Solicitors are not under a duty to challenge client instructions

The Court of Appeal recently gave judgment in Grant Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303, that concerned an appeal by a Claimant against the dismissal of his claim against his former solicitors for professional negligence. The judgment addresses whether solicitors are under a duty to advise about heads of claim when acting in high volume, fixed costs schemes for low value personal injury cases, which the client has said he does not wish to pursue and cannot provide supporting evidence for.

Background:

The facts, in brief, were as follows. The Appellant worked as a coal miner from 1974 to 1991. In March 2000 the Appellant instructed the Respondent to make a claim against the Coal Board for Vibration White Finger (“VWF”). Miners who develop VWF are entitled to claim damages against their employers for breach of statutory duty and/or negligence.

Given the increasing number of VWF claims, in 1999 the Department of Trade and Industry (“DTI”) set up a scheme to handle miners’ claims for VWF that operated at modest cost. A questionnaire and medical examination would be completed by a Claimant. A report was prepared by a doctor and submitted to the DTI’s claim handlers. If appropriate an offer would be made for general damages (pain, suffering and loss of amenity and any handicap on the labour market). If that offer was not accepted, the Claimant could pursue a claim for special damages (for assistance with domestic tasks). A Claimant who elected to claim for special damages would receive an interim payment and those assisting with domestic tasks would be contacted and questioned.

The Appellant had a 42 minute meeting in person with Ms Kinsey, a solicitor at the Respondent firm. The DTI scheme was explained to the Appellant, he completed the questionnaire and had a medical examination. The medical examination revealed that that the Appellant’s injuries entitled him to claim both general and special damages (if assistance was given for decorating, DIY, gardening, car washing and car maintenance). The DTI scheme made an offer to the Appellant in the sum of £10,373.00, which did not include an amount for special damages. The Respondent firm wrote to the Appellant highlighting this point, suggesting that the Appellant considers making a claim for special damages as “the amount of compensation payable in such cases can be significant”.

The Appellant discussed the offer with Ms Kinsey, but he was reluctant to pursue a special damages claim as although he had received assistance with various tasks from friends, he had paid them ‘cash in hand’ and so would not be able to provide evidence of the services they had provided. The Appellant told the Respondent that he was “not too bothered at all” about claiming for special damages and would accept the offer made for general damages. The Appellant received a cheque for £10,482.72 in full and final settlement of his claim, including interest, in February 2001.

At first Instance:

In 2008, the Appellant saw an advert by a firm of solicitors (Mellor Hargreaves) suggesting that thousands of ex-miners have had VWF claims settled for much less than they should have received. The Appellant saw Mellor Hargreaves, sought advice and issued proceedings against the Respondent firm contending that, if properly advised, he would have made a special damages claim and would have recovered £16,654.00. This sum was claimed, plus interest, in the pleadings. The judge at first instance dismissed the claim.

The Appellant sought leave to appeal to the Court of Appeal. The Grounds of Appeal were that the Respondent firm were in breach of duty as they:
1) Failed to provide an approximate valuation of the claim for services;
2) Failed to inform him of the availability of an interim payment in the event that a special damages claim was pursued; and
3) Treating the ‘cash in hand’ concerns as putting an end to the special damages claim.

The Court of Appeal held:

1) In any professional negligence action, the court must concentrate upon those acts and omissions which are alleged to constitute actionable negligence (para 31);
2) The question was not how far a solicitor should travel beyond the confines of a retainer, but rather the question is whether the solicitor should fulfil the original retainer, in circumstances where the client has closed down one avenue of enquiry (para 34);
3) The Appellant was, as the judge at first instance found, an “intelligent and articulate man”. He knew his own mind and decided not to pursue a claim for special damages. “A solicitor is not necessarily under a duty to challenge that decision or to try and change the client’s mind” (para 42); and
4) That the claim was a modest one, being run under the fixed costs regime. In high volume, low value personal injury cases for fixed costs, there must be a sensible limit upon what the Court can expect solicitors to do in such cases. While solicitors must still exercise reasonable skill and care in advising clients and pursuing claims, solicitors cannot be expected to “turn over every stone and to pursue avenues of enquiry which the client has closed down” (para 46).

Comment:

The Court held that the Respondent solicitors were not in breach of duty. Claimant solicitors will no doubt welcome the decision as investigative enquiries can be kept to a minimum when a client, with reasons or some justification, does not wish to pursue a head of claim. The Court of Appeal judgment confirms that the autonomy of a client with full capacity should be respected.

The Court of Appeal was highly critical of Mellor Hargreaves’ conduct stating that their advice “turned [the Appellant’s] head” so that he was “prepared to advance incorrect assertions” (para 51). The Court of Appeal affirms that “the civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements”.

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