[2008] EWHC 20 (QB)

Although generally a lawyer is not under a duty to advise a client about a claim which falls outside the scope of the matters on which he is instructed, this is not so where the client has a potential claim against a previous adviser relating to a missed time limit where that time limit is also in issue in the proceedings about which the lawyer is instructed.

This was a contribution claim brought by the clamant firm of solicitors against leading and junior counsel (see Luke v Kingsley Smith & Co for a consideration of “same damage” in contribution claims between lawyers). The parties had been instructed by Mr and Mrs Fox in the same matter, but the Foxes had only issued proceedings for negligence against the solicitors who settled the claim against them. The trail of negligent advice is a sorry one. The negligence in question was a failure to advise the Foxes of the time limit applicable to a potential claim against their previous solicitors Wellers. That lost claim against Wellers would in turn have been a claim relating to Wellers’ failure to advise the Foxes of the time limit applicable against another firm of solicitors, Lindars Leech. The lost claim against Lindars Leech would have been for negligent advice which allegedly led the Foxes to settle their claim arising from their investment in a Spanish holiday development on unfavourable terms.

The court held that the defendant barristers should have appreciated from their instructions that the Foxes wanted to bring a claim against Lindars Leech. Appreciating the limitation obstacle to this claim, they should have referred to the possibility of bringing a claim against Wellers for their failure to begin proceedings in time, and informed the Foxes of the time limit for bringing a claim against Wellers. The fact that neither barrister thought Wellers had been negligent did not matter.

Comment: this case is a reminder that a client must be advised about every potential claim it could make arising out of the circumstances of the instructions even if some are weak, unless the potential claim is so obviously hopeless that the client could not reasonably decide to pursue it. Since this was a traditional type of relationship between solicitor and counsel, where the solicitor looked to counsel for authoritative guidance on the major strategic questions concerning the conduct of the litigation and associated issues, it was appropriate to apportion liability 75:25, counsel bearing the larger share.

See also the recent decision of the Court of Appeal in Leonard v Byrt for another loss of chance claim – this time against solicitors, counsel and expert. The court rejected the argument that the claimants’ loss of public funding to pursue the primary litigation was due to the defendants’ negligence. Their claim was subject to so many contingencies that the judge below had been entitled to reject it without doing a mathematical calculation.