This finding comes as a result of a dispute between Shepherd Construction and its solicitors, Pinsent Masons LLP. Shepherd had retained the firm (and before that, one of its pre-merger predecessors) to advise on disputes with sub-contractors and to draft standard-form sub-contracts during the period from 1989 to 2008. The contracts took advantage of a loophole in applicable legislation, which was closed off in 2002 but which the firm did not subsequently point out. Shepherd sued, arguing that there was a single contract with the firm which imposed an ongoing duty to advise on changes to the law: Shepherd Construction Ltd v Pinsent Masons LLP [2012] EWHC 43 (TCC).

Akenhead J of the English Technology & Construction Court agreed with the firm that it was not possible to construct a single, overarching retainer out of multiple engagements made with individual lawyers and successive incarnations of the firm. A duty to revise previous advice would arise where it was the subject of a specific retainer to that effect, but it would be ‘commercially and professionally worrying’ to require professionals to have to revisit all previous advice and services. The answer might be different where the lawyer is solicitor for a family and knows, for example, that an impending re-marriage would invalidate an earlier will, but to apply the same logic in the context of a big firm was ‘hopelessly wide’ unless one could point to a retainer which specifically required the firm to update previous work. The fact that the firm had provided unsolicited briefings and seminars on developments in the law was not fatal to the defence.

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