Court of Appeal reinstated the claims, and the House of Lords was asked to reconsider whether the immunity should stand in modern times.

Key Issues

The central issue was whether it was still justifiable for solicitors and barristers to have immunity from being sued for negligence in their conduct of litigation. Key considerations included:

Would allowing negligence claims against advocates undermine the finality of litigation by encouraging collateral attacks on criminal or civil judgments?
Might the threat of being sued make advocates overly cautious or conflicted in fulfilling their primary duty to the court (e.g. deterring them from acting in the client’s best interest for fear of liability)?
Had circumstances changed since the 1960s (e.g. introduction of professional insurance, the evolving legal services market, and greater consumer awareness of legal rights) such that the public interest no longer favored a special immunity for legal professionals?

Court’s Decision

The House of Lords abolished advocates’ immunity from negligence in respect of civil and also criminal litigation. It held that it was no longer in the public interest to maintain this blanket protection for solicitors and barristers. This meant that going forward, a client could sue their solicitor or barrister for negligent handling of a case, whether in court or preparing for court. The Law Lords unanimously concluded that the justifications for the old rule were outdated. They expressly overruled Rondel v Worsley and related precedents, declaring that advocates must be accountable under the law like any other professional.

Analysis

The House of Lords’ reasoning highlighted several points about why removing immunity would ultimately benefit justice:

No Flood of Collateral Challenges: The Lords noted that allowing negligence claims would not, in practice, lead to a flood of hopeless attempts to re-litigate cases. Courts can strike out unmeritorious claims and it is inherently difficult for a claimant to show that a better outcome would have occurred without the lawyer’s error. Legitimate safeguards (like summary judgment rules) exist to prevent abuse.

Duty to Court Unaffected: An advocate’s paramount duty to the court would remain intact even without immunity. The mere fact of performing one’s duty to the court (even if it disadvantages the client) could not be considered negligence. In other words, a lawyer who acts in good faith in accordance with professional obligations should have nothing to fear. The Lords trusted that judges could distinguish genuine negligence from reasonable tactical decisions made under pressure.

Accountability and Public Confidence: Removing immunity corrects the “anomalous exception” whereby one profession was beyond legal reproach. Exposing occasional acts of incompetence to liability would strengthen rather than weaken the legal system. The public’s confidence is enhanced when no one is above the law – previously, it appeared lawyers were “singled out for protection no matter how flagrant the breach,” which undermined trust. In a modern consumer society, clients expect remedies for negligent professional services.

Changes in the Legal Profession: By 2000, barristers and solicitors carried mandatory insurance and could enter contracts with clients, unlike in earlier decades. The legal landscape had evolved to treat law as a service for which accountability is appropriate. The Lords acknowledged that the world had changed since 1967 and the legal profession must be accountable to the public it serves.

Overall, the decision balanced the need for fearless advocacy with the need for accountability. The Law Lords were confident that removing immunity would not impede advocates’ performance, and that legitimate claims of negligence should have a remedy in law.

Conclusion

Hall v Simons marked a turning point in English law by affirming that solicitors (and barristers) are not above negligence claims when their mistakes cause harm. After this case, clients who suffered losses due to negligent advocacy or litigation handling gained the right to seek redress against their legal representatives. The ruling modernised the law in line with basic principles of negligence – if a professional does a wrong, a client should have a remedy. Importantly, while the door was opened to sue lawyers for in-court negligence, the courts have continued to impose high thresholds for proving such claims (particularly in criminal cases, where a convicted person must also show they likely would have been acquitted but for the lawyer’s negligence). In summary, Hall v Simons enhanced client protection and accountability, thereby encouraging higher standards in the legal profession and reassuring the public that negligent solicitors can indeed be held to account.

 

Asset Management Corpn v York Montague Ltd [1997] A.C. 191 (‘SAAMCO’).

The Appellant (‘A’) sued his solicitors (as well as other parties) for losses sustained in relation to a loan he made to a company.A believed the purpose of the loan was to develop a property owned by the company, when in fact the funds were to be used for the purchase of the property. A instructed his solicitor not to carry out the usual searches against the title at Land Registry and to proceed regardless.

