Is there a duty on a solicitor to probe?

In a recent Court of Appeal case, Graham Thomas v Hugh James Ford Simey Solicitors the court examined the duty of a claimant’s solicitor to carry out further enquiries into a potential head of claim for special damages.

The facts in the case were as follows.  The claimant who was a coal miner instructed solicitors to pursue a claim for damages for vibration white finger (VWF). The claim fell within a scheme set up by the Department of Trade and Industry which meant it would be dealt with expeditiously and at modest cost.  The claimant was entitled to general damages and also special damages for care and assistance of certain services, namely decorating, DIY, gardening, car washing and car maintenance. He received an offer for general damages and the solicitors advised him he may be entitled to claim for special damages, if he had been unable to carry out specific tasks.  The claimant stated that he had received help with services, but he had made cash in hand payments to these people and he did not have evidence to prove the help he had received. He advised the solicitor he “was not too bothered at all” to pursue the special damages and accepted the offer of general damages in full and final settlement of his claim. Seven years later, the claimant saw an advertisement from another firms of solicitors stating that many VWF claims had been under-settled.  He decided to bring a negligence claim against his former solicitors alleging that if he had been properly advised he would have made a claim for the special damages. At court, the judge found his former solicitors had not been in breach of duty. The claimant appealed to the Court of Appeal on the grounds that the solicitors had been in breach of duty by failing to provide an approximate valuation of the claim for services; failing to inform him of the availability of an interim payment in the event that he pursued a services claim; and treating his comment about cash in hand payments and difficulty in obtaining evidence as putting an end to the services claim.

The Court of Appeal dismissed his claim and  accepted that the above facts were true but stated that the issue of law was whether these facts constituted a breach of duty by the solicitor.

The original retainer required the solicitors to advise the claimant about his possible claims for general or special damages and to pursue such claims where appropriate. The solicitors had advised him about the possibility of a claim for special damages in respect of services and had discussed the matter with him. The solicitor had indicated that the amount of compensation payable under that head could be significant.

The claimant was an intelligent and articulate man who knew his own mind and instructed his solicitors that he had decided not to pursue a claim for special damages. The solicitors had not been under a duty to probe matters in the hope of changing his mind.

It was not the role of a solicitor to tempt the client by referring to large sums once it was clear that supporting evidence for a claim was not available. If a client instructed his solicitor that he did not wish to pursue a particular head of claim and that he did not have evidence to support it, the solicitor was not necessarily under a duty to challenge that decision or to try to change the client’s mind. If the client was an adult with full capacity, there came a point when his autonomy had to be respected.

It was significant that the claim was a modest one which the solicitors were running under a fixed costs regime and under a scheme for dealing with high volume, low value injury claims. There had to be a sensible limit upon what solicitors could be expected to do in such cases. Such schemes might be the only practicable way of facilitating access to justice in such cases at proportionate costs. The solicitors still had to exercise reasonable skill and care in advising clients and pursuing claims, but they could not be expected to turn over every stone and pursue avenues of enquiry which the client had closed down.

This is an interesting case for claimant solicitors which demonstrates the onus put on the claimants in these particular circumstances. Whilst it is essential for claimant solicitors to offer clear and robust advice on potential heads of claim which claimants may be entitled to, there is a clear onus on claimants to carefully consider and provide instructions to their solicitors on whether they wish to pursue potential heads of claim for which they will have no later comeback.

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