Managing the risk of preliminary professional advice – when can a professional be held to off the cuff advice? (Miller v Irwin Mitchell LLP)

Key takeaways

The case illustrates the importance of defining from the outset the scope and limits of a professional's duty of care (in this case a solicitor) when giving preliminary advice to a prospective client and where there is no engagement letter. The court applied a fact-sensitive and objective approach to determine whether the solicitor had assumed responsibility for advising on matters beyond the limited and general advice given on the helpline.

The court decided as a matter of fact that advice about notifying the tour operator of the accident was not 'reasonably incidental' to the advice about the limitation period for bringing a claim. In Spire Property Development LLP & Anor v Withers LLP [2022] EWCA Civ 970 ("Spire") the court reached the same conclusion on the facts. Both decisions have left open the question of whether the same obligation to advise on matters 'reasonably incidental' to retainers would be applied to cases involving voluntary assumptions of responsibility to non-clients such as these, where there were no retainers. Professionals should be aware that, in other circumstances, not offering further advice on key risks to non-clients for whom they have assumed responsibility, despite only providing preliminary advice, could expose them to the risk of significant liability.

Background

The claimant, and appellant, Mrs Miller, fell down the stairs at her hotel whilst on holiday in Turkey on 13 May 2014. As a result, she suffered an open fracture to her leg and underwent emergency surgery. Unfortunately, she then developed an infection that led to the amputation of her lower leg in November 2015.

Mrs Miller's package holiday was purchased through Lowcost (a travel operator). Under the contract, Lowcost had a duty to take reasonable skill and care to arrange for the provision of the facilities, which it arranged through an intermediary, LTS. Lowcost was liable for any personal injury that arose from the negligence of its sub-contractor LTS.

At the time of the accident, Lowcost was insured by HCC. The policy required Lowcost to notify HCC of any accident that might give rise to a claim, and also to pay and exhaust an annual aggregate excess of £560,000 before HCC would indemnify it for any claims. Although LTS informed Lowcost of the accident on 15 May 2014, Lowcost did not notify HCC at that time.

On 19 May 2014, Mrs Miller called Irwin Mitchell's legal helpline and spoke with an advisor, who provided Mrs Miller with a high-level summary of personal injury law and confirmed that the limitation period to bring a claim for damages for personal injury was three years. However, the advisor did not inform Mrs Miller of the requirement to notify Lowcost of her injury, as required by the Lowcost insurance policy.

The advisor referred the matter to Irwin Mitchell's International Travel Litigation Group, which sent a letter to Mrs Miller on 20 May 2014 requesting further information and documents. Mrs Miller did not provide the requested documents until April 2015 and did not formally instruct Irwin Mitchell and agree an engagement letter until 25 January 2016.

Irwin Mitchell sent a letter of claim to Lowcost on 22 February 2016, requesting that Lowcost notify its insurers of Mrs Miller's claim. Lowcost then notified HCC of the claim but HCC declined cover due to Lowcost's late notification and non-compliance with the excess clause. Lowcost went into administration in July 2016.

As it became clear that there was no possibility of recovery from Lowcost or HCC, Mrs Miller sued Irwin Mitchell for professional negligence, claiming that they had breached a duty of care owed to her under an express or implied retainer or at common law. Mrs Miller alleged that Irwin Mitchell should have advised her on 19 May 2014, or alternatively when they received her documents on 8 April 2015, to notify Lowcost of the accident immediately, or should have done so themselves, and that if they had, the policy would have paid out.

The High Court found that there was no express or implied retainer until Mrs Miller instructed Irwin Mitchell in January 2016 and that Irwin Mitchell had no duty to notify Lowcost of the accident, or to remind Lowcost to notify its insurer, until it did so in the letter of claim of February 2016. The court also found that, had Mrs Miller notified Lowcost of the claim on or after 8 April 2015, there was no chance that the policy would have paid out.

The Court of Appeal's decision

Mrs Miller appealed. The Court of Appeal readily determined that Irwin Mitchell owed the claimant a duty of care regarding the advice it did give her, but dismissed Mrs Miller's appeal, which attempted to extend that duty further¹. Irwin Mitchell did not owe a duty to advise the claimant to notify Lowcost of the accident, or to do so themselves, prior to sending the letter of claim in February 2016, by which time the policy would not pay out.

Retainer

Mrs Miller herself had understood there to be no retainer with Irwin Mitchell at the time she spoke to the legal helpline in May 2014. Indeed, the letter Irwin Mitchell sent on 20 May 2014 specifically stated that only once Mrs Miller had provided the necessary documents would they "discuss whether Irwin Mitchell was able to accept her case".

The Court of Appeal held that the first instance judge was entitled to find that the parties only started to behave as if they were in a solicitor-client relationship in late January 2016.

