Cathal Anthony Lyons v Fox Williams LLP (2018)
A solicitor instructed to deal with a client's claim under an accident, death and disablement insurance policy had not been under a duty to warn his client about his rights arising out of the same accident under a long-term disability insurance policy which was not covered by the retainer, nor had a duty arisen to warn him to take advice.
The appellant appealed against the dismissal of his negligence claim against the respondent firm of solicitors.
The appellant had been injured in a road traffic accident. Claims were made under his employer's insurance policies for accident, death and dismemberment (ADD) and long-term disability (LTD). The insurers disputed the scope of the ADD policy and the appellant instructed the respondent to advise. The LTD claim was dealt with by the employer, although the respondent was aware of it. In due course, the appellant decided to leave his employment and the respondent's retainer was extended to advising him in respect of a settlement agreement. As part of the settlement the appellant wanted his employer to pay for his disablement if the ADD insurers did not. The respondent sent a letter of 21 May 2007 to the employer regarding the proposed settlement, including reference to the ADD claim, and stating that the other insurance claims arising from the accident would need to be dealt with separately. A settlement agreement was made including the ADD claim. His claims under both policies became time-barred. He instructed alternative solicitors who succeeded in obtaining payment under the ADD policy. He began the instant proceedings claiming damages for negligence in respect of the LTD claim, or for failure to warn him that he needed to get advice. The judge held that the LTD policy was never part of the retainer, that the strategy adopted in the 21 May letter of separating out the ADD claim from the other elements in the negotiations did not involve the respondent being instructed to advise on the LTD claim, that even if the respondent had volunteered to provide advice he was not satisfied that the appellant would have agreed that it should have been given or paid for, and that there had been no duty to warn.
The appellant argued that when the respondent advised that the LTD claim be dealt with separately from the 21 May letter a duty had arisen to warn him in substantive terms about his rights under the LTD policies and what needed to be done to prevent them from becoming time-barred, alternatively to warