Laura Hibberd writes on whether solicitors have a ‘duty to probe’ into potential heads of claim in fixed cost cases

In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 the Court of Appeal examined the duty of a claimant’s solicitor to undertake additional enquiries into potential special damages claims where the case was under a fixed costs regime.

In 2000, Mr. Thomas instructed the defendant solicitors in a claim for damages for vibration white finger (VWF). This was a claim which fell under the Department of Trade and Industry’s fixed costs scheme, where recoverable costs were £607. The claimant’s level of disability entitled him to general damages and a special damages claim regarding certain services: decorating, DIY, gardening, car washing, and maintenance.

Mr. Thomas received an offer in early 2001 for general damages. He met with the defendant solicitors to discuss the offer and the issue of special damages, in this meeting he advised that he could not do decorating and it was explained to him he would need evidence to support this claim. The claimant confirmed that evidence was not available and he was ‘not too bothered at all’ about such a claim and wanted the matter dealt with quickly (the attendance notes of solicitors are discussed in the judgment). The offer was therefore accepted.

This appeal concerned a later claim against those solicitors on the basis that the advice given regarding his claim for services was inadequate. The claimant suggested he would have made a claim for decorating, DIY and gardening and recovered further sums. The claim was dismissed at first instance.

The Court of Appeal found that the basic facts the claimant asserted had been established: namely the defendants did not provide an approximate valuation of the services claim; failed to inform him of the availability of an interim payment for such a claim; and treated his comments in the meeting in 2001 as putting an end to any service claim. However, the issue for the court was whether this constituted a breach of duty by the solicitors.

The claimant submitted that the solicitors should have probed matters in the hope of changing the claimant’s mind. This was not accepted by LJ Jackson, and he reiterated the previous judge’s finding that the claimant was an intelligent and articulate man who had decided not to pursue the claim and instructed his solicitors as such. Furthermore, LJ Jackson stated, “it is not the role of a solicitor to tempt the client by referring to large sums once it is clear that supporting evidence is not available”. A solicitor is not under a duty to challenge a client’s decision not to pursue a head of claim that he does not have the evidence to support – although such issues are fact-sensitive – “a client’s autonomy should be respected”.

A significant factor for LJ Jackson was that this case operated under a fixed costs regime leading him to comment that advocates and judges should not lose touch with the reality of these regimes. In light of the remuneration available, a realistic standard had to be adopted when considering the performance of solicitors in high volume, low-cost schemes. This practical approach is no doubt a welcome one for claimant solicitors.

The importance of this appeal is in its application to fixed cost work, which will gradually encompass a higher proportion of cases given the anticipated reforms expanding the scheme. Although the remuneration is better than £607, the currently fixed cost regimes are still ‘low-cost schemes’, particularly the low-value personal injury protocol claims. Thus, it seems that whilst claimant solicitors must offer clear and robust advice on potential heads of claims, ultimately it is for the client to consider and provide the instructions as to how they wish to proceed on those heads of claim knowing there can be no later comeback. Such a stance is probably bolstered if solicitors undertake a face-to-face client meeting.

Laura Hibberd’s profile is available here.