The Court of Appeal unanimously rejects an appeal by the children of a deceased personal injury claimant who alleged that the solicitor of the deceased claimant negligently discontinued the claim on his death and deprived them of their bereavement and maintenance claims.
The deceased personal injury claimant instructed the defendant in relation to a his personal injury claim following a car accident. The defendant driver accepted liability but disputed quantum and causation. Before the matter could be resolved, the defendant committed suicide on Christmas Eve 1994. At the time he was separated from his wife. He died intestate.
Without instructions, the defendant wrote to the defendant driver’s solicitors discontinuing the claim on 9 January 1995. On 3 February, the deceased’s wife, Mrs Reader consulted the defendant. The defendant immediately wrote to the defendant driver’s solicitors attempting to reverse the discontinuance. This was unsuccessful.
The deceased subsequently wrote to Mrs Reader advising her to seek independent legal advice. Mrs Reader instructed another firm of solicitors in June 1995.
In March 1998, the claimants, Mrs Reader and her children, gave notice of a claim against the defendant that it had wrongfully discontinued the deceased’s claim and as a consequence, lost their claims under the Fatal Accidents Act 1976 for an award of bereavement for Mrs Reader and damages for loss of care and services for the three children.
The defendant settled the claim by the Estate of the deceased that it had negligently discontinued the deceased’s personal injury claim, but denied that the defendant owed the children any duty of care to advise on the FFA claims or that they had suffered any loss as a result of its actions in discontinuing the claim.
The children issued claims against the defendant in 2004. At first instance, the Court rejected the claims, holding that the FFA claims did not arise until Mr Reader’ death, and were distinct causes of action from those that transferred to his estate. The discontinuance of the personal injury action was not causative of the claimants’ loss as the discontinuance did not extinguish the claimants’ cause of action. Further, the defendant did not owe the claimants any duty of care at any stage.
The Court of Appeal unanimously rejected the appeal. The Court upheld the first instance Court’s decision that the cause of action under the FFA was not extinguished by any acts of the defendant.
As a separate cause of action, the limitation period for a claim under the FFA runs from the date of death provided that at the time of his death, the deceased had an existing cause of action against the wrongdoer. All but one of the claimants had failed to issue claims within the 3 years from the date of their 18th birthdays.
While not strictly necessary to determine the appeal, a majority of the Court of Appeal considered that in the absence of a retainer, no duty could arise to advise Mrs Reader of the existence of the FFA claims that could be made by her children, or to the claimants themselves. Lord Justice Longmore dissenting concluded that the duty to advise Mrs Reader of her own FFA claim included a duty to advise on the existence of the dependency claims for the benefit of the children.
The Court of Appeal also made several other obiter comments of interest:
Lady Justice Smith sounded a note of caution about electing to determine duty of care as a preliminary issue. It will inevitably be the case that a duty of care is determined by the factual circumstances. Preliminary issues are decided with limited or no factual evidence.
Lady Justice Smith also observed that a solicitor’s duty of care and his responsibility to provide a good service for his client may not necessarily be the same. In this case, the solicitor could not owe a duty to the claimants during the period in which Mrs Reader retained him, as his actions could not affect their legal rights during that period. However, in Lady Justice Smith’s view, a solicitor had a professional responsibility to ensure that Mrs Reader would have brought the claim for the benefit of her children with proper expedition.
Solicitors need to be alive to the consequences of a client dying while a cause of action is ongoing. If the death can be linked to the original wrongdoing complained of, claims for bereavement and dependency could follow. The causes of action while linked by the factual circumstances are independent with different limitation periods applying.
Once again we see the disparity between what a professional should do, and what the Court says he must do.