Solicitors Negligence

Shepherd Construction Ltd v Pinsent Masons LLP [2012] EWHC 43 (TCC)

Pinsent Masons had acted for the Claimant from 1990 until 2008. The firm had undergone over the years various mergers which meant there were many successors to the original practice. The various guises had completed seventy different pieces of work over the years for the client.

The claim arose out of a decision in the case of William Hare Limited v Shepherd Construction Limited were the Court of Appeal had held that the defendant in that case could not withhold payment under a “pay when paid ‘ clause.

The Claimant in their solicitors negligence claim alleged that Pinsents should have advised that the law had changed in 2002 and the company should have been advised by Pinsents of the change and that changes in their contracts needed to be made.

Shepherds argued that that there was a single contact over the years which covered all the different identities of Pinsents.

They argued that there was an on going duty to advise them of changes to be made to their agreements. There had been a single contract and an ongoing duty by the successor firms to review the advice given.

The court found against the Claimant.

There was no evidence of a single retainer. Nor was there any evidence of any agreement that the firm over the years was required to review all its advice previously given.

  • “The fact that there were specific commissions militates against the implication of such a general retainer. The involvement of the same personnel even over many years is unsurprising in a commercial legal context and does not give rise to any such implication either. Again, the fact that there has been a long-standing relationship between individual partners or employees and a client is simply a fact of life rather than something which gives rise to an implication of some general retainer.”

This is a sensible judgment. A solicitor is not an insurance policy for their client.

It would be an onerous task to keep under review all advice that had been given previously especially if a firm acted on a large number of matters. A client could pay for such a service but it would be expensive and few would wish to do so.


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