Professional negligence claims - requirement for clear advice and terms of engagement

26 February 2016

When a client choses to retain the services of a solicitor (or other professional person) they are relying on their specialist expertise to help them get the best possible outcome. A professional has a duty to exercise “reasonable care and skill” when dealing with their clients. A failure to meet this standard, giving rise to a mistake that a reasonable professional person working in the same field would not have made, could give rise to a negligence claim if the client has suffered a financial loss as a consequence of the mistake.

Negligence claims against solicitors can arise for all manner of reasons but common themes are:

  • Failing to give adequate advice;
  • Missing limitation dates or court imposed deadlines;
  • Suing the wrong party;
  • Errors in drafting contracts;
  • Under-settling a claim;
  • Failing to draft a will properly or administering an estate incorrectly.

Recent Case Law

Recent case law has seen the court reinforcing established principles and highlighting the importance of clear advice and tightly drafted retainers.

Brook Properties (Birmingham) Ltd v Alton & Co [2016]

In this case, the court assessed the extent to which a solicitor must ensure that a client understands the advice that they have given.

Mr Irfan and Mrs Parveen (husband and wife), agreed to lend Mrs Parveen’s uncle £700,000 (to redeem an existing charge on his property and avoid repossession) in exchange for an arrangement fee of £100,000, 10% interest and security over the uncle’s property. Mr Irfan and Mrs Parveen acquired the Claimant company, Brook Properties (Birmingham) Limited to be the vehicle for the loan. The Claimant instructed the Defendant, Alton & Co, to act on its behalf in connection with the loan.

Prior to finalising the loan, the Defendant became aware that in addition to the exiting charge on the uncle’s property, there was also a restriction on the property preventing the disposition of the estate without the consent of the Serious Fraud Office (who were at that time investigation the uncle’s affairs). For this reason the Defendant advised the Claimant in a letter sent by fax not to proceed with the loan and followed up with further advice by phone. The Claimant’s instructions were that the uncle was seeking to resolve matters with the SFO and to proceed with the loan, which was duly completed and a charge registered against the property in its favour. The charge was subsequently removed by Crown Court Order.

The Claimant asserted that the Defendant had failed to advise them that the restriction placed on the title by the SFO would take precedence and that they had not received the written advice. Moreover, Mr Irfan and Mrs Parveen did not speak good English and they may not have understood the Defendant’s advice.

The Court dismissed the claim finding:

  • It was reasonable to believe that the Claimant Mr Irfan and Mrs Parveen spoke fluent English and had understood the advice. Newey J referred to the decision in Kandola v Mirza [2015] which states that “the solicitor is not a guarantor of his client’s subjective understanding, and will have fulfilled his duty if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he didnot in fact understand what was said”;
  •  It was probable that the letter of advice had been received and there could therefore be no question that the Claimant had been advised about the existence of the restriction and the probable effect on the security given;
  •  In any case, the Claimant was not able to demonstrate a causative link between the alleged breach of duty and the loss. Newey J considered that they would have proceeded with the loan in any event as a consequence of the familial relationship.

This case emphasises the importance of ensuring that all advice given is clear, in writing and understood by the client.

Minkin v Landsberg [2015]

This was an appeal by the Claimant, Mrs Sharon Minkin, in a solicitor’s negligence action against the dismissal of her claim on liability. The central issue of the appeal was whether the duties of the Defendant, Ms Lesley Landsberg (a solicitor practising as Barnet Family Law), were limited to the extent that she asserted and that the court of first instance had held.

The Defendant was instructed to draft the terms of a financial remedies consent order agreed between Mrs Minkin and her ex-husband, Mr Gary Minkin, following divorce. Ms Lansberg was not instructed to advise on the terms of the order, which had been negotiated directly between Mr and Mrs Minkin. Mrs Minkin subsequently regretted agreeing the terms of the order and made a claim for professional negligence against Ms Landsberg on the basis that she had failed to advise or warn against entering into the consent order. The court of first instance dismissed Mrs Minkin’s claim on the basis that the retainer was limited and Ms Landsberg had no duty of care to advise on the merits of the underlying agreement.

The Court of Appeal upheld the decision. Jackson LJ summarised the applicable principles as follows:

  • A solicitor's contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake.
  • It is implicit in the solicitor's retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out.
  •  In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client.
  • In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client.
  • The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor's retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.

Antonio Caliendo (2) Baranaby Holdings LLC v (1) Mischon de Reya (a firm) (2) Mischon de Reya LLP 2016

Former Queen’s Park Ranger’s Chairman, Antonio Caliendo, and Barnaby Holdings LLC, bought a claim against the firm of solicitors Mischon de Reya in relation to the sale agreement  of a significant shareholding in QPR Holdings Ltd to Sarita Capital Investment Ltd (a vehicle for Flavio Briatore) and Bernie Ecclestone on 1 September 2007 (“the Agreement”). The Claimants contended that the terms of the various documents which were entered into by the parties to the Agreement differed materially, and to the detriment of the Claimants, from the terms which Mr Caliendo had instructed Mishcon de Reya to implement on their behalf.

Mishcon de Reya denied that it was retained by the Claimants or assumed any duty to the Claimants. Moreover, the Claimants had suffered no loss, or were contributorily negligent. Mishcon de Reya also took issue with a number of the key factual foundations for the Claimants' claims.

Arnold J held that Mischon de Reya had not been retained, expressly or impliedly, to act for the majority shareholders of QPR in the sale of their interest in the football club however they did owe a limited duty arising from an assumption of responsibility. Mischon de Reya had not acted in breach of that limited duty and the breaches of duty complained of did not in any event cause the claimants any loss.

Arnold J found that Mr Caliendo was not a witness on whose evidence he could safely rely. He said that the case “involved arguments of legal ingenuity but no merit”.

This case serves as a further reminder of the importance of ensuring that the solicitor/client retainer is drafted in clear terms and that the scope of the solicitor’s duty of care in unambiguous..

For further information about bringing a professional claim see our Professional Negligence FAQ’s.

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