Court of Appeal decision serves as a reminder of the importance of the scope of solicitor's retainer

The Court of Appeal has recently handed down its unanimous decision in the professional negligence case of Lyons -v- Fox Williams LLP [2018] EWCA Civ 2347.  At first instance, the claimant's claim against the defendant firm of solicitors was dismissed, a decision which was upheld by the Court of Appeal.  

The facts were relatively complex, but ultimately the case revolved around the terms of the defendant's retainer with the claimant agreed in 2007.  The defendant firm had been instructed to advise the claimant in relation to his rights under an insurance policy following a serious accident in 2006 - in particular under his insurance cover for accidental death and dismemberment.  The issue in the case was whether this retainer also extended to advising him of rights under a long-term disability policy that the claimant also possibly had the benefit of, as these became time-barred in 2010 without a claim having been made.    

At first instance, the judge found in favour of the defendant and did not accept that the defendant was required to advise the claimant about claims under the long-term disability ("LTD") policies (notwithstanding that these had been sent to the defendant) under the terms of its retainer.

The Court of Appeal unanimously upheld this decision and dismissed the appeal.  Lord Justice Patten, giving the leading judgment, found that:

  • The solicitor at the defendant firm "could not have advised [the claimant] about his rights under the LTD policies or any relevant time limits in relation to the claims unless he had carried out a thorough examination of the policies and a certain amount of legal research". The judge at first instance had found that the defendant was never instructed to do this and permission to appeal this point had been refused.
  • As the solicitor at the defendant firm was never instructed to advise on the LTD policies, he "cannot have been under a duty to examine them in order to find out whether the position taken by [the claimant's employer at the time of the accident] or the insurers was correct and whether anything needed to be done to prevent the claims becoming time-barred".

Whilst other decisions which "are often cited as authority in support of a legal duty to warn.…are in fact decisions about the scope of a solicitor's duty based on a particular retainer".

This case serves as a reminder of the importance of analysing the scope of the retainer when considering a claim against a solicitor.  In many cases, this will be clear and straightforward - for example if the solicitor was instructed to do something and simply failed to do it - but more careful analysis will be needed when there is a more complex factual matrix.

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