Solicitors’ Negligence: Failure to Communicate Counsels’ Advice

In the recent High Court judgment of Mervyn Lambert Plant Ltd & Anor v Knights Solicitors, a solicitor was found not to have acted negligently in passing Counsel’s contrary views on merits to his client, orally rather than in writing. The case is a useful reminder that claimants will not succeed in establishing that a breach of duty has occurred by their solicitor unless they can establish that no reasonably competent solicitor would have acted in that way. In this respect, the Judgment makes clear that it is entirely possible that multiple different solicitors might each reach differing views on the prospects of success of a claim, and each of those views could be entirely reasonable.

The Facts

The claimant (“claimant”), a businessman residing in Diss Norfolk, sought advice from the defendant firm of solicitors (“defendant solicitors”) to launch a judicial review challenging a recent decision of the South Norfolk Council, which granted planning permission in respect of a development site nearby the claimant’s home. The judicial review proceedings failed, and the claimant launched professional negligence proceedings against its solicitors.

The key allegations made against the defendant solicitors were:

1. They had failed to properly advise the claimant of the prospects of success of the judicial review proceedings; and
2. They had failed to pass on key advice from counsel, specifically an email from counsel dated 10th October 2016, in which serious reservations as to the merits of the claimant’s case were expressed (the “email”).

In respect of the solicitors’ failure to pass on the email advice, the claimant alleged that the judicial review proceedings were ‘doomed from the outset’, and that had the claimant been properly advised by the defendant solicitors, in particular, had they been told of counsel’s reservations as to the merits of the case, they would never have pursued the judicial review.

The Decision

Failure to advise on the merits of the claim

It was accepted that the defendant solicitors owed the claimant the long-established duty of care in tort, namely to act with the skill and care to be expected of a reasonably competent solicitor specialising in that field. The defendant solicitors also owed the claimant concurrent duties in contract, based on the express wording of the retainer, which stated the defendant solicitors were to “advise … of any circumstances or risks of which [the defendant solicitors] are aware or consider to be reasonably foreseeable that could affect the outcome of [the claimants’ case]”; and an obligation to “update” the claimant “with progress on your matter regularly”.

Dan Squires QC sitting as the Deputy High Court Judge posited that the distinction between the tortious and contractual duty in this case was negligeable, as the contractual duty did not create obligations which went above and beyond those imposed on the solicitor in tort.

It was accepted by the Court that an aspect of a solicitor’s duty of care involves taking reasonable steps to ensure the prospects of success of the litigation are accurately conveyed to the client. The Court found that in order for the defendant solicitors to be deemed negligent, the claimant would have to establish “whether no reasonably competent solicitor” would have acted as the defendant did.

The Court stated that on this ground, the defendant solicitors could have been negligent in two possible ways:

1. If they made an assessment of the prospects of success of the litigation which no reasonably competent solicitor specialising in the relevant area of law would have made.
2. If they conveyed the prospects of success of the litigation in a manner in which no reasonably competent solicitor would have done.

Importantly, a solicitor, in assessing the prospects of success of a claim, would not be in breach of their duty of care if they expressed confidence in the strength of a claim which subsequently failed at court. The fact that a solicitor may have believed a court would reach a particular conclusion, and was subsequently proven wrong, does not mean, of itself, the solicitor’s views were ones no reasonably competent solicitor could have held.

Furthermore, the Court emphasised that there can be a spectrum of perfectly reasonable professional opinion regarding the same litigation. It was entirely possible that multiple different solicitors would reach differing views on the prospects of success of a claim, and each of those views could be entirely reasonable. This rule can equally be applied to counsel. The fact that counsel may have more cautious views about the merits of a claim, does not mean it is necessarily negligent for a solicitor to be more optimistic.

Failure to pass on key advice from counsel

The Court found that there was no hard and fast rule as to how solicitors should communicate counsels’ advice to a client. The test to assess whether the solicitor’s failure to pass on advice from counsel was negligent, is the same test as applied above, namely, in failing to pass on counsel’s advice, did the solicitor act in a way in which no reasonable solicitor would have acted?

It was suggested that a solicitor could be found negligent for failing to pass on key pieces of advice from counsel to the client, if, and only if, no reasonably competent solicitor would have failed to pass on such advice. If a solicitor was expressing confident views about the prospects of success of the litigation (even if those views were not negligently held), while failing to pass on the views of counsel that were more pessimistic, that could very well constitute negligence or breach of contract. However, this allegation will always turn on the particular facts of the case.

In this case, the claimant alleged specifically that the key email from counsel, which included counsels’ reservations about the veracity of the case, was never communicated to them. This email included a “warning” from counsel to the defendant solicitors about “a number of legal difficulties” and stated that counsel “could not find any suggested legal grounds in the papers” for the furtherance of the judicial review. The defendant solicitors stated that whilst it was true that this key email was never forwarded directly to the client, the advice contained in the email was communicated to the client orally during a discussion which took place two days after the email had been received by them.

Whilst it was difficult to establish what occurred in a conversation more than five years ago, the Court was persuaded by the defendant solicitors’ evidence and that they had in fact passed on the “substance” of counsel’s advice in the email during an oral exchange with the claimant. There exists no rule of law that solicitors must provide counsel’s views in writing rather than conveying them orally to a client. Drawing upon the case of Harwood v Taylor Vinters the Court accepted that the only hard and fast rule which governs the communication of counsel’s opinion to a client, is that a solicitor should give whatever advice a reasonably competent solicitor would in the particular circumstances of the case and give it clearly and so that the client appears to understand it.

Comment

Lessons can be learnt from this case. It is clear this claim could have been avoided if the email from counsel had been forwarded on to the client. However, there may often be circumstances where directly forwarding counsels’ email to the client is not the most appropriate course of action, and the Judge drew attention to the fact that there are often “many advantages in communicating advice verbally”. This case attests to the pragmatism of sending a follow up email to the client if counsels’ views have been communicated to them orally. A clear concise email which highlights in writing the key pieces of advice from counsel, could protect solicitors from facing this type of allegation in the future.