In our round-up of recent cases, we look at a solicitor’s duty at a mediation, when drafting a will for an elderly client and a limitation claim that revisits the issue of when time runs in a compromised litigation claim.

Frost v Wake Smith and Tofields Solicitors

This claim concerns the extent of a solicitor’s duty to achieve a final binding agreement at a mediation.

The underlying claim concerned an acrimonious dispute between two brothers. They ended up at a mediation, where the mediator performed a “small miracle” in getting the parties to reach and sign an agreement in principle. Subsequently, the other brother raised objections and a second mediation took place where resolution was achieved.

The claimant alleged his solicitors were negligent in failing to ensure that the first mediation resulted in an enforceable agreement. The Court of Appeal dismissed the claim and held that such an obligation did not exist and would have been impossible to perform in circumstances where a final agreement was never achievable.

This is good news for the profession because it would be most unfair to impose a duty on a solicitor to achieve something that could never have been done. However, it does highlight the care solicitors need to take when advising about the agreement that has been reached at the end of an often long and fraught day.

Berney v Thomas Saul & Co Solicitors

This is an interesting case that again looks at when time runs to bring a claim against a solicitor arising out of failed/poorly conducted litigation. Is it when there is a real risk that the claimant has lost something of value, or when final settlement has been reached?

Previous decisions (Khan v Falvey and Hatton v Chafes) had been decided on the basis that time began to run when there was a real risk that the claim was likely to be struck out as opposed to the date it was struck out.

In Berney, the underlying claim was an RTA claim where the defendant had admitted liability. The claimant’s first solicitors had failed to serve proper particulars. New solicitors became instructed who advised that the claim was likely to be struck out. The claim eventually settled in November 2005. The claimant brought a claim against her first solicitors alleging she would have recovered more but for their conduct in failing to serve proper particulars.

The solicitors argued that the claim was out of time because loss accrued when there was a real risk the claimant would not be able to serve particulars and her claim would be struck out, or, even if she would have been successful, she would have faced a costs liability or had her claim restricted.

Although the Court of Appeal judges were divided as to the precise date on which the loss was first suffered, they agreed that it was necessary to consider when there had been a real risk of the original claim being struck out or restricted. They were agreed that the claim was not statute-barred.

Commentary

Although the judges did not agreed on all points, the Court of Appeal did largely endorse the earlier decisions in Khan v Falvey and Hatton v Chafes that damage is suffered when there is real risk that the underlying litigation is in some way less valuable.

Feltham v Freer Bouskell

This decision is a timely reminder that speed is of the essence when dealing with an elderly client who instructs you to prepare a will because they may die. This applies even when the solicitor has concerns about capacity and undue influence being asserted and deliberately delays preparing the will. While the court had some sympathy for the solicitor, the judge held that he had been negligent in failing to proceed with his instructions. A solicitor instructed to prepare and execute a new will is obliged to do so within a reasonable time, particularly where it is foreseeable that the testator might not live long. Where there are concerns about the testator's mental capacity, a solicitor should either refuse the instructions or take prompt steps to satisfy himself about capacity.