Upon repayment of the loan together with interest, A was due to receive around £70,000 which included interest at 28% p.a. which was a significant profit. A actually received just £13,000 which was swallowed up by the related costs. The director of the company to which A loaned the funds, did make a voluntary payment for losses to A for just under £10,000. A brought a claim against his solicitor for losses as well as the company.

It was held that his solicitor’s liability was limited only to losses flowing from the negligent act, in this case, the solicitor failing to clearly identify A’s instructions. A had believed the loan was for development and not a purchase and a facility letter to that loan, drafted by his solicitor supported those instructions. Therefore, but for the solicitor’s breach of duty A would not have proceeded to make the loan to the company.

A was successful in his claims against the company as well however, it was insolvent therefore he was unable to recover any losses there.
This first instance decision was appealed to the Court of Appeal. It was held that the loss fell outside the scope of the duty owed to A by his solicitor. They were not concerned as to what the loan was for, they were not advising on the commercial viability and or risks. The court considered the high rate of interest attached to the loan reflected its risk assessment carried out by A. Therefore, the loss was not as a result of a breach of duty.

A disagreed and appealed to the Supreme Court, now by his trustee in bankruptcy, having met with some financial difficulties.
It was held that the solicitor was liable for consequences relating to the wrongful act. However, on the facts of this case, there was no evidence that A would not have recovered more had the funds been applied to the development rather than the purchase. The loss was not as a consequence of the funds being applied to the purchase instead.

This case reiterated the SAAMCO principle which is a limitation of a defendant’s liability based on a ‘developed judicial instinct about the nature or extent of the duty which the wrongdoer has broken’. Commentary was pronounced as to two different types of cases; an advice case and an information case.

A defendant in an advice case would be liable for foreseeable consequences where their duty was to consider the entire transaction and act in an holistic manner, rather than limited to one aspect. Whereas, in an information case, a defendant would only be liable for the losses sustained as a consequence of the information it provided, therefore limited. This limitation is necessary as otherwise a defendant would act as a underwriter for an entire transaction where only advised as to one aspect.The court does appreciate that the application of SAAMCO may lead to mathematical inaccuracies but is necessary in the interest of justice.

White v Jones [1995] 2 AC 207 (HL)

White v Jones is a notable House of Lords case that extended solicitors’ duty of care to third parties – specifically, to intended beneficiaries under a will. The facts were tragic and instructive: A father (Mr. White) had made a will disinheriting his two daughters after a family disagreement. Later, he reconciled with them and instructed his solicitor (Mr. Jones) to prepare a new will leaving each daughter £9,000 . The solicitor, however, delayed unreasonably in carrying out these instructions. Unfortunately, Mr. White died before the new will was executed. As a result, the old will (which excluded the daughters) remained in effect, and the daughters inherited nothing. They sued the solicitor for negligence, claiming that his delay deprived them of the £9,000 each that their father clearly intended them to have.

The twist was that the daughters were not the solicitor’s clients – the deceased father was. Normally, only the client can sue for breach of contract or duty, and the estate (standing in the client’s shoes) had actually suffered no loss (the estate’s value was unchanged by the solicitor’s error). Thus, without a legal innovation, the disappointed beneficiaries would have no remedy, and the negligent drafting (or lack thereof) of the will would go unchallenged.

Key Issues

The primary issue was: Can a solicitor be held liable in negligence to a person who is not their client? Specifically, did Mr. Jones (the solicitor) owe a duty of care to the intended beneficiaries of his client’s will (Mr. White’s daughters)? This raised sub-issues:

Duty to Third Parties: Under what circumstances can a duty extend beyond the direct client, given the usual rule of “privity” (that a contract or duty exists only between the solicitor and their client)?

