THE DUTIES OF A SOLICITOR IN LITIGATION: NO DUTY TO TEMPT THE CLIENT TO PURSUE LARGE SUMS: ADVERTISING “TURNED THE CLIENT’S HEAD” AND LED TO INCORRECT ASSERTIONS

In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303  the Court of Appeal considered the extent of a solicitor’s duty and retainer. It is significant in that it:

  1. States that the courts should approach the issue of fixed costs, high volume, work with a degree of realism.

  2. Makes it clear that there is no duty on lawyers to badger clients who do not wish to pursue certain heads of damage.

  3. Actually commends the lawyers for the quality of the work done rather than finds them negligent.

“… it is not the role of a solicitor to tempt the client by referring to large sums, once it is clear that supporting evidence for a claim is not available.”

“This court has, therefore, already recognised the need to adopt a realistic standard when assessing the performance of solicitors conducting litigation under a high volume, low cost commoditised scheme. Such schemes may be the only practicable way of facilitating access to justice in such cases at proportionate costs. Therefore, no-one should belittle those schemes. The solicitors must still exercise reasonable skill and care in advising clients and pursuing claims. But the solicitors cannot be expected to turn over every stone and to pursue avenues of enquiry which the client has closed down.

THE CASE

The claimant alleged that the defendant solicitors had been negligent in failing to pursue a claim for special damages under the coal industry VWF scheme ( a scheme that provided for compensation for those miners  who suffered vibration white finger). The action failed at first instance. The claimant appealed.

THE ADVICE GIVEN BY THE INITIAL SOLICITORS

An offer was made under the VWF scheme. The original solicitors sent out a letter to the claimant.
    1. On 15th January 2001, the defendants sent a letter of advice to the claimant, which appears to have been in their standard form. The material part of that letter reads as follows:
Special Damages
The present offer does not also take into account special damages, that is damages to compensate you for other potential losses that you may have suffered. Examples of when compensation is paid for special damages is where you are unable to carry out tasks such as gardening, DIY, home decoration, window cleaning, car maintenance, and car washing. These are only examples, there may be others.
If you are not able to carry out any or all these tasks because of your VWF condition, then we will need to consider making an additional claim for compensation. You will not however be able to make a claim, for example, you have any other medical conditions, which are so severe that would prevent you from carrying out these tasks in any event. If you have other medical problem(s) which only cause moderate or minor disability and we are able to prove that you have difficulty in carrying out these tasks (referred to above) because of your VWF condition then you will be able to make a claim for these additional (special) losses.
The amount of compensation payable in such cases can be significant.
On the medical evidence we have, we suggest that you give careful consideration to whether or not a claim can be made.
If a claim is going to be made then we will need to complete a further questionnaire. In addition, if we are alleging that others (for example friends and/or family) have now had to do tasks for you, then they too will need to complete a questionnaire. The questionnaire requires details of what tasks have been carried out and by whom, and when.
If necessary we can assist you in completing these questionnaires.”
    1. On 23rd January 2001, the claimant attended the defendants’ office to discuss the offer. Once again, he saw Ms Kinsey. Ms Kinsey’s note of that meeting reads as follows:
“Mr Thomas attended the office on the 23 January. BK was engaged with Mr Thomas for 24 minutes. BK discussed the offer with Mr Thomas and explained the difference between labour market handicap and general damages. BK also explained to him about indexation and suggested that he waited. BK said that it could be approximately £80 to £100 increase on in offer [sic] which Mr Thomas said he was quite happy to accept as he did not want to wait that long. BK discussed special damages with Mr Thomas and he indicated that he could not get anybody to indicate that he had problems with his hands in doing decorating because people were doing it as a favour for him. Therefore he had some difficulty. In any event, he said he was not too bothered at all and would deal with the matter as quickly as he could do.
Therefore Mr Thomas signed the form of authority accepting the offer that was put forward.”
  1. Following that meeting, Ms Kinsey dealt with the paperwork. On 20th February 2001, the claimant received a cheque for £10,482.72 in full and final settlement of his claim, including interest. IRISC paid £607 plus VAT to the defendants in respect of costs.

 

THE MATTER IS RESURRECTED SEVEN YEARS LATER

    1. !There matters rested for the next seven years. In 2008 another firm of solicitors, Mellor Hargreaves, came on the scene. They were advertising for new business. Their advertisement stated:

“Thousands of ex miners have had these VWF claims settled for much less than they should have received.”

  1. The claimant read the advertisement and went to see Mellor Hargreaves. Having taken advice, he commenced the present proceedings.

