Ben Lynch, led by Colin Edelman QC (of Devereux), and instructed by Philip Murrin and Parminder Badhan of DAC Beachcroft, successfully defended Fox Williams LLP in an appeal brought by ex-client Mr Lyons, alleging professional negligence. Having successfully defended the entire claim at first instance, the appeal related to only one issue – the alleged duty to warn. In particular, it was alleged that Fox Williams was under a duty to warn Mr Lyons in various ways in respect to Mr Lyons’ potential claims under Long Term Disability (“LTD”) insurance policies. At first instance, Mr Lyons had failed to establish that Fox Williams was under a direct duty to advise on LTD issues and permission to appeal was only granted in respect to the duty to warn allegation.
The Court of Appeal dismissed the appeal and clarified that a duty to warn is co-extensive with a solicitor’s retainer and that cases often cited as authority in support of a legal duty to warn, are in fact decisions about the scope of a solicitor’s duty based on a particular retainer. In particular, Lord Justice Patten, giving the judgment of the Court, held at [42] and [43] that:
“[41] … It is, I think, worth emphasising that although cases like Minkin are often cited as authority in support of a legal duty to warn, they are in fact decisions about the scope of a solicitor’s duty based on a particular retainer. As Laddie J explained in his judgment in Credit Lyonnais which was approved in Minkin, the solicitor’s obligation to bring to the client’s attention risks which become apparent to the solicitor when performing his retainer does not involve the solicitor in doing extra work or in operating outside the scope of his retainer. The risks in question are all matters which come to his attention when performing the tasks the client has instructed him to carry out and which therefore as part of his duty of care he must make the client aware of.
[42] Neither Credit Lyonnais nor Minkin are authority for the proposition that the solicitor is required to carry out investigative tasks in areas he has not been asked to deal with however beneficial to the client that might in fact have turned out to be. [FW] could not have advised Mr Lyons about his rights under the LTD policies or any relevant time limits in relation to the claims unless [it] had carried out a thorough examination of the policies and a certain amount of legal research. Although [FW] received documentation relating to the LTD policies including copies of the policies themselves, the judge has found that [it] was never instructed to do this and Mr Lyons has been refused permission to appeal against the judge’s findings in this respect.”
A copy of the Judgment is here.