Application of Caparo Test: The court had to apply the Caparo criteria to decide if a duty existed: Was the loss to the daughters foreseeable, was there a proximate relationship, and was it fair, just, and reasonable to impose a duty on the solicitor in favor of the daughters?
Policy Concerns: One concern was that imposing such a duty might conflict with the solicitor’s duty to the client or open the door to indeterminate liability. However, in will cases, the interests of the client (who wanted the will changed to benefit the daughters) actually aligned with the interests of the third-party beneficiaries. The alternative was a legal “lacuna” – an empty gap – where negligence would have no remedy.

Court’s Decision

The House of Lords (by a 3-2 majority) found in favor of the daughters, establishing that the solicitor owed a duty of care to the intended beneficiaries and was negligent by causing their expected legacy to be lost . In effect, the court crafted an exception to the privity rule in this specific scenario.

Using the Caparo test, the majority held: (1) It was reasonably foreseeable that if the will was not updated promptly, the daughters would be deprived of their inheritance . (2) There was sufficient proximity between the daughters and the solicitor, because the very purpose of the solicitor’s engagement was to benefit the daughters (the client’s intent to benefit them put them in close contemplation) . (3) It was fair, just, and reasonable to impose a duty in this case – if the law did not, no one else could claim and the solicitor would escape accountability entirely, leaving an unjust result. The majority were persuaded that holding the solicitor liable was the only way to uphold the testator’s intentions and provide a remedy for a clear wrong.

Thus, Mr. Jones was found negligent and liable to pay the daughters the value of the lost legacies (£9,000 each). The decision was ground-breaking, as it allowed non-clients to sue a solicitor for losses caused by that solicitor’s negligence in performing services for a client.

Analysis

White v Jones is often cited for its bold step in expanding the scope of solicitors’ liability. Key takeaways include:

Duty of Care Extended: The case established that in certain situations, a solicitor’s duty of care can extend to third parties who rely on the solicitor’s work or are intended to benefit from it. The alignment of interests is crucial – here, the client wanted the beneficiaries to benefit, so by serving the client, the solicitor was also undertaking responsibility towards the beneficiaries. This is a relatively narrow exception, primarily in the context of wills and estates. It addresses the obvious gap: the client who could sue is dead and not financially harmed, yet the real loss is suffered by the beneficiaries. Now, those beneficiaries have legal standing to claim for the loss of their expected inheritance due to the solicitor’s negligence.
Caparo in Action: White v Jones was a practical application of the Caparo three-part test in a novel context . The foreseeability was clear (if you don’t carry out a will update, the intended beneficiaries will lose out). Proximity was established by the specific purpose of the retainer (it was aimed at benefiting the daughters). Fairness was the most debated element – the majority felt that without a duty, it would be too easy for solicitors to avoid liability and that public confidence in solicitors would suffer if such blatant errors went uncompensated. Detractors worried about undermining the sanctity of contract and potentially conflicting duties, but the court was careful to note that recognizing this duty actually reinforces the client’s interests (since the client presumably wanted his will correctly implemented).

Professional Responsibility: The case sent a message to solicitors, especially those drafting wills, to act diligently and promptly when executing clients’ testamentary intentions. Delay or error can lead not only to professional discipline or reputational harm, but also legal liability for economic losses to third parties. This heightened the standard of care in wills and probate work – solicitors must be mindful that the “true” clients include those whom the testator intended to benefit. In a broader sense, it underscores that solicitors should be conscientious of how their work affects others connected to the transaction, as courts may impose duties beyond the immediate client in appropriate circumstances.

In summary, White v Jones allowed disappointed beneficiaries to recover losses from negligent solicitors, filling a fairness gap in the law. For the public, this case is reassuring: it shows the law’s flexibility to provide a remedy even when procedural hurdles (like no direct contract) exist, so long as the situation merits it. If a solicitor’s mistake defeats someone’s expected inheritance – an expectation deliberately created by the testator’s instructions – the victims are not left without recourse. The decision maintains trust in legal services by ensuring solicitors can be held to account for negligence that harms people beyond just their direct clients. Today, anyone in a similar position (for example, a beneficiary who lost out because a will was drafted or executed late or incorrectly) can point to White v Jones as authority that they may have a valid claim. It stands as a powerful example of the courts prioritising justice and accountability in professional negligence.

