The Limitations Of A Solicitor’s Duty Of Care: Miller v Irwin Mitchell (2024)

In order to establish a professional negligence claim against a solicitor, you need to prove the following:

1. A duty of care was owed,
2. Which was breached as the service provided fell below that expected of a reasonably competent and skilled solicitor, and
3. The breach caused foreseeable loss

Usually it will not be difficult to establish that a solicitor you have instructed will owe you a duty of care.

However, it is less clear whether such a duty is owed when you approach a solicitor for initial assistance and before a formal retainer is entered into.

This issue has been determined in the appeal of Miller v Irwin Mitchell LLP (2024).

The Facts

Mr and Mrs Miller went on a holiday in Turkey in May 2014. Mrs Miller unfortunately fell down a flight of stairs at the hotel on 15 May 2014.

She contacted the Defendant firm on 19 May 2014 after seeing one of their adverts on TV. She spoke to a Legal Helpline advisor who then referred this to their International Travel Litigation Group. Mrs Miller was left a voicemail and sent a letter on 20 May 2014 by the Defendant firm.

Mrs Miller developed complications which resulted in her leg being amputated above the knee in November 2015.

The matter was therefore transferred to the multitrack team in January 2016 at the Defendant firm.

A Conditional Fee Agreement was entered into between the parties on 25 January 2016 and a Letter of Claim was sent by the Defendant firm for the Mrs Miller in February 2016.

It transpired that the travel agency (Lowcostholidays) had failed to inform their insurers until March 2016 despite having been aware of the accident since 15 May 2014. The insurers therefore declined to provide cover and eventually Lowcostholidays went into administration. Following counsel’s advice, the Defendant firm informed Mrs Miller on 7 March 2017 that they could not proceed further with the claim and the file was eventually closed on 28 April 2017.

The Issues

Mrs Miller claimed that her solicitors should have advised her to notify Lowcostholidays of the claim who in turn would then have notified their insurers and they would have provided indemnity cover for the claim.

The Defendant firm claimed that no duty of care arose until the retainer was entered into on 25 January 2016.

The issues which the court were called upon to decide were:

• Whether, and if so the date on which, a contract of retainer between the claimant and the defendant was formed or a like duty assumed
• if such a retainer was formed or a like duty assumed, the terms and scope of the retainer between the claimant and defendant at the point it was formed and, if relevant, the point at which the scope of the retainer changed
• if such a retainer was formed or like duty assumed, whether the defendant had an obligation to take steps to notify Lowcost and/or advise the claimant to notify Lowcost of the claimant’s accident
• during the initial call between the claimant and the defendant on 19 May 2014; or
• on or before 8 April 2015 when the defendant received the claimant’s documents, and if so when; or
• before the letter of claim was served on 22 February 2016; and if so, when.

The First Decision

The judge initially decided on 27 July 2022 that

1. No express or implied retainer was created when Mrs Miller contended, and that the true nature of the relationship was that Mrs Miller was only a potential client of Irwin Mitchell until 25 January 2016.
2. No duty of care equivalent to that arising under a contractual retainer was owed to her until then.
3. There was no duty on Irwin Mitchell to advise Mrs Miller to notify Lowcost of the accident, or to directly remind Lowcost to notify its insurer, at any time prior to sending the letter of claim on 22 February 2016.
4. If Mrs Miller had been advised to notify Lowcost of the claim on 19 May 2014 she would have done so. Lowcost would then have notified HCC timeously in compliance with its obligations under the insurance policy and there would
   have been a 100% chance that the policy would have responded to the claim.
5. However, if the notification of the claim had happened on or after 8 April 2015, HCC would still have declined cover on the basis of late notification. He assessed the prospects that the policy would have responded at any time from and after 8 April 2015 at zero.

Mrs Miller’s case was therefore dismissed. She appealed and permission was granted.

The Appeal Decision

The Court of Appeal heard the case on 23 January 2024 and judgment was handed down promptly on 1 February 2024.

Mrs Miller raised the following main grounds of appeal:

1. The Judge ought to have found that Irwin Mitchell owed her a common law duty of care, or a contractual duty of care under an implied retainer, from 19 May 2014 onwards.
2. The Judge ought to have found that Irwin Mitchell owed and breached an obligation from 19 May 2014 onwards to advise Mrs Miller to notify Lowcost, or alternatively to notify Lowcost themselves about her accident.

As there was no retainer, the court had to decide whether there had been an assumption of responsibility and if so, what the scope of any duty of care was.

The court accepted that there was “a voluntary assumption of responsibility by Irwin Mitchell for the limited task undertaken, i.e. of providing preliminary legal advice of a limited and general “high level” nature to a prospective client”

Much was made about the telephone call in May 2014 when advice was provided on limitation.

But the court held that despite an assumption of responsibility, it could not be extended to include “a responsibility to advise her to take a step to safeguard against the risk that the tour operator already knew about the accident but nevertheless would not notify its insurer timeously, even if (which I do not accept) that risk would have been within the reasonable contemplation of a legal adviser in her position and at the very first point of contact with the prospective client”

Mrs Miller’s appeal was therefore dismissed

Final Words

Prospective clients seeking legal advice have to be clear that until such time as a formal retainer has been entered (or positive legal advice has been provided which can be relied upon), they are still in a precarious position and some way off to getting their case started.

It is therefore important to ensure that any solicitor assessing a potential claim is provided all the relevant information and documentation to enable this process to be concluded as soon as possible, especially if limitation is a concern.

Solicitors should also be careful about how much advice is provided before a formal retainer in entered into to avoid unnecessary reliance and assumption of responsibility to only a prospect client.

If you need legal advice about Professional Negligence claims, contact our Dispute Resolution experts on 0330 822 3451 or request a callback.