Professional Negligence:
the importance of the written word

29 July 2020

All professionals are under a duty to exercise skill and care when acting for clients. In particular, a professional is judged by the standard of a reasonably competent professional specialising in the area in which they hold themselves out as having expertise in. If the professional fails in this duty then there could be a potential claim for negligence. One area of negligence where we frequently see negligence claims relates to issues around the scope of work agreed between a client and the professional. The purpose of this blog is to briefly examine some of the issues which arise from this.

A key part of any negligence claim is establishing that a duty of care exists between a professional and their client. In particular, one issue we frequently encounter when advising potential clients is a lack of clarity around what the professional was instructed to do and whether in acting for their client there has been a breach of their duty of care.

When advising clients on negligence claims, one of the documents we ask about at the outset of any claim and which is key to negligence claims, is the retainer or engagement letter. In relation to this, we expect to see a clear, written letter of engagement or retainer setting out the scope of the services agreed with the client. It should also say what the professional will not do (for example give advice on particular matters, such as tax for solicitors). All too often we see engagement letters which are vague as to the scope of services being performed, or even worse there is no engagement letter at all.

The scope of work should also be regularly monitored and if it becomes clear that the scope has changed then this should be addressed either by sending an update to the engagement letter, a written update or at the very least it should be discussed with the client and recorded in an attendance note.

Ultimately, if there is any uncertainty about the scope of the professional’s instruction and there is no written record of this and/or a vague retainer letter or other document and there is a subsequent dispute as to what he/she was instructed to do, the professional will be in difficulty and at a disadvantage should any claim arise from this. We frequently raise this argument when acting for clients where there is a lack of or no written record of the scope of work agreed. This approach was confirmed in the case of Griffiths v Evans [1953] in which a solicitor and his former client disputed the terms on which the solicitor had been engaged, with particular reference to the scope of the advice provided to the client. The judge in the case commented that “If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.” Although this is a relatively old case it is still perfectly applicable law.

Please also see our previous blog on this issue which highlights the importance of clear advice and tightly drafted retainers.

However, clients do need to exercise caution and understand that there may be circumstances where the opposite is true i.e. the retainer is clear on what the professional was instructed to do and so any resulting alleged negligence may be difficult to prove. This was the position in case of Wright v Rix and Kay Solicitors [2017] where the Court provided judgment in favour of solicitors sued for negligence by a client who said the solicitors should have advised beyond the terms of the agreed retainer.

In this claim a solicitor was instructed to act for the claimant in her divorce petition and the estimate of costs for this work was quoted as £500 plus VAT and disbursements. Separately to this work, the claimant told her solicitor that she was going to enter into mediation with her husband in relation to various financial matters. The claimant’s solicitor was not involved in the mediation and the claimant ultimately reached a settlement with her husband. Subsequently, the claimant alleged that her solicitors were negligent as they failed to properly advise her on financial matters relating to the mediation and settlement. The Judge having considered the documentary evidence (i.e. the solicitors file) in this case commented that:

it is very clear that the terms of the retainer entered into between the parties were limited and I am satisfied that the defendant carried out the terms of their retainer and carried out the work which they agreed to do. It is clear that they did not give any overall financial advice. It is equally clear they were not in a position to do so".

This case also highlights the importance of considering not only the written retainer entered into at the outset of a claim but the entirety of the file. The retainer acts as the starting point for considering what the professional instructed to do but the file should clearly evidence what work was carried out and what advice was provided. Again, if there is a lack of written advice the professional will be at a disadvantage.

Consideration of the retainer and scope of the services being undertaken is only one part of establishing whether a client has a potential negligence claim. If you believe that you have a potential negligence claim and would like an initial call to discuss this please get in touch with us to discuss this further.

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