Duty to advise based on voluntary assumption of responsibility

On appeal, Mrs Miller refined her case by focussing solely on the conversation with the legal helpline advisor on 19 May 2014 as giving rise to a duty of care based on a voluntary assumption of responsibility. The key issue was the scope of this duty. She argued that, by telling her that the limitation period for a personal injury claim was three years, Irwin Mitchell assumed a duty to advise her to take reasonable steps open to her to protect her position, including notifying the defendant (i.e. a wide duty of care). Irwin Mitchell contended that any duty was narrow and confined to the matters advised upon on the call.

The court held that Mrs Miller was not entitled to rely upon the helpline advice on limitation as advice on whether there were any other steps she needed to take to protect her position - it was preliminary general advice.

In what could be of concern to professionals who provide preliminary advice, suitably caveated by the need to give detailed advice in writing following full instructions and consideration, the court had no difficulty in finding that there was a duty of care in these circumstances and noted that the helpline legal advisors were not trained to say that they were not giving any legal advice, nor that the caller could not rely on any advice given during the call. However, the court held that Irwin Mitchell had only voluntarily assumed responsibility for the limited task it undertook (i.e. providing preliminary limited and general high level legal advice to a prospective client).

Whilst there might be scenarios in which a solicitor has a duty to advise a prospective client to take an obligatory legal step to keep their claim alive, such as when it becomes apparent to a helpline legal advisor during a call that a limitation period is about to expire, that was not the case here.

As had been argued in Spire, Mrs Miller's counsel sought to extend the principle that a solicitor is obliged to advise on matters 'reasonably incidental' to those within the scope of their retainer to scenarios such as this, where no retainer applies but a solicitor has assumed responsibility. In Spire, the Court of Appeal affirmed the earlier authorities supporting a solicitor's duty being confined to that which the solicitor had agreed to undertake; whether a wider duty exists for matters said to be 'reasonably incidental' to that duty is very fact specific and will depend on whether the solicitor becomes aware of risks relevant to the matters being advised upon (i.e. whether there is a "close and strong nexus" as it was described in Spire). In Miller, the argument was swiftly rejected by Lady Justice Andrews who did "…not consider that by any stretch of the imagination, advice about notifying the tour operator of the accident could be said to be "reasonably incidental" to advice about the limitation period for bringing a claim for damages for personal injury in this jurisdiction".

A solicitor is generally not obliged to advise a client (even when there is a retainer in place) to take steps to safeguard against the risk of a counterparty's insolvency unless specifically put on notice that they are in financial difficulties². The first instance judge had already found that there was no particular reason to think that Lowcost was at particular risk of becoming insolvent.

While the duty owed by a solicitor remains the same regardless of the quantum of the potential claim, the court considered that there was some force in the argument that, in May 2014, the claim only involved a slightly infected broken leg. Such a claim might have been expected to come within the excess of any insurance policy. It was only after Mrs Miller's leg was amputated in 2015 that she might have recovered over £500,000 and the risk that the insurer might refuse cover became more of a potential issue.

Excess

Whilst it was not relevant to the outcome, the court also discussed the argument as to whether HCC would have declined cover even if they had been notified of the accident in May 2014 because Lowcost had in fact only paid out claims totalling £6,765.78 of the aggregate excess of £560,000 under the policy.

Comment

The case serves as a salient reminder that professionals can assume wider duties of care than intended to non-clients; in this case even for high level preliminary guidance in a swift and limited discussion, well before the firm was retained with an engagement letter and in the absence of detailed instructions.

It will often be the case that professionals will receive inquiries from non-clients and, in an effort to be helpful, will volunteer limited information and advice during pre-retainer discussions. Although the professional may not expect reliance before an engagement letter is agreed and may even give disclaimers on the basis that further consideration could be required, Miller demonstrates that an enforceable duty of care may nonetheless be assumed for the matters advised upon. Further, if information is revealed that ought to have put the professional on notice of a key risk, the professional could be exposed to wider consequences than that intended (and not limited by any contractual limitations in an engagement letter). This may be particularly problematic in scenarios where the prospective client does not subsequently become a client, where the ability to rectify any omission in the initial advice may be limited.

In Spire and Miller the court ultimately found on the particular facts in those cases that the duty assumed (a) did not extend to that which caused the loss and (b) did not include a 'reasonably incidental' duty to advise on the matter that caused the loss. In other cases, however, this distinction may not be so clear, so professionals should take great care before offering up advice before all of the information is available and an engagement letter is in place. Although this might come across as unhelpful, ultimately the recipient of the advice will not be thankful for key warnings being omitted in preliminary and gratuitous advice based upon limited information and analysis.