In a judgment recently handed down by the Court of Appeal in Andrew Procter v Raleys [2015] EWCA Civ 400 the Court has rejected the argument often advanced by professionals that financial constraints operate to limit the scope of a professional's retainer. The Court upheld the first instance decision that solicitors were negligent in failing to ensure that their standard form “commoditised” advice was understood by the client.   

The Claim

Andrew Procter, who suffered from Vibration White Finger (VWF) caused during his employment with the National Coal Board, instructed Solicitors Raleys to advance a personal injury claim under the Department of Trade and Industry’s Scheme for VWF claims. 

Raleys' standard questionnaire and a medical report were completed. During the latter process Mr Procter was asked the question “Does the white finger affect your job, hobbies or sports?”. He confirmed that he found gardening a problem. Accordingly Raleys' noted internally that there was a potential claim for services (i.e. assistance with domestic tasks). They sent a standard letter to Mr Procter highlighting his potential claim for services but confirmed that he would need to complete further questionnaires for them to consider the issue further. Mr Procter subsequently returned a Form of Authority confirming that he only wished to claim for general damages and did not wish to pursue claims for handicap in the labour market or services.

In one of the telephone conversations Raleys subsequently had with Mr Procter, Mr Procter mentioned that he now wanted to make a claim for handicap on the labour market. At no point did Raleys seek to discuss Mr Procter's reasons for omitting a claim for services in circumstances where they were aware of his right to pursue the same. Two further standard letters were sent by Raleys but these failed to provide clear advice concerning the potential services claim.

The personal injury claim was settled for £11,141 in respect of general damage (pain, suffering and loss of amenity) and for a handicap on the labour market. 

Mr Procter subsequently brought a claim in negligence against Raleys alleging failure to advise on the services issues. He claimed he did not realise that the gratuitous assistance he received from family members would have entitled him to make a claim for services. 

The Court at first instance found that, had he been properly advised about the Scheme and his right to claim for services, Mr Procter would have made a claim for services for an additional £11,079.42. He therefore succeeded in his loss of opportunity claim which was was assessed by the Court at 50%.

Raleys appealed. The main issue was whether or not Raleys were negligent in failing to undertake meetings or telephone conversations with Mr Procter to satisfy themselves that he understood the standard form advice which had been given.

Decision of the Court of Appeal

The Court of Appeal found in favour of Mr Procter and held that the solicitors were under an obligation to discuss the services issue with Mr Procter given he had been advised that he was entitled to make such a claim and yet on three occasions had passed up his opportunity to do so. 

The Court rejected the notion that a solicitor should feel inhibited in ensuring advice had been understood by his client on the basis that this would cost the client more in fees. Lord Justice Tomlinson noted that, whilst financial constraints may require solicitors to “commoditise” their advice, standard letters sent by Raleys were unclear and, in circumstances where there were clear indications that the advice may not have been properly understood, "it is not asking much of a solicitor… to make sure his client understands the opportunity apparently being passed up."

Comment

With a number of personal injury firms focusing on commotidised type litigation Proctor v Raleys provides a salutary reminder that standard reporting to clients and "box ticking" may be not enough. As far as the Courts are concerned, economic pressures on the handling of a claim are irrelevant to the scope of a solicitor's duty to his client. Furthermore, those working in the professional indemnity sphere will note the implications for professionals from other disciplines – the size of the fee paid may bear no relation to the duty of care imposed on the professional.