 

Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)

While not a solicitor negligence case per se, Caparo Industries plc v Dickman is a foundational House of Lords decision that established the general test for a duty of care in negligence. This test influences all professional negligence claims, including those against solicitors. The case involved an investor (Caparo Industries) who bought shares in a company (Fidelity plc) based on information in the company’s audited accounts. The accounts, prepared by the auditors (Dickman), turned out to be misleading, and Caparo lost money after acquiring the company. Caparo sued the auditors for negligence, claiming the auditors owed a duty of care to any investor who relied on the accounts when deciding to purchase shares.

Key Issues

The issue was whether the auditors owed a duty of care to Caparo, a third-party investor who relied on the published financial statements. More broadly, the House of Lords had to determine how to decide if a duty of care exists in novel situations where there is no direct contractual relationship (here, the auditors’ contract was with the company, not individual investors). The case asked to what extent professionals owe duties beyond their immediate clients or statutory obligations – a question equally relevant to solicitors when third parties seek to hold them accountable.

Court’s Decision

The House of Lords held that the auditors did not owe a duty of care to outside investors like Caparo in these circumstances, as there was not a sufficiently close relationship. In doing so, the court formulated the famous three-fold test for duty of care:

Foreseeability: The harm or loss must be a reasonably foreseeable result of the defendant’s conduct.
Proximity: There must be a sufficiently proximate relationship between the claimant and the defendant. This includes considerations of whether the defendant knew their information or advice would be communicated to and relied upon by the claimant.
Fair, Just and Reasonable: It must be fair, just, and reasonable to impose a duty of care in the situation, considering public policy.

Applying this test, the Lords unanimously concluded that Caparo’s claim failed because, although financial loss to investors was arguably foreseeable, the relationship was not sufficiently proximate and it would not be fair to impose liability to an indeterminate class of potential investors. Auditors statutory duty was to the company and its shareholders as a body, not to individual outside investors or shareholder-speculators. Therefore, Caparo lost its case – no duty meant no negligence liability for the auditors.

Analysis

The Caparo test established in this case has become the blueprint for analysing duty of care in all negligence claims, including those against solicitors:

For a solicitor, foreseeability of harm is usually clear if a mistake is made in handling a client’s matter (financial loss to the client is a foreseeable consequence of bad legal advice).
Proximity is normally satisfied in solicitor-client relationships due to the contractual retainer. However, in cases where a third party (not the solicitor’s client) seeks to sue – for example, a beneficiary under a will drafted by the solicitor – proximity is a crucial question. Caparo tells us to ask: was the solicitor aware that their work or advice was aimed at this third party or that the third party would rely on it? Only if the connection is close (as it was found to be in White v Jones, below) will a duty be recognized to someone other than the client.
The fair, just and reasonable element acts as a policy check. Even if something is foreseeable and proximate, the court will consider whether extending a duty to that scenario serves the broader interests of justice. In Caparo, imposing a duty to a limitless range of investors was deemed unfair and potentially detrimental to business and professional certainty. In solicitor cases, this element may consider factors like whether recognizing a duty to third parties would conflict with the solicitor’s duty to their actual client or open the floodgates to excessive litigation.

Caparo is directly relevant to solicitors’ negligence in that it laid down the criteria later used to decide cases like White v Jones. It reminds us that not every mistake leading to loss will result in liability – a duty of care must first be established by satisfying the tripartite test. For most typical situations (solicitor and client), duty is straightforward; but Caparo is key when defining the scope of a solicitor’s duty to others affected by their work.

Conclusion

Though Caparo v Dickman involved auditors, its legacy in English law extends to all professional negligence claims. It established a structured approach to determine if a duty of care exists, which has to be met before negligence can be proved. For clients and potential claimants, the Caparo principles ensure that courts carefully consider the relationship and context before holding a solicitor liable. In practice, once a duty is established (as is usually the case between solicitor and client), one can then focus on whether the solicitor breached that duty and caused loss. Caparo thus provides the legal framework that underpins when and to whom a solicitor (or any professional) may be held accountable for negligence.

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