It is common knowledge that solicitors and other professionals can be held accountable if they fail to perform their responsibilities to the required standard or breach their duty of care. This includes providing negligent advice given during a retainer to act on a client’s behalf.
However, how far does this negligence stretch to a professional person providing ‘off the record’ advice? For example, via an online meeting where a comment was made off the cuff.
Recently, the Court of Appeal debated this point in the case of Miller v Irwin Mitchell LLP [2024] EWCA Civ 53.
The facts of Miller v Irwin Mitchell LLP
Miller v Irwin Mitchell LLP involved an appeal against an order made by His Honour Judge Cadwallader, in which the Appellant, Miller’s, claim for damages for professional negligence by her former solicitors was dismissed.
In May 2014, Ms Miller suffered a serious injury when she slipped on holiday in Turkey. The injury caused a badly broken leg, including an open fracture which later became infected when she returned to England. The seriousness of the infection led to Ms Miller having her lower leg amputated in November 2015.
Ms Miller contacted Irwin Mitchell LLP for their services in advising and representing her in her claim against Lowcostholidays Spain SLU (‘Lowcostholidays’). She contacted Irwin Mitchell through its ‘Legal Helpline’ on 19 May 2014 regarding her claim.
In February 2016, a letter of claim was sent by Irwin Mitchell to Lowcostholidays requesting that they notify their insurers. Letters of claim are sent on behalf of a claimant to the prospective defendant, setting out their case and requesting the defendant’s response before proceedings are pursued. Often, letters of claim can aid coming to a settlement.
Upon receipt of the letter of claim, Lowcostholidays informed their insurers immediately. In April 2016, the insurers of Lowcostholidays, HCC International Insurance Company Plc (‘HCC’) responded that the insurance policy did not cover the claim from Ms Miller. The basis of this conclusion was placed on Lowcostholiday’s failure to notify HCC of the claim, in compliance with the early notification provisions. In addition to this, Lowcostholidays went into administration in July 2016. Consequently, following these advances and advice from counsel, Irwin Mitchell concluded that there was no prospect of recovery from HCC under relevant legislative provisions (Third Party (Rights Against Insurers) Act 1930).
Ms Miller decided that, due to her irrecoverable personal injury claim against Lowcostholidays or HCC, she would bring a claim against Irwin Mitchell for professional negligence. Ms Miller alleged that she had entered into a retainer with Irwin Mitchell during the telephone call with the ‘Legal Helpline’ on 19 May 2014. As a result, she stated that Irwin Mitchell should have advised her to contact Lowcostholidays of the accident immediately. Failing that, Irwin Mitchell should have contacted Lowcostholidays themselves, immediately. If, either Ms Miller following Irwin Mitchell’s advice, or Irwin Mitchell themselves, had contacted Lowcostholidays following the conversation on 19 May 2014, HCC would have been made aware of the claim in good time, in compliance with the early notification provisions of the insurance policy. This would provide Ms Miller with coverage from the insurance policy, regardless of Lowcostholiday’s administration in July 2016.
Judge Cadwallader held in their judgment that a retainer was not expressed nor implied when Ms Miller contacted Irwin Micthell’s ‘Legal Helpline’ in May 2014, nor during the period before the letter of claim was sent in February 2016. Therefore, Irwin Mitchell had no duty to advise Ms Miller to notify the travel operator of the accident, nor to remind them to notify their insurer. Judge Cadwallader held that during the period between May 2014 and February 2016, Ms Miller was “only a prospective client of Irwin Mitchell”.
The decision in Miller v Irwin Mitchell LLP
The Court of Appeal dismissed the appeal brought by Ms Miller. In their reasoning, they agreed with Judge Cadwallader that there was no express or implied retainer formed during May 2014 via the ‘Legal Helpline’. They further purported that the parties formed a solicitor-client relationship in January 2016, shortly before the letter of claim was sent, based on the evidence submitted.
In her claim and appeal, Ms Miller put forward that, if an express or implied retainer is not established, Irwin Mitchell still owed her “an equivalent duty of care in tort” prior to the solicitor-client relationship in January 2016. The argument in support of this that Ms Miller raised was that during the telephone call to the ‘Legal Helpline’, the helpline advisor had informed Ms Miller of the 3-year limitation period she was subject to, to bring a claim for damages in a personal injury case. When providing this advice, the advisor had assumed a duty to advise Ms Miller to take all reasonable steps to protect her position in a prospective case against Lowcostholidays. The Court of Appeal rejected this argument.
Even though a solicitor retained by a client will owe a concurrent independent duty of care in tort, in a case in which there is no retainer, this is not always so. The fact that advice is provided gratuitously is not a bar to a finding of a duty of care, nor the requirement to act with reasonable skill and care, although there must be a voluntary undertaking by the solicitors to assume legal responsibility. Further, whether responsibility is assumed in any given case, and the extent of any such assumption, is to be judged objectively without the benefit of hindsight, where much will depend on the facts involved and the nature of any interactions during the relevant timeframe.
The Court of Appeal concluded that Judge Cadwallader was correct to reach the conclusions he did. The facts, as the court found them, did not give rise to a duty on Irwin Mitchell to advise Mrs Miller to take steps to ensure that the travel operator’s insurers were informed of the accident.
All professionals must mindfully consider the preliminary advice they provide to all people, whether they are formal clients or not. Failure to do so can sometimes lead to a factual matrix where responsibility and duty is argued.
Legal disclaimer
The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.
Before acting on any of the information contained herein, expert advice should always be sought.