Court of Appeal rules on extent of solicitors’ duty to challenge their clients’ instructions

Graham Thomas v Hugh James Ford Simey Solicitors [04.09.2017]

The Court of Appeal decision in Thomas v Hugh James Ford Simey is of importance to personal injury lawyers and their professional indemnity insurers as it recognises that lawyers are not necessarily obliged to challenge a client’s decision if they do not wish to pursue a particular head of claim. As Lord Justice Jackson succinctly remarked “…if the client is an adult of full capacity, there comes a point when his autonomy should be respected”.

The facts

The claimant, Mr Thomas, was a coal miner who instructed the defendant solicitors under a Department of Trade & Industry claims handling scheme (the CHA) set up to deal with damages claims for Vibration White Finger (VWF).

In early 2000, following a meeting with the defendant at which they explained the CHA scheme to him, Mr Thomas was assessed as having VWF. In January 2001, the DTI offered £10,373 in respect of general damages. The defendant wrote to the claimant advising him of the offer, explaining that it did not take account of any claim he might have in respect of special damages and that the compensation payable in such cases could be significant.

Mr Thomas attended the defendant’s offices to discuss the offer. The defendant’s attendance note records that they discussed special damages with Mr Thomas. Mr Thomas explained that the individuals who had provided the services had done so on a cash in hand basis and would be unwilling to provide evidence concerning this. In any event, he wanted to conclude the matter quickly. On that basis, he accepted the DTI’s offer.

Seven years later, Mr Thomas saw an advertisement placed by another firm of solicitors stating that many VWF claims had been under-settled. Mr Thomas went to see these solicitors who, in the words of the original trial judge, “turned his head and bred a sense of grievance such that he is prepared to advance incorrect assertions”. Mr Thomas issued proceedings against the defendant alleging they had provided inadequate advice about the possible claim for services received and, if properly advised, he would have made a claim in respect of decorating, DIY and gardening which he valued at £16,654.

The decision at first instance

The claim was dismissed at first instance. The Judge found the failure to provide a valuation of the potential claim for services or advise about the availability of an interim payment was not a breach of duty, particularly when it had been established that “…the evidence which would be required for the claim was not available”.

It made no difference whether Mr Thomas would have acted differently had he been told the size of the potential claim.

Mr Thomas appealed the decision.

The decision on appeal

Jackson LJ rejected the submissions put forward on behalf of Mr Thomas that the defendant should have probed matters in the hope of changing the claimant’s mind. He held that “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… 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 try to change the client’s mind.”

Comment

Whilst Jackson LJ placed some significance on the nature of the CHA scheme in determining the extent of the duty of care owed by the defendant solicitors, the decision still has potentially wider relevance for solicitors advising in respect of personal injury claims. It is clear Jackson LJ considered there was a point at which a client’s decision not to pursue a claim could and should be accepted. Each case however will turn on its facts - in particular, whether the solicitor meets the client as well as the capacity and sophistication of the client in question.

Jackson LJ also levelled some criticism at the solicitors who effectively generated Mr Thomas’s claim commenting that: “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”.

Jackson LJ’s judgment provides some timely guidance as to the conduct of professional negligence claims commenting that: “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 rarely beneficial and may lead to satellite arguments. The court must concentrate upon those acts or omissions which are alleged to constitute actionable negligence”.

Read other items in the Professions and Financial Lines Brief - March 2018