PI Brief Update

Court of Appeal assesses the scope of solicitors’ duty of care to prospective clients during an initial call to their helpline - Nancy Kelehar, Temple Garden Chambers

24/02/24. Miller v Irwin Mitchell LLP [2024] EWCA Civ 53

Date of Judgment: 01/02/2024

Background

Whilst on holiday in Turkey in May 2014, the Claimant slipped and fell down some stairs in the hotel in which she was staying. She broke her leg and underwent surgery in Turkey. Upon returning to England, she developed an infection and, 18 months post-accident, she required an amputation of her lower leg.

The Claimant had an initial call with the Legal Helpline at Irwin Mitchell (IM) on 19 May 2014, just six days after the accident. During this telephone call, she was provided with preliminary advice which included that personal injury claims were subject to a three-year limitation period. At the end of the call, the Claimant was informed that the matter would be referred to IM’s International Travel Litigation Group (ITLG).

The next day, ITLG followed up by way of (unanswered) telephone call and a letter seeking further information and documents. Those documents were not supplied by the Claimant until around 11 months later in April 2015.

In January 2016, IM were ready to proceed with her claim and provided a CFA. A letter of claim was sent to the package holiday provider, ‘Lowcostholidays’ (LCH), in February 2016. When LCH sent this to their insurers, HCC, they declined cover on the basis that LCH had failed to comply with the notification provisions of the policy. LCH went into administration in July 2016. As a result, the Claimant had no prospect of receiving payment even if she were to succeed with her claim for damages.

Proceedings against IM

The Claimant brought proceedings against IM on the basis that during the initial telephone call of 19 May 2014:

• She had entered into an express or implied retainer with IM; and/or
• IM had assumed a common law responsibility; and as such
• IM should have advised her to notify LCH of the accident immediately or taken steps to notify LCH themselves.

The Claimant’s case was that if IM had done so, LCH would have notified their insurers timeously and the policy would have responded to the claim.

At first instance, HHJ Cadwallader held that [8]:

• No express or implied retainer was created during the initial call; the Claimant was only a potential client of IM until January 2016.
• No duty of care equivalent to that arising under a contractual retainer was owed to her until that point.
• There was no duty on IM to advise the Claimant to notify LCH of the accident or to remind LCH to notify its insurer at any time prior to the letter of claim.

The Appeal

On appeal, the refined position advanced on behalf of the Claimant was that by advising her about the limitation period of her claim, IM had assumed a duty to advise the Claimant to take reasonable steps to protect her position [39] and they had breached this duty by giving incomplete advice [47].

The Court of Appeal had ‘no difficulty’ accepting the submission that as IM would expect callers to rely on what they were told, IM had assumed a duty to take reasonable care in giving the advice [41-42]. However, the voluntary assumption of responsibility of IM was for the limited task undertaken: providing preliminary legal advice of a limited and general ‘high level’ nature. Detailed advice would only follow upon review by the specialist legal team [43-44].

Undertaking a fact-sensitive enquiry as to the ambit of the duty [45], the Court of Appeal found that in respect of the call on 19 May 2014:

• The quintessential purpose of the call was for the Claimant to ascertain whether she had a legal basis for bringing a claim. The Claimant had no legal obligation to tell LCH about the accident and there were no other steps that the Claimant needed to take in May 2014 in order to preserve her right of action against LCH [49].
• IM took it upon itself to offer high-level preliminary advice and the advice given on those topics was accurate [67].
• Advice about notifying LCH could not be said to be ‘reasonably incidental’ to or ‘part and parcel of’ advice about the limitation period for bringing the claim [62; 76].

Interestingly, the Court of Appeal considered that the initial assessment of the value of the claim may have had a bearing on what IM’s adviser had in contemplation during the initial call. In May 2014, the injury appeared to be a broken leg of an unemployed middle-aged woman (a potential fast-track claim). Amputation was not anticipated.

In the Court’s view, a solicitor in IM’s position had no particular reason to expect the damages to be much more than LCH would be likely to have to pay from its own resources under its insurance policy [72]. Thus, the risk that the insurer might refuse to cover is not something which ought to have been a matter of great concern at that time, taking this issue even further outside of the scope of the preliminary high-level advice.

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