Testamentary Capacity and Undue Influence – When does a Professional Negligence Claim arise?
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  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  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.
The recent Court of Appeal decision in Lillo Sciortino vs Marc Beaumont  EWCA Civ 786 provides useful guidance on limitation in professional negligence claims and confirms that a barrister who gave two pieces of negligent advice in respect of the same matter could be sued even though the claim in respect of the first piece of advice was out of time and statute-barred.
The long awaited Supreme Court decision of Manchester Building Society v Grant Thornton provides some much needed and useful clarification on what constitutes and amounts to “negligent” advice.
When an individual instructs a solicitor, they may research and make various enquiries to establish which solicitor is best suited to their matter, seeking to find an expert in that field. Solicitors frequently instruct barristers (counsel) as part of their client’s legal team to provide advocacy and additional expertise. Solicitors often rely on advice from counsel when advising clients. Whilst a solicitor is entitled to rely on counsel’s advice, and the more specialist the nature of the advice the more reasonable reliance will be, in doing so they need to properly consider that advice rather than simply accepting the advice without further scrutiny.
Usually, the scope of duty of care between a solicitor and a client will be set out in writing in an engagement letter, but there are some circumstances in which a solicitor may assume duties to someone other than their client, which can create problems if that party is to suffer a loss. In those circumstances, a key question is whether a solicitor owes the third party a duty of care.
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
This blog examines some of the issues which arise from giving incorrect professional advice, or failing to give advice, and sets out some practical tips to identify when professional negligence claims may arise.
Accounting firms should be bracing themselves for a rise in professional negligence claims as a result of the Covid-19 pandemic.
Solicitors and barristers owe a duty to their clients to act with reasonable care and skill at all times, not least when conducting settlement negotiations and providing advice on settlement. With the majority of claims settling outside of court, common complaints of negligence in this area include giving incorrect or negligent advice about settlement offers, failing to properly assess the value of the claim or advising a client to “under settle” a claim.
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.
Delay is a common complaint in professional negligence claims against solicitors in the context of wills and probate. For example, If a client is in poor health or advanced old age and wants to create or update their will, they might instruct a solicitor to assist with this. If the client dies before the new will can be prepared and/or executed, the beneficiaries who would have inherited, had the will been put in place before the client’s death, may look to bring a professional negligence claim against the solicitor if there has been undue delay by the solicitor in preparing the will.
Solicitors in any field of practice are under a duty to exercise reasonable care and skill when acting for clients. In wills and probate practice, that duty also extends to the beneficiaries of a testator. If the solicitor has acted in breach of that duty, which causes loss to the client or their beneficiaries, this could form the basis for a professional negligence claim against the solicitor.
A professional has a duty to exercise “reasonable care and skill” when dealing with their clients. Negligence claims against solicitors can arise for all manner of reasons. Katherine provides some examples of how a solicitor's actions within the remit of wills and estates may give rise to professional negligence.
The Supreme Court case of Edwards (on behalf of the estate of the late Thomas Arthur Watkins) v Hugh James Ford Simey (A Firm)  UKSC 54 provides useful insight in professional negligence cases as to how the Courts approach the relevance of “new” evidence i.e. evidence which was not available at the time of the underlying matter, in loss of chance cases.
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.
(1) Playboy Club London ltd (2) London Clubs International Ltd (3)Burlington Street Services Ltd v Bianca Nazionale Del Lavoro Lavoro Spa  EWHC 2613
When X arrived in London he applied for a cheque-cashing facility in order to play in the Playboy Club London Limited (“the Club”). The Club sought a reference as to X's creditworthiness. To preserve customer confidentiality, the Club made the request through a related company, the third claimant (S). The reference request was addressed to the manager of Banca Nazionale di Lavoro SPA (“the Bank”). A response, purporting to be from one of the Bank's employees (G), stated that X had an account and was trustworthy to the extent of £1.6 million in any one week. In fact, X's balance had always been nil.
Gary Barlow and two fellow Take That singers have found themselves in the spotlight this week after a judge ruled the musicians had invested in a scheme designed for tax avoidance purposes. Not only may they have to pay back millions of pounds in tax after the tribunal ruling but they have also suffered considerable reputational damage as a result.
This article first appeared in MusicWeek.
According to a provisional report prepared by Lord Justice Briggs, Chancery Division Masters are spending 14% of their time on professional negligence claims involving solicitors compared to 13% on business fraud cases. Ryan Mowat reviews the trends in professional negligence claims so far in 2013.
Kate Paley discusses a recent case against a solicitor, who delayed in carrying out the testator’s instructions to alter her Will before she died.
Given the recent and extensive amendments to the CPR, it may be useful for lawyers to remind themselves of the deadlines that apply when issuing and serving proceedings.
Negligence claims against professionals, such as financial advisors, solicitors, accountants and surveyors have been on the rise in recent years, and numbers are expected to continue to grow. This is due to an increased reliance on the advice of professionals (in both a personal and business context), claimants’ raised awareness of their legal rights, and the increasingly complex nature of work carried out. Further, in tough economic times, financial losses are often more evident.
Skip to content Home About Us Insights Services Contact Accessibility