Another "Failure To Advise" Case: Solicitor's Negligence Recast?

• Published date: 08 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Mr John Bryant and Francesca O'Neill

1CL's expertise in professional negligence cases is well-known, and in this recent case, a useful exploration of the solicitor's duty to advise clients as to the merit of their litigation casts further light on how the courts will approach the issue. John Bryant represented the Claimant in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB) - a case that contains important reminders of the duty of solicitors to convey the risks of litigation to clients, but also that the fact that an action is unsuccessful does not mean that the lawyers involved were negligent.

It is trite that solicitors owe their clients dual duties both in contract and in tort. Often, attempts are made to extend or embellish these duties so as to give rise to a specifically pleaded breach, or it is pleaded that one duty (the tortious) is more extensive. but as the Judgment made clear, these attempts lack merit: "The express contractual obligations were to update the Claimants on the progress of their case and whether the likely outcome justified the likely costs and risk, and to advise on any circumstances that could affect the outcome of the case. It is difficult to see how those obligations, when applied to ongoing or potential litigation, differ from the tortious duties owed by solicitors."

The Judgment also explored the tension between the views of Counsel and solicitor, especially when there is any disagreement between the two. He said: ". that "[two] lawyers may hold differing opinions with neither [being] unreasonable." That is true for different views held by different solicitors. It is also true of different views held by counsel and a solicitor. The fact that a barrister instructed in a case may have more cautious views does not mean it is necessarily negligent for a solicitor to be more optimistic."

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On 28^th January Dan Squires Q.C. sitting as a Deputy High Court Judge, handed down his judgment in Mervyn Lambert Plant Limited v. Knights Solicitors [2022] EWHC 165 (QB).

The outcome of the case turned on the reliability of the each of the main protagonists, respectively a businessman and the solicitor specialising in planning law he had instructed in judicial review proceedings aimed at preventing development of a large grain store in Norfolk. Those proceedings never got beyond the permission stage and, having expended hundreds of thousands of pounds in costs, the disappointed client sued the solicitor's firm, making a number of allegations of negligence...