Is a solicitor under a duty to warn their client of risks falling outside their retainer?

17 January 2019

The Court of Appeal decision in Cathal Anthony Lyons v Fox Williams LLP [2018] EWCA Civ 2347 has provided welcome guidance on a solicitor’s duty to advise their clients on potential risks and confirms that no such duty exists in respect of matters falling outside a solicitor’s retainer.

The Defendant firm, Fox Williams, was instructed by the Claimant to advise him on whether the serious injuries he suffered as a result of a motorcycle accident in 2006 were covered under his employer’s Accidental Death and Dismemberment (AD&D) insurance policies.  The Claimant was also seeking to claim under his employer’s Long-Term Disability (LTD) policies but the engagement letter provided by the Defendant did not refer to providing advice under the LTD policies (only the AD&D policies).

The Claimant subsequently sought to argue that the Defendant had not advised him on his potential claims (or at the least warned him about the risks) relating to the LTD policies. He brought a claim in negligence against the Defendant as any claims available to him under the LTD polices were lost as they became time barred in 2010.

At first instance it was held that the Defendant had not breached its duty of care as it was never part of the Defendant’s retainer to advise on potential claims under the LTD policies and how they should be preserved or pursued.  This finding was unanimously upheld by the Court of Appeal and the Claimant’s appeal was dismissed.

Whilst the Court recognised that cases like Minkin v Landsberg [2015] EWCA Civ 1152 are often cited as authority in support of a legal duty to warn…‟they are in fact decisions about the scope of a solicitor’s duty based on a particular retainer” and such cases are not “authority for the proposition that the solicitor is required to carry out investigative tasks in areas he has not been asked to deal with however beneficial to the client that might in fact have turned out to be.” It was held that the Defendant could not have advised on the LTD policy or any relevant time limits unless it had the documentation relating to the policies and had the opportunity to properly review these. Therefore it was held the Court at first instance was right to reject the Claimant’s case based on a duty to warn.

This case provides helpful guidance on the duty placed on solicitors to advise clients on matters outside their retainer and in particular the fact the “the solicitor’s obligation to bring to the client’s attention risks which become apparent to the solicitor when performing his retainer does not involve the solicitor in doing extra work or in operating outside the scope of his retainer”

About the author

Jemma Brimblecombe is a Senior Associate in the Dispute Resolution DepartmentJemma has a wide range of experience in dealing with a variety of commercial disputes, including breach of contract, breach of trust and contractual disputes. Jemma also has experience of dealing with civil fraud claims.

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