The Limitations Of A Solicitor’s Care: Miller v Irwin Mitchell (2022)
In order to establish a professional negligence claim against a solicitor, you need to prove the following:
- A duty of care was owed,
- Which was breached as the service provided fell below that expected of a reasonably competent and skilled solicitor, and
- The breach caused foreseeable loss
Usually it will not be difficult to establish that a solicitor you have instructed will owe you a duty of care.
However, it is less clear whether such a duty is owed when you approach a solicitor for initial assistance and before a formal retainer is entered into.
This issue was recently discussed in the case of Miller v Irwin Mitchell LLP (2022).
Mr and Mrs Miller went on a holiday in Turkey in May 2014. Mrs Miller unfortunately fell down a flight of stairs at the hotel on 15 May 2014.
She contacted the Defendant firm on 19 May 2014 after seeing one of their adverts on TV. She spoke to a Legal Helpline advisor who then referred this to their International Travel Litigation Group. Mrs Miller was left a voicemail and sent a letter on 20 May 2014 by the Defendant firm.
Mrs Miller developed complications which resulted in her leg being amputated above the knee in November 2015.
The matter was therefore transferred to the multitrack team in January 2016 at the Defendant firm.
A Conditional Fee Agreement was entered into between the parties on 25 January 2016 and a Letter of Claim was sent by the Defendant firm for the Mrs Miller in February 2016.
It transpired that the travel agency (Lowcostholidays) had failed to inform their insurers until March 2016 despite having been aware of the accident since 15 May 2014. The insurers therefore declined to provide cover and eventually Lowcostholidays went into administration. Following counsel’s advice, the Defendant firm informed Mrs Miller on 7 March 2017 that they could not proceed further with the claim and the file was eventually closed on 28 April 2017.
Mrs Miller claimed that her solicitors should have advised her to notify Lowcostholidays of the claim who in turn would then have notified their insurers and they would have provided indemnity cover for the claim.
The Defendant firm claimed that no duty of care arose until the retainer was entered into on 25 January 2016.
The court was called upon to decide the following preliminary issues at a 3 day trial:
i) Whether, and if so the date on which, a contract of retainer between the claimant and the defendant was formed or a like duty assumed
ii) if such a retainer was formed or a like duty assumed, the terms and scope of the retainer between the claimant and defendant at the point it was formed and, if relevant, the point at which the scope of the retainer changed
iii) if such a retainer was formed or like duty assumed, whether the defendant had an obligation to take steps to notify Lowcost and/or advise the claimant to notify Lowcost of the claimant’s accident
a) during the initial call between the claimant and the defendant on 19 May 2014; or
b) on or before 8 April 2015 when the defendant received the claimant’s documents, and if so when; or
c) before the letter of claim was served on 22 February 2016; and if so, when.
The judge concluded that there was no express contract between the parties on 19 May 2014. The TV advert was not an offer to provide legal service, at best it was merely an invitation to treat.
“Merely by telephoning, Mrs Miller cannot be regarded as agreeing to enter into a contract with the defendant. Moreover, the supposed offer in the advertisement contained none of the terms which would have been required to govern a contract of retainer.
Such limited advice as was given to Mrs Miller at that stage was, in my judgment, advice in contemplation of a potential retainer, and not advice referable to one which had come into existence there and then.
Passing the case to the ITLG for someone to get back to Mrs Miller was not an indication that a retainer had been agreed, but that it had not.
The fact that time charges had started to be recorded is nothing to the point. No agreement had been made with Mrs Miller that she should be responsible for the defendant’s fees… At that stage, the fees would not have been Mrs Miller’s responsibility. They might only become her responsibility if a retainer was subsequently entered into on the footing that they would be.”
The judge also concluded that there was no implied retainer.
The fact that she was referred to as ‘the client’ and a file was opened against which time was recorded for her were all internal matters which she was unaware of.
Letters sent to Mrs Miller referred to the fact that documentation needed to be obtained and reviewed and that no further action was being taken or advice being provided in respect of limitation. They required this information to decide whether or not to enter into a retainer.
The judge also declined to find that a duty of care had arisen in tort. He did not accept that there was a client-solicitor relationship because “Mrs Miller had sought and received advice, and the defendant was treating her as a client by giving a file reference, with a supervising partner, referring to her as a client, giving her advice as a client, obtaining Counsel’s advice, updating her as a client and so on, and logging fees as work in progress.
The true nature of the relationship until was that Mrs Miller was only a potential client of the defendant until 25 January 2016 and no duty of care equivalent to that under a retainer was owed to her until then.
Mrs Miller was certainly entitled to rely on such advice as she was given, but she was not advised to ensure the insurers were informed, and the facts to which I have referred did not give rise to a duty on the defendant to provide such advice. Her undoubted lack of experience in legal matters does not change that.”
In respect of the other preliminary issues it was decided:
ii) upon there being a retainer of like duty, there would have been a duty to advise the client about reminding an opponent to notify that insurance but only just at the point where it would have been reasonably possible to send a letter of claim or a letter of notification
iii) “If such a retainer had been formed or a like duty assumed, the defendant had an obligation to take steps to notify Lowcost and/or advise the claimant to notify Lowcost of the claimant’s accident when the letter of claim was served on 22 February 2016 but not before.”
Prospective clients seeking legal advice have to be clear that until such time as a formal retainer has been entered (or positive legal advice has been provided which can be relied upon), they are still in a precarious position and some way off to getting their case started.
It is therefore important to ensure that any solicitor assessing a potential claim is provided all the relevant information and documentation to enable this process to be concluded as soon as possible, especially if limitation is a concern.
Mrs Miller has in fact been granted permission to appeal so we will have to watch this space as to whether the limitation of a solicitor’s duty will remain so limited.