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News | Thu 1st Feb, 2024
The Court of Appeal handed down judgment today in Miller v Irwin Mitchell  EWCA Civ 53, upholding the judgment at first instance which dismissed the claim. Andrew Warnock KC and Andrew Spencer represented the successful defendant.
The Claimant was injured on a package holiday to Turkey, when she fell down some stairs in her hotel and broke her leg, eventually requiring an amputation. The Claimant reported her accident to the hotel and the tour operator was informed, but did not inform its insurers. On her return to the UK, the Claimant called the Defendant solicitor’s Legal Helpline. Some limited initial advice, including about limitation, was provided. The case was referred to the Defendant solicitor’s travel legal group, who got in touch with the Claimant very promptly and sought various documents.
The Claimant took quite some time to send the Defendant all the documents they had asked for. Eventually, around 2 years after the accident, the Defendant was in a position to send a letter of claim to the tour operator. The tour operator informed its insurers, who declined indemnity, because of the tour operator’s delay in notifying insurers of the accident, when they had been aware of the accident shortly after it occurred. In the mean time, the tour operator went into administration, leaving the Claimant unable to prosecute her underlying claim. So, instead, the Claimant brought a claim against her solicitors.
Common law duty
On appeal, the Claimant’s key argument was that, when she first contacted them, the Defendant ought to have advised her to inform the tour operator about the accident and was under a duty to do so. On the judge’s findings, had the Claimant done this, the tour operator would have notified its insurer and would not have been in breach of its notification requirements.
By advising on limitation, the Claimant contended, the Defendant assumed a duty to advise the Claimant to take reasonable steps open to her to protect her position – which included contacting the tour operator.
The Claimant argued that failing to inform the tour operator was a hidden pitfall: that if the Claimant failed to do this, it could result in the tour operator being uninsured and there being no party in a position to meet the claim. The Claimant drew an analogy with the obligation to inform the police of a criminal injury to qualify for criminal injury compensation. The Claimant stated that informing the Claimant of a 3 year limitation period gave the impression there was nothing else that the Claimant needed to do to protect her claim.
The Court of Appeal disagreed. The Claimant had no legal obligation to tell the tour operator about the accident. This had no bearing on the Claimant’s legal basis for bringing a claim against the tour operator. There were no further steps that the Claimant needed to take. Nor was informing the tour operator about the accident “reasonably incidental” to the question of limitation.
At the time the Claimant called the Legal Helpline, the tour operator either knew of the accident – in which case, the tour operator could be expected to have notified their insurers – or the tour operator did not, in which case they could not be in breach of their notification requirements.
It was of note that, at the time of the Legal Helpline call, the potential claim was for a nasty leg fracture and not the amputation (which occurred much later). This claim might be within the excess in any event.
And further, solicitors are not usually obliged to advise their clients about the risk of unenforceability of a judgment due to insolvency of the other side unless they are put on notice of financial difficulties (Pearson v Sanders Witherspoon  PNLR 110).
For all these reasons, the risk that the insurer might refuse cover because the tour operator had failed to notify it of the accident was not something of such concern that no reasonable solicitor would have failed to tell the Claimant to contact the tour operator. This was not in the legal advisor’s reasonable contemplation at this very early stage.
The judge found – and the Court of Appeal accepted – that the Claimant was entitled to rely on the advice that was provided to her by the Legal Helpline. But it was clear that this was not complete or comprehensive advice about the claim, and did not give rise to an additional duty to advise about notifying the tour operator.