The Technology and Construction Court (“TCC”) has recently considered whether a firm of solicitors was under an implied duty to advise a client to issue proceedings.

This decision concerns a claim brought by Simon Hodgson (the “Claimant”) against Richard Wilson Solicitors Limited (formerly Richard Wilson & Co) (the “Defendant”). The Claimant alleged that the Defendant had failed to prepare and issue proceedings against three entities (the “Third Parties”) or failed to advise him to issue such proceedings.  The Third Parties were a firm of architects known as John Falconer Associates (“Falconers”), a stonework specialist known as Rhodes Partnership (“Rhodes”) and a firm of chartered surveyors known as CP Bigwood or Bigwoods (“Bigwoods”).

The action brought by the Claimant arose out of the construction of a property at Church Brampton, Northampton (the “Property”) which ran into difficulties. The Claimant contended that had he been advised by the Defendant to issue proceedings against the Third Parties before the expiry of the limitation period, he would have been able to recover some or all of his losses arising out of the defective work. The Claimant pleaded his losses against Falconers and Rhodes as being in the region of £215,000 and against Bigwoods as being in the region of £872,000.

The Defendant’s terms of business pursuant to which the Claimant was engaged described the matter it was instructed on as “Various different issues in connection with your construction dispute”. The Claimant accepted that there were no express instructions given to the Defendant to issue proceedings against the Third Parties and, accordingly, the issue to be decided by the TCC was limited to the question of whether the Defendant was under an implied duty to advise the Claimant to issue proceedings against the Third Parties.

The Decision
Though the Defendant’s retainer was considered by the TCC to be very wide, it was not found to impose on the Defendant an express or implied duty to advise upon each and every matter which the Claimant from time to time referred to in his emails sent or copied to the Defendant which might be said to relate to the construction dispute.

On the facts, the TCC found that the Defendant’s retainer was defined by matters drawn to the Defendant’s attention on which the Claimant wanted the Defendant’s advice. The fact that the Claimant had expressed a view about the potential claims against the Third Parties did not, in the TCC’s opinion, give rise to “… an implied duty to consider that opinion, let alone the wisdom or otherwise of commencing proceedings”. The Claimant was considered by the TCC to have floated a large number of possible claims in his various communications with the Defendant, because he was “disorganised and lacked focus”. The TCC considered what was required of the Defendant was to bring matters into focus, by identifying possible claims, considering their merits and concentrating on those which had a good chance of success and were likely to achieve a significant recovery. The TCC found that this had occurred at a conference in March 2007 attended by the Claimant, counsel and the Defendant.

The TCC recognised that before the issue of proceedings, the Defendant would have had to have considered the merits of the potential claims against the Third Parties which would have itself required express instructions from the Claimant. The Claimant was said to have been “… well aware of this requirement”, having been so advised by counsel. As regards the importance of limitation, the Defendant was found to have set this out in an exchange of emails with the Claimant. The Claimant was considered by the TCC to have appreciated the significance of limitation and there was therefore to be no criticism of the Defendant’s advice to the Claimant in this regard.

The claim was dismissed.

Though the decision of the TCC turns on its own facts, it demonstrates the importance of identifying the scope of a solicitor firm’s retainer when assessing allegations of negligence.

For further information, please contact Georgina Squire or the Partner with whom you usually deal.