Court of Appeal rejects argument that a solicitor had a duty to warn

The claimant was injured in a road accident in Russia. He sought to claim under two insurance policies taken out by his employer for the benefit of its employees: (1) an Accidental Death and Dismemberment ("AD&D") policy and (2) a Long Term Disability ("LTD") policy. The claimant alleged that his solicitor's advice regarding the AD&D policy was negligent, but that claim settled. He also alleged that the solicitor's handling of his LTD policy claim had been negligent but at first instance it was held that, on the facts of the case, the LTD claim had fallen outside of the scope of the solicitor's retainer and nor was the solicitor under a duty to warn the claimant of the scope and validity of the LTD policy. The claimant was given permission to appeal the duty to warn point.

The Court of Appeal has now dismissed that appeal. The solicitor did not have a duty to warn in substantive terms about the claimant's rights under the policy and what needed to be done to prevent them from becoming time-barred. The Court of Appeal confirmed that a solicitor is not required "to carry out investigative tasks in areas he had not been asked to deal with however beneficial to the client that might in fact have turned out to be". The solicitor would have had to carry out a thorough examination of the policies and a certain amount of legal research to advise about rights under the policy, and he was never instructed to advise on the policy.

Nor did the solicitor have any duty to warn the claimant that he needed to obtain legal advice about the LTD claim. On the facts, it was held that, had the solicitor offered to give advice about the LTD policy, the claimant would not have agreed to his giving it or being paid for it.