When you instruct your solicitor to do something, you will have retained them to do this. Your client care letter should spell this out.
Generally, a solicitor will have no contractual duty to go beyond this. However, in the absence of a retainer, they may be considered to have assumed responsibility.
Last summer, the Court of Appeal in London considered a case where the solicitor either provided advice beyond the retainer or didn’t.
Background
The solicitors had acted for a client in purchasing two high-value properties in Fulham in 2012. The properties shared a boundary and were to be developed together. The client sold on one of the properties to the second claimant later that year.
In 2014, the client discovered that there were electricity cables running beneath the properties. They reported this to the solicitors, asking specific questions – which were answered in turn.
By 2018, the client was contending that it had impliedly requested to know of any rights and remedies that they may have against the utility company that laid the cables. The solicitors responded that they had been asked and had answered three discrete questions after the conclusion of their retainer and had not assumed responsibility to advise on wider remedies.
At trial, the judge found for the client. The solicitors appealed to the Court of Appeal.
Judgment
The Court of Appeal grappled with the question of what services the solicitors had agreed to provide. Where a retainer had ended, this question would be more difficult to answer.
There was no contractual duty to advise, and so the scope of the assumption of responsibility was, on the facts, key. The solicitors were not asked to, and did not, comment or advise on the possibility of having the cables moved at someone else’s expense. The client’s questions and the solicitors’ answers “…had all been backward, not forward, looking.”
The solicitors had not assumed a duty to advise the client on wider rights and remedies.
Comment
This decision is helpful in informing other cases where a client might ask a question after the retainer has ended or where a solicitor is asked to advise on something beyond the scope of the agreed retainer.
The claimants were considered ‘sophisticated clients’ and, as such, must be clear if they want advice on a specific matter. The Court is unlikely in such cases to impose broad obligations on solicitors.
It is not uncommon for clients to ask questions peripheral to the retainer of their solicitor, surveyor, or accountant. This could be months or years post-completion. What does your retainer say?
For more information about this article or any other aspect of property litigation and dispute resolution, contact your Napthens Solicitors in Preston, Liverpool, Blackburn, and across the North West today.
