While the vast majority of solicitors act properly and in their clients’ best interests, sometimes clients are unhappy with the outcome of their case. In some cases, this may be reasonable assertion and may give rise to a claim for professional negligence.
To be able to recover damages, you must be able to show that:
- The defendant owed you a duty of care;
- The defendant breached that duty; and
- The breach caused you to suffer loss.
The recent case of Wright v Rix and Kay Solicitors  looked at duty of care and breach of duty in particular. The judge had to look at what the claimant had instructed the solicitors to do, and whether the solicitors had acted negligently.
Pauline Wright (“the claimant”) instructed Rix & Kay Solicitors (“the defendant”) to act on her divorce petition. By way of explanation, when petitioning for a divorce, the financial aspects are dealt with separately to the petition itself. There was no suggestion by the claimant that she ever sought to instruct the defendant in relation to financial remedies.
Prior to the mediation, the defendant advised the claimant that she and her husband would need to provide full and frank disclosure as well as pension sharing orders, offsetting and maintenance. The claimant attended various mediations without representation and settled the dispute. The defendant wrote the settlement up in to a consent order for the court.
Some years later, the claimant saw an advertisement for solicitors dealing with cases where the client’s pension rights had not been properly achieved in divorce proceedings. The claimant considered that she had not been advised on the pensions aspect of her divorce settlement. She subsequently instructed solicitors and issued these proceedings against the defendant.
The crux of this case ultimately came down to the retainer (i.e. the contract) between the claimant and the defendant. There was no argument that the defendant had acted for the claimant in her divorce. However, the claimant had not instructed the defendant to advise on the terms of the financial settlement. The defendant’s position was that the mediation had taken place between the claimant and her husband without legal representation. Further, that the most the defendant was instructed to do was put the settlement into a consent order. Accordingly, the defendant had a limited retainer and the claimant had not instructed him to advise on pension sharing. As a result, the defendant applied to the court for summary judgment.
At the summary judgment hearing, the court concluded that there was ‘an absence of reality’ in the claimant pursuing the matter to trial. The court found that the terms of the retainer were clear and limited between the parties. On this basis, the court granted summary judgment to the defendant.
The judge referred to the case of Minkin v Landsberg . This case summarises the relevant principles on the extent of a solicitor’s duty to advise, which are:
- A solicitor’s contractual duty is to carry out the tasks that the client has instructed and that the solicitor has agreed to undertake.
- It is implied into the solicitor’s retainer that he will advise on matters reasonably incidental to the work that he is carrying out.
- In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case. This includes the character and experience of the client.
Let’s go back to the elements of professional negligence discussed at the beginning of the article. Once you have instructed a solicitor, a duty of care arises. This means that he must endeavour to act in your best interests and provide you with a certain standard of service, in accordance with the retainer. If a solicitor then breaches this duty (as the claimant alleges the solicitors did in the above case), and this breach consequently causes you a loss, then you may have potential claim for professional negligence.
When you instruct a solicitor, it is advisable to make sure you understand the terms and scope of that retainer. As has been seen above, a court will not find a solicitor negligent for failing to do something that he had not agreed to do in the retainer.
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