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Another “Failure to Advise” Case: Solicitor’s Negligence Recast?

Articles | Mon 7th Feb, 2022

1CL’s expertise in professional negligence cases is well-known, and in this recent case, a useful exploration of the solicitor’s duty to advise clients as to the merit of their litigation casts further light on how the courts will approach the issue. John Bryant represented the Claimant in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB) – a case that contains important reminders of the duty of solicitors to convey the risks of litigation to clients, but also that the fact that an action is unsuccessful does not mean that the lawyers involved were negligent.

It is trite that solicitors owe their clients dual duties both in contract and in tort. Often, attempts are made to extend or embellish these duties so as to give rise to a specifically pleaded breach, or it is pleaded that one duty (the tortious) is more extensive… but as the Judgment made clear, these attempts lack merit: “The express contractual obligations were to update the Claimants on the progress of their case and whether the likely outcome justified the likely costs and risk, and to advise on any circumstances that could affect the outcome of the case. It is difficult to see how those obligations, when applied to ongoing or potential litigation, differ from the tortious duties owed by solicitors.”

The Judgment also explored the tension between the views of Counsel and solicitor, especially when there is any disagreement between the two. He said: “… that  “[two] lawyers may hold differing opinions with neither [being] unreasonable.” That is true for different views held by different solicitors. It is also true of different views held by counsel and a solicitor. The fact that a barrister instructed in a case may have more cautious views does not mean it is necessarily negligent for a solicitor to be more optimistic…”

On 28th January Dan Squires Q.C. sitting as a Deputy High Court Judge, handed down his judgment in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB).

The outcome of the case turned on the reliability of the each of the main protagonists, respectively a businessman and the solicitor specialising in planning law he had instructed in judicial review proceedings aimed at preventing development of a large grain store in Norfolk.  Those proceedings never got beyond the permission stage and, having expended hundreds of thousands of pounds in costs, the disappointed client sued the solicitor’s firm, making a number of allegations of negligence.  The main allegation – and in the result the one on which the case turned – was that the solicitor had failed to pass on to the client the views of specialist counsel set out in e-mails to the firm.  Counsel, it was alleged, almost from the outset had been pessimistic about the prospects of success, in contrast to the solicitor who was consistently optimistic.  In the most important early e-mail counsel had said that he thought the JR application was “weak” and at the time could not “find legal grounds…in the papers.”  The client’s evidence was that, had he been told what counsel thought, he would immediately have withdrawn instructions to pursue any application for judicial review.

The solicitor accepted that at no time had he forwarded any of counsel’s e-mails.  As for the crucial e-mail, he said that in a conversation with his client two days after receiving it he conveyed its purport and so discharged his duty both his express contractual duty and his tortious duty of care.  The judge accepted that evidence, albeit it was not in his witness statement and he confessed to having remembered the conversation only after the start of the trial.

Apart from an insight into how judges approach conflicts of evidence the judgment is useful in setting out the relevant law, in particular that relating to a solicitor’s duty to relay to his or her client the views of counsel.  The judgment also deals with the duty of a solicitor in cases where his or her opinion of the prospects of success differ from those of counsel.  Paragraphs 7 to 16 are worth reading.

The judge accepted that a solicitor could be in breach of duty for failing to pass on the views of counsel on the prospects of success of a claim, even if his or her own opinion was more optimistic.

“There is, however, no particular or distinct legal test for assessing whether there has been a breach of duty in that regard, and the issue is to be approached as in any other claim of solicitor’s negligence. The question is whether, in failing to pass on counsel’s views, or in the manner those views were conveyed, the solicitor acted in a way no reasonably competent solicitor would have done. It was not suggested by the Claimants that there is some rule, derived either in tort or from the contract in the present case, pursuant to which any failure to pass on counsel’s advice is per se a breach of duty, or that that such advice must be passed on in some particular form. The question remains whether no reasonably competent solicitor would have acted as the Defendant did in the way in which advice was passed on to a client.”

Citing Harwood v. Taylor Vinters (a firm) [2003] EWHC 471 (Ch) the judge pointed out that there was no rule of law that solicitors must provide counsel’s views in writing rather than to convey them orally to a client.  He said, “There may well be advantages in passing on counsel’s advice in writing, but no rule that is always required.”

The judge mentioned one of the obvious advantages at the end of his judgment:

“…with the benefit of hindsight, things could have been done differently and that advice and other information that was conveyed, on occasions, orally could have been provided in writing. That may have avoided this litigation”

How true.

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