Good news for the legal profession – the courts' willingness to limit the scope of solicitors' duties of care shows no sign of diminishing. In the recent case of Anderson Properties Ltd v Blyth Liggins (a firm)  the court rejected the client's assertion of a right to a guaranteed result, namely that a contract should have been drafted so as to avoid arguments as to enforceability.
In this case, the claimant instructed solicitors on the purchase of a development site from a charity. The claimant planned to develop the land and the contract was conditional upon the claimant being granted planning permission by a stipulated date. The claimant failed to apply for planning permission in time but sought to complete.
The charity refused on the basis the contract was unenforceable for uncertainty. The contract provided for the grant of a lease and under-lease on completion. The land which was to be included was to be defined by plans. The charity alleged that, as the contract did not include plans, it was unenforceable.
The claimant settled the contractual dispute with the charity and sued its solicitors for almost £8m, alleging negligence on the basis that the contract should have been enforceable. The solicitors argued that, if the claimant had applied for planning permission in accordance with the contract, there would have been no uncertainty. The area to be leased could have been identified by reference to the planning permission application and the contract would have been enforceable. The court agreed.
The question which followed was whether the solicitors were negligent in drafting the contract so that it might be unenforceable if the claimant failed to apply for planning permission.
The court held that the solicitors' role was to draft a contract to implement the client’s instructions. The agreement between the claimant and the charity provided for an application to be made for planning permission. The contract gave effect to this agreement. In the absence of express instructions, the court held that a solicitor is not obliged to ensure there is a mechanism by which a client can circumvent agreed terms.
In considering the solicitors' duty of care, the judge accepted that the solicitors were under a duty to ensure that the terms of the contract were enforceable. But this did not amount to a guarantee of a result. The solicitors' retainer did not include "a separate duty to draft the contract so that no reasonable argument could be raised as to its enforceability".
We have recently commented on a number of decisions on solicitors' retainers which demonstrate a willingness by the courts to reject attempts by clients to extend the scope of duty. For more infornation, click here.
This welcome trend is continuing with the Anderson Properties Ltd decision and the decision in Denning v Greenhalgh Financial Services Ltd , which we recently covered in one of our briefings.
Perhaps the current approach taken by the courts marks the tide finally turning in favour of the profession. Or is it too early to tell?