A recent Court of Appeal decision considered the relevance of the solicitor's fee when determining scope of duty.
Thomas v Hugh James  EWCA Civ 1303 was decided in September 2017. The essential question was: if the client instructs the solicitor that he does not wish to pursue a particular head of loss, to what extent is a solicitor obliged to push the matter further?
Hugh James solicitors were originally instructed to act for Mr Thomas in a Vibration White Finger (VWF) claim under a claims handling scheme implemented by the government. The scheme was intended to facilitate the resolution of low value claims at proportionate cost.
Hugh James acted for Mr Thomas under that scheme. Their fees for doing so were very modest: £607 plus VAT.
Mr Thomas settled his claim for just under £10,500 in respect of general damages. Mr Thomas did not pursue a claim for special damages.
In 2010, Mr Thomas issued a professional negligence claim. He argued that Hugh James failed to give adequate advice about his claim for special damages and that, if properly advised, he would have recovered an additional £16,654
In defence of the claim, Hugh James relied on a meeting between the fee-earner and Mr Thomas, in which Mr Thomas had said he was unable to produce witness evidence to support a claim for special damages and was "not too bothered" about pursuing the claim. It subsequently transpired that Mr Thomas had made cash-in-hand payments to friends and the judge concluded he was concerned it would make trouble for them.
The claim failed at first instance. Mr Thomas appealed. He argued that Hugh James should have probed matters with the aim of changing his mind about the special damages claim.
Mr Thomas's appeal was rejected. Lord Justice Jackson found that if a client does not wish to pursue a particular head of claim and does not have evidence to support it, a solicitor is "not necessarily" under a duty to challenge that decision or try to change the client's mind.
In giving his judgment, Jackson LJ seems to have had in mind his ongoing review of costs and litigation funding.
Jackson LJ said:
"it is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime…There must be a sensible limit upon what we can expect solicitors to do in such cases".
Jackson LJ sought to distance his conclusion from the 2014 and 2015 VWF cases of Raleys Solicitors v Barnaby and Proctor v Raleys Solicitors where the court held that the solicitors were negligent for failing to advise the Claimants to pursue their claims for special damages.
Jackson LJ pointed out that Raleys Solicitors' conduct was perfunctory and in neither case did they even meet the client. By contrast, Jackson LJ expressed admiration for Hugh James' file, which was substantial despite their modest fee.
Jackson LJ concluded that: "solicitors must still exercise reasonable skill and care...But the solicitors cannot be expected to turn over every stone and to pursue avenues of enquiry which the client has closed down… I do not think that the court should criticise the defendant solicitors for not going the extra mile".
Our view is that, fundamentally, the law has not changed. Solicitors remain subject to the same standard of care as ever, namely that they must act as a reasonably prudent solicitor would. A solicitor who has accepted a client's retainer must fulfil its obligations under that retainer regardless of the fee being paid. Jackson LJ said that the solicitor is not obliged to pursue avenues of enquiry the client has turned down. We would submit that this is also not the duty of the solicitor being paid a very high hourly rate. It would be wholly inappropriate for a solicitor to constantly challenge their client's autonomy or spend the client's money pursuing arguments the client does not wish to explore.
Nevertheless, Thomas v Hugh James does demonstrate a willingness by the court to take a sensible view of the scope of a solicitor's retainer, particularly when the fee is modest, and not, as some people maintain, hold solicitors to a perfect standard.
The case is also a good example of where a well-maintained file has helped the solicitors to see off a claim. The court was able to praise Hugh James' conduct of the claim, which no doubt helped both the trial judge and Court of Appeal to find in the solicitors' favour.
DAC Beachcroft LLP successfully defended Hugh James solicitors to the Court of Appeal, led by Helen Staines.