THE ACTION FAILED BEFORE THE CIRCUIT JUDGE

The matter was heard by a recorder. The findings were summarised by Jackson LJ
“(i) The claimant was an intelligent and articulate man. He had no difficulty working with the documents in the trial bundle. Indeed, he made the shrewd observation that even if he didn’t have VWF, he was entitled to make claims based on the MAP 1 report. (Judgment paragraph 27)
(ii) The claimant was an unreliable witness. The information given to him about the potential quantum of his claim had “turned his head and bred a sense of grievance such that he is prepared to advance incorrect assertions”. (Judgment paragraph 31)
(iii) Mrs Thomas’ evidence added little if anything. (Judgment paragraph 32)
(iv) Ms Kinsey had no recollection of this matter. She could only give evidence of her general practice in handling VWF claims. That evidence had some value, because she dealt with a large number of such claims and was likely to have standard words of advice in response to queries from clients. (Judgment paragraphs 36 – 37)
(v) Ms Kinsey did not say, either in her advice letter or at the meeting, that the claimant would need to pay his helpers in order to make a claim for services. (Judgment paragraphs 41 – 42)
(vi) The claimant thought he could not claim for gratuitous services. That was a misunderstanding on his part, for which Ms Kinsey was not responsible. (Judgment paragraph 44)
(vii) Mr Boobier (the claimant’s father-in-law) and Mr James (a friend) helped with decorating. The claimant made “cash in hand” payments to them. (Judgment paragraph 41)
(viii) The claimant told Ms Kinsey that Mr Boobier and Mr James had helped with decorating. But, he said, they would be reluctant to give supporting evidence, because they had received “cash in hand” payments for their work. (Attendance note of 23rd January meeting, judgment paragraphs 43 – 44)
(ix) Ms Kinsey did not provide a valuation of the claimant’s possible services claim. Nor did she inform the claimant of the availability of interim payments for people pursuing services claims. (Judgment paragraphs 40, 45 and 46)
(x) The failure to provide a valuation was not a breach of duty. Ms Kinsey’s letter of 15th January had stated that the value of services claims “can be significant”. That was sufficient. The claimant gave evidence that he thought that meant £1,000 – £2,000, but nothing said or written by the defendants gave him any basis for that assumption. (Judgment paragraph 47(a))
(xi) “When taking advice from a solicitor about a potential claim, topics will inevitably be discussed in a particular – hopefully logical – order, and when it becomes apparent that the claim can proceed no further when one topic is discussed it will not necessarily then be necessary for subsequent topics to be discussed. The attendance note records that special damages were discussed, Mr Thomas raised the subject of decorating, there was some discussion about the evidence, and it was concluded that the requisite evidence would not be available. The claim, therefore, could not proceed. If it had been established that the evidence was available, it would then have been appropriate to discuss the approximate value of the claim, and the procedure for bringing such a claim, which would involve rejection of the offer and the claim for an interim payment, but the conversation did not get to this point. I do not consider that there was a breach of duty in failing to consider aspects of a claim which could not proceed because – as had, by that point, been established – the evidence which would be required for the claim was not available.” (Judgment paragraph 47(b))
(xii) If the claimant had been told the size of the claim, he would have acted differently. But that makes no difference. “I do not think it is – or ought to be – the role of a solicitor to tempt his or her client with ‘astronomical’ sums once it appears to have become apparent that a claim for such sums is not practicable”. (Judgment, last part of paragraph 47)
(xiii) The fact that the defendants’ standard form letter of December 2001 was better than their standard form letter of January 2001 is no reason for saying that the earlier letter was negligent. (Judgment paragraph 47)
(xiv) On balance of probabilities, the claimant was not and is not suffering from VWF. (Judgment paragraph 53)
(xv) The clamaint’s claim for special damages in respect of decorating and DIY services had some value. There would be a deduction of 15% for co-morbidity, because of the claimant’s previous hand injury, and a further deduction of 20% to reflect other risks. (Judgment paragraph 62)
(xvi) The claimant did not have a viable claim in respect of gardening services. (Judgment paragraph 61)
(xvii) If the claimant had succeeded on liability, he would recover damages on the basis of loss of a chance with a discount of 35% for the matters mentioned in sub-paragraph (xv). (Judgment paragraph 62)”

THE COURT OF APPEAL’S REJECTION OF THE CLAIMANT’S APPEAL

Jackson LJ gave a judgment which Henderson LJ agreed with.

Part 4 – The appeal to the Court of Appeal
    1. By an appellant’s notice filed on the 4th February 2016, the claimant appealed to the Court of Appeal on grounds which I would summarise as follows. The judge erred in finding no breach of duty. In fact, the defendants were in breach of duty in three respects, namely:
(i) Failing to provide an approximate valuation of the claim for services.

(ii) Failing to inform the claimant of the availability of an interim payment in the event that the claimant pursued a services claim.

(iii) Treating what the claimant said on 23rd January 2001 about “cash in hand” payments and difficulty in obtaining evidence as putting an end to the services claim.

    1. In the event that the claimant succeeds on his main grounds of appeal, he advances a separate ground in relation to quantum. The claimant challenges finding (xvi), contending that the available evidence did support a claim for gardening services.
    2. The appeal came on for hearing on 27th July 2017. Mr Jonathan Watt-Pringle QC represented the appellant claimant. Mr Michael Pooles QC, leading Mr Matthew Jackson, represented the respondent defendants. I am grateful to all counsel for their assistance.
    3. Mr Watt-Pringle began the appeal by going through the bundle, pointing out minor shortcomings in Ms Kinsey’s attendance notes and letters. By way of example, he criticised what Ms Kinsey said about general damages for handicap on the labour market. None of those criticisms were relevant to the issues in the appeal and I did not find them helpful.
    4. In any professional negligence action, it may be tempting for advocates to trawl through the bundle, saying that this or that shows a “general lack of care”. Such an approach is seldom beneficial and may lead to satellite arguments. The court must concentrate upon those acts or omissions which are alleged to constitute actionable negligence.
    5. The acts and omissions alleged to constitute actionable negligence in this appeal are set out in paragraph 27 above. The basic facts upon which the claimant relies are established. The defendants did not provide an approximate valuation of the services claim. The defendants did not inform the claimant that an interim payment was available in the event that the claimant pursued a services claim. Ms Kinsey did treat what the claimant said in the meeting on 23rd January 2001 as putting an end to the services claim. The issue which arises in this appeal is not a question of fact, as Mr Pooles suggested. It is a question of law. Do the facts found by the judge constitute a breach of duty by the solicitors?
Part 5 – Do the facts found by the judge constitute a breach of duty by the solicitors?
    1. It is axiomatic that the contract of retainer defines the scope of a solicitor’s duties. There are many reported cases on the question how far the solicitor should go beyond the strict confines of his retainer. Both counsel in their supplemental skeleton arguments (lodged on the day after the appeal) helpfully cited examples and I bear those examples in mind. The Court of Appeal reviewed some of those authorities in Minkin v Landsberg[2015] EWCA Civ 1152[2016] 1 WLR 1489 at [33] – [38]. Mr Pooles relies upon that passage.
    2. In the present case, the problem is the opposite of that discussed in the Minkin line of authorities. The question is not how far a solicitor should travel beyond the confines of the retainer. The question is whether the solicitor should fulfil the original retainer, in circumstances where the client has closed down one avenue of enquiry. As Henderson LJ observed during argument, the issue concerns client autonomy.
    3. The original retainer required the defendants to advise the claimant about his possible claims for general or special damages and to pursue such claims as were appropriate. Once the claimant had achieved a score of 2Sn (late) in his right hand, the medical evidence existed to support a claim for special damages in respect of decorating, DIY, gardening, car washing and car maintenance. But factual evidence was required as well. The claimant could only pursue such claims if (a) VWF hindered him from performing those tasks and (b) other people were helping him by performing those tasks. The claimant would need to confirm those facts in a separate questionnaire. The claimant’s helpers would also need to complete a questionnaire. The helpers would then be interviewed by telephone.
    4. Ms Kinsey advised the claimant about the possibility of a claim for special damages in respect of services. Her letter to the claimant dated 15thJanuary 2001 stated that the amount of compensation payable under this head “can be significant”.
    5. At the meeting on 23rd January 2001, Ms Kinsey discussed the matter of special damages. She elicited from the claimant that he could not do decorating because of problems with his hands. She explained that the claimant’s helpers would need to support the claim. At that point the claimant said that factual evidence to support the claim for services was not available. Also “he was not too bothered at all” about pursuing such a claim. See findings (viii), (xi) and the attendance note of 23rd January 2001 (quoted in paragraph 17 above).
    6. Mr Watt-Pringle submits that Ms Kinsey should have probed matters in the hope of changing the claimant’s mind. She should have advised that a claim based on decorating may be worth about £5,000.00. She should also have asked the claimant about DIY and gardening. In addition, Ms Kinsey should have told the claimant that if he pursued a claim for services, he would still receive an interim payment of 80%. At one point Mr Watt-Pringle even suggested that Ms Kinsey should have foreseen a later scheme amendment, whereby the interim payments became 92.5% (an allegation which was neither pleaded or pursued below).
    7. I cannot accept any of those arguments. The client was, as the judge found, an intelligent and articulate man. He knew his own mind. He decided not to pursue a claim for special damages and he so instructed his solicitors.
    8. In those circumstances, the quantification of special damages and the availability of an interim payment ceased to be relevant. As the judge observed, it is not the role of a solicitor to tempt the client by referring to large sums, once it is clear that supporting evidence for a claim is not available.
    9. The reasons why the claimant decided to close down discussion about special damages are not, strictly speaking, relevant. The client is entitled to abandon heads of claim for good reasons or bad. Even so, the reasons are fairly clear in this case. The claimant was embarrassed about paying “cash in hand” to Mr Boobier and Mr James. He did not think they would be willing either (a) to complete questionnaires about the help that they had given or (b) to submit to telephone interviews. When it comes to light that people have received cash payments for work done, without disclosing such payments to the tax authorities or perhaps those administering benefits, there can be trouble. These are sensitive matters. A client may not wish his solicitor to probe into what has been going on or to contact other people involved.
    10. In my view, if a client instructs his solicitor that he does not wish to pursue a particular head of claim and that he does not have evidence to support it, the solicitor is not necessarily under a duty to challenge that decision or to try to change the client’s mind. Obviously, issues such as this are fact-sensitive, as Mr Watt-Pringle pointed out. Even so, if the client is an adult of full capacity, there comes a point when his autonomy should be respected.
    11. It is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime. I have read through their substantial file with admiration, bearing in mind the small amount of costs which they received at the end. Neither advocates nor judges should lose touch with reality. The CHA is a scheme for dealing with high volume, low value personal injury cases for fixed costs. There must be a sensible limit upon what we can expect solicitors to do in such cases.
    12. Mr Watt-Pringle relies upon Raley Solicitors v Barnaby [2014] EWCA Civ 686 and Procter v Raleys Solicitors [2015] EWCA Civ 400; [2015] PNLR 24 as supporting his case. But those two authorities are a far cry from the present case. In both Barnaby and Procter the solicitors’ treatment of the case was perfunctory. In neither of those cases did the solicitors even trouble to meet their client.
    13. The counsel line-up in those two cases was similar to that in the present case, with Mr Watt-Pringle appearing for the claimant and Mr Pooles appearing for the defendant solicitors. In Procter, Mr Pooles drew the court’s attention to the difficulties posed for solicitors in modern conditions, where financial constraints may require them to “commoditise” their advice to clients. Tomlinson LJ (with whom Kitchin and Gloster LJJ agreed) did not reach any specific conclusion on that aspect. He did, however, observe that the finding of liability in that case did not “involve the imposition of an unrealistic standard”: see [49].
    14. This court has, therefore, already recognised the need to adopt a realistic standard when assessing the performance of solicitors conducting litigation under a high volume, low cost commoditised scheme. Such schemes may be the only practicable way of facilitating access to justice in such cases at proportionate costs. Therefore, no-one should belittle those schemes. The solicitors must still exercise reasonable skill and care in advising clients and pursuing claims. But the solicitors cannot be expected to turn over every stone and to pursue avenues of enquiry which the client has closed down.
    15. In the present case, unlike Barnaby and Procter, the defendant solicitors did take the trouble to meet their client. Indeed, Ms Kinsey had two separate meetings with the claimant. In the first meeting, she spent 42 minutes explaining the CHA to him and taking instructions. In the second meeting, she specifically explored the issue of special damages for services. Applying a realistic standard (as envisaged by the Court of Appeal in Procter at [49]), I do not think that the court should criticise the defendant solicitors for not going the extra mile.
    16. Let me now draw the threads together. For the reasons set out above, I conclude that on the judge’s findings of fact the solicitors were not in breach of duty. My answer to the question posed in this part of the judgment is no.
Part 6 – Conclusion
  1. For the reasons set out in Part 5 above, the claimant fails on his main ground of appeal. Therefore, the claimant’s subsidiary ground of appeal, which only concerns quantum, does not arise.
  2. Before parting with this case, I express some regret that the claim was ever brought. The claimant is undoubtedly a man with a hand injury, because he lost a finger thirty years ago and he received compensation for that. But he probably did not and does not have VWF. He has recovered £10,482.00 as general damages for VWF under the CHA. That is money to which the claimant may well have no entitlement under the general law of tort. That payment was a windfall for the claimant. It was acceptable to the DTI on a ‘swings and roundabouts’ basis.
  3. As the judge observed below, the CHA is an efficient low-cost scheme which is likely to lead to overcompensation in some cases, as it may well have done in this case. What is regrettable, however, is that a second firm of solicitors then recruited the claimant to bring an action against the first solicitors in order to ‘top up’ his award. The information given to the claimant by the second firm of solicitors “turned his head” so that he was “prepared to advance incorrect assertions” (finding (ii)).
  4. The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements.
  5. In my view, this appeal should be dismissed.