View
223
Download
0
Category
Preview:
Citation preview
7/28/2019 E&W Solicitors - Claims Against Solicitors Checklist
http://slidepdf.com/reader/full/ew-solicitors-claims-against-solicitors-checklist 1/5
Professionalpractices update
QBE European Operations
Claims against solicitors - a checklist
7/28/2019 E&W Solicitors - Claims Against Solicitors Checklist
http://slidepdf.com/reader/full/ew-solicitors-claims-against-solicitors-checklist 2/5
QBE Professional practices update - Claims against Solicitors - a checkli st/Jan 2013 1
The purpose of this
document is to provide
a checklist of some of the matters which merit
consideration when a claim
is brought against a solicitor
(and does not include
consideration of claims of
fraud). It is not intendedto be used to conduct
the professional liability
litigation but as a guide to
some of the relevant points
that the solicitors instructed
to deal with a professional
liability claim on your behalf will consider in relation to
defence of a claim.
Limitation
• Were proceedings issued more than six years ater the
cause o action accrued?
• Are there dierent dates or the accrual o the cause o
action in contract and tort?
– In contract the primary limitation period will be six years
rom the date o breach, and in tort it will be six years
rom when the damage was suered. Claimants may try
to argue that the damage was suered at a later date than
the alleged breach o duty by the solicitor ollowing Law
Society v Sephton (ie eectively extending the limitation
period).
• Does section 14A o the Limitation Act 1980 apply?
– This gives an extended period o limitation o three years
rom the date o requisite knowledge.
•
Is there any argument that the solicitor owed a continuingduty o care to the client? (Carlton v Fulchers (1997 )).
Identity of the claimant
• Is the claimant a client?
– Common situations where it is sometimes unclear who
the client is include:
Whether the solicitor is acting or a company and/or the
shareholders, or a borrower and/or a lender, or or a
husband and/or a wie.
• I the claimant is not a client could the solicitor none the less
owe a duty o care?
– The tests are oreseeability, proximity and air just
and reasonable; assumption o responsibility; and an
incremental approach rom decided cases.
Identity of the defendant
• Has the claimant brought the claim against the irm,
individual partners or employees or both
• I claiming against the irm, has the claimant named the
correct entity? The claimant must sue the partnership that
existed at the time the cause o action accrued. This is a
point that is oten misunderstood, especially where the irm
has converted to an LLP since the cause o action accrued.
Claims against solicitors - a checklist
7/28/2019 E&W Solicitors - Claims Against Solicitors Checklist
http://slidepdf.com/reader/full/ew-solicitors-claims-against-solicitors-checklist 3/5
QBE Professional practices update - Claims against Solicitors - a checkli st/Jan 2013 2QBE Professional practices update - Risk Management/Jan 2013
What duties does the solicitor owe the
claimant?
• Is there a retainer letter and does it cover the work that is
the subject o the claim?
– In most cases a contractual relationship will exist between
the claimant and the solicitor either expressly or by
implication. I there is a retainer letter, then it is likely that
a number o the solicitor’s duties will be set out expressly.
The solicitor will also usually owe implied duties, such as the
duty to act with reasonable skill and care. There will also be
concurrent duties in tort which will be largely determined
by the terms o the retainer but may no be concurrent
– There is no such thing as an implied general retainer to
advise on everything to do with a client’s aairs, although
claimants can sometimes assume that this is the case. For
example, i a solicitor is instructed to advise a companyon the tax consequences o a transaction that does not
necessarily mean that he is obliged to give an individual
director personal tax advice.
• Are the solicitor’s iduciary duties relevant to the claim?
– The solicitor will also owe iduciary duties including a duty
not to act in conlict, a duty to act in good aith and a duty
o conidentiality.
• What is the scope o the duty o care that the solicitor owes?
A solicitor is not, without speciic agreement, a guarantor
o outcomes.
– Was the solicitor instructed to advise in relation to the
whole transaction or on a speciic part o it.
– What type o solicitors’ irm and department and
individual within the irm is involved in the matter?» I the solicitor or irm is held out as having particular
specialist expertise in an area then they will be judged
by the standard o a reasonably competent solicitor
with experience in that ield. (Hicks v Russell Jones
& Walker)
• What is the nature o the client?
– Is it an individual seeking legal advise or the irst time on
a private matter such as a will, or is it in-house counsel
at a corporate client giving a repeat instruction? An
inexperienced client is entitled to expect the solicitor to
take a broader view o the retainer (Carradine Properties
v DJ Freeman)• The solicitor will be expected to be competent in the ield
that is relevant to the particular matter (Hurlingham Estates
v Wilde & Partners)
• The solicitor is not generally under a duty to advise on the
wisdom o the transaction or to provide commercial advice
(Pickersgill v Riley)
• There may be a duty to warn the client about particular
issues the solicitor comes across during the retainer (Credit
Lyonnais SA v Russell Jones & Walker )
2
7/28/2019 E&W Solicitors - Claims Against Solicitors Checklist
http://slidepdf.com/reader/full/ew-solicitors-claims-against-solicitors-checklist 4/5
QBE Professional practices update - Claims against Solicitors - a checkli st/Jan 2013 3
Breach
• Does the error amount to negligence?
– Not every error a solicitor makes is negligent. The
usual position is that the solicitor is required to exercisereasonable care and skill (unless or example the solicitor
has agreed contractually to a higher standard o care). For
example, i a solicitor advises wrongly on the construction
o a document the error will not necessarily be negligent
i it is a reasonable construction. However, it may be
negligent not to advise the client that the matter is open
to interpretation.
• Did the solicitor take adequate instructions and was the
solicitor ollowing the client’s instructions?
– I the solicitor did act on instructions that will usually be
a deence unless the client’s instructions were a result o
inadequate legal advice.
• Was the solicitor relying on counsel’s advice?
– Solicitors are entitled to rely on the advice o counsel
properly instructed. The solicitor must however, exercise
his own independent judgment and reject counsel’s
advice i it is obviously or glaringly wrong (Locke v
Camberwell HA (2002) Ridehalgh v Horsefield ( 1994)).
• Does the claim involve allegations o breach o warranty o
authority?
– Liability or breach is strict.
Causation and foreseeability• What would have happened i the solicitor had done as the
claimant alleges they should?
– For example, i the client would have proceeded with the
transaction or litigation even i the correct advice had
been given there is no causation, as the “but or” test o
causation is not satisied.
• Has there been an intervening act by the claimant or third
party that has broken the chain o causation?
– For example, has the claimant been given subsequent
incorrect legal advice.
• Is the damage too remote?
Measure of damages
• SAAMCo applies to solicitors claims. A solicitor can only be
held liable or loss which alls within the scope o his duty (In
Haugesund v Depa the solicitors’ irm was not held liable
or all o the losses lowing rom a transaction where the
irm was only asked to advise on a speciic question on the
validity o the proposed swaps).
• What is the correct measure o damages?
– The basic rule is that the claimant should be put in
the position he would have been in i the solicitor haddischarged his duty.
• What is the correct date on which damages should be
assessed?
– The general, although by no means inlexible rule is that
damages are assessed at the date o breach.
• Loss o a chance issues must be considered where it is
necessary to speculate what a third party would have done
had the solicitor discharged their duties. For example, i it is
alleged that the solicitor should have advised the claimant
about the eects o entering into a contract, and it is ound
that i given proper advice the claimant would have tried to
re-negotiate the contract, the courts will assess the value o
the lost chance that the counterparty would have agreed to
the amendments.
• Damages or breach o a iduciary duty will be assessed on
a dierent basis, as they are restitutionary.
Contributory negligence/contribution
• Is there an argument o contributory negligence?
– This is not common in claims against solicitors, although
with some exceptions such as claims by lenders against
solicitors. The deence o contributory negligence is not
available in a claim or breach o iduciary duty.
• Can a claim or contribution pursuant to the Civil Liability
(Contribution) Act 1978 be brought?
– Are other proessionals responsible or the same loss,
eg an accountant, surveyor, counsel or a previous or
successive solicitor.
Mitigation
• Has the claimant mitigated his loss?
– Generally speaking a claimant is not obliged to embark on
uncertain or complicated and dificult litigation to mitigate
his loss (Pilkington v Wood (1953)). However, there are
exceptions. For example, a mortgage lender who alleges
a solicitor has been negligent has been required to obtain
possession o the property and enorce the security
(Western Trust Savings Ltd v Clive Travers Co).
Limitation of liability
• Is there a limitation o liability contained in the retainer
agreement
– Note that there are limits on the extent to which solicitors
can limit their liability and consider whether the Unair
Contract Terms Act 1977 or the Unair Terms in Consumer
Contracts Regulations 1994 might apply.
7/28/2019 E&W Solicitors - Claims Against Solicitors Checklist
http://slidepdf.com/reader/full/ew-solicitors-claims-against-solicitors-checklist 5/5
4179/Claims against Solicitors - a checklist/JAN2013
QBE European Operations is a trading name o QBE Insurance (Europe) Limited and QBE Underwriting Limited. QBE Insurance (Europe) Limited and QBE Underwriting Limited are authorised and regulated by the Financial
Services Authority. QBE Management Services (UK) Limited and QBE Underwriting Services (UK) Limited are both Appointed Representatives o QBE Insurance (Europe) Limited and QBE Underwriting Limited.
QBE European Operations
Plantation Place
30 Fenchurch Street
London
EC3M 3BD
tel +44 (0)20 7105 4000www.QBEeurope.com
Further advice should be taken before relying on the contents
of this summa ry.
QBE European Operations and Clyde & Co LLP accepts no responsibility
or loss occasioned to any person acting or reraining rom acting as a
result o material contained in this summary.
No part o this summary may be used, reproduced, stored in a retrieval
system or transmitted in any orm or by any means, electronic,
mechanical, photocopying, reading or otherwise without the prior
permission o QBE European Operations and Clyde & Co LLP.
QBE European Operations and Clyde & Co LLP is a limited liability
partnership registered in England and Wales. Authorised and regulated
by the Solicitors Regulation Authority.
© QBE European Operations and Clyde & Co LLP 2013 .
Clyde & Co LLP’s Professional Indemnity Team has kindlygiven us full permission to reproduce this document,
information correct as at August 2012.
Recommended