This recent decision of the Queen’s Bench Division considered the scope of the Defendant solicitor’s duty of care in relation to an underlease transaction. It is a further reminder that the scope of a solicitor’s duty of care is limited to its retainer.
The Claimant instructed the Defendant in relation to the acquisition of a commercial lease. It was the Claimant’s intention to use the property as a restaurant. Unfortunately, a dispute arose and the Claimant brought a claim for breach of contract and/or negligence in respect of an implied term to exercise reasonable care and skill.
The following arguments were raised:
- The Defendant failed to provide any, or any adequate, advice in relation to the permissions needed from the superior landlord to use a ventilation shaft. In particular, the Defendant failed to advise in respect of alleged express instructions that ducting work needed to be installed;
- Alternatively, even if the Claimant did not expressly explain ducting work would be required, a firm of solicitors knowing as the Defendant did should have advised of the need for consent;
- The drafting and wording of the underlease created a “risk” in relation to which specific advice was required;
- The Defendant failed to adequately advise on the Local Authorities planning permissions; and
- The Defendant failed to advise that the Claimant was submitting inadequate plans to the underlessor in respect of a grant of a licence.
The Defendant argued that it did correctly advise that the underlease contained the right to use the ventilation shaft. However, as the Claimant did not inform it of the need for ducting work no duty arose to advise on or secure the relevant consents. The Defendant argued there was no duty to make any specific enquiries in relation to the Local Authority’s requirements as the Claimant had advised the ventilation shaft was “good to go”. Finally, in respect of the plans, the underlessor did not press for more detailed plans and it was not within the scope of the Defendant’s duty to the Claimant to provide more detail than was required by the underlessor.
The Court held that the Defendant’s duty was to exercise the reasonable skill and care to be expected from a normally competed and careful practitioner. The source and origin of a solicitor’s duties in any particular case is the retainer between himself and the client. Accordingly, a solicitor is not obliged to travel outside his instructions and make investigations which are not expressly or impliedly requested by the client.
On the facts, the Court found that the Claimant did not advise of the need for ducting works to the ventilation shaft and gave no express instruction to advise in this respect. The Claimant had advised that the shaft was “good to go” and it did not form part of the Defendant’s duty of care to go behind and investigate whether that factual instruction was true.
In relation to the “risk” in the lease that required advice, the Court held that the Claimant had to show there was a “real scope for dispute” over whether the underlease gave the Claimant the right to connect into and use the ventilation shaft. On the facts, there was no “risk” factor which required advice or drafting and the rights and definitions in the Lease were sufficiently broad to allow the Claimant to use the ventilation shaft.
Finally, in relation to the failure to provide advice on the Local Authority’s planning requirements and failure to advise of the inadequate nature of the plans, it was held that as the Claimant told the Defendant the shaft was good to go, and the Defendant adequately sought the Claimant’s instructions in relation to the plans, no breach of duty occurred.
This case is a reminder to litigants that the scope of a professional’s duty of care is limited to its retainer and will not be easily extended. It is also a reminder that professional negligence claims are highly factual in nature and professional advice should be sought prior to commencing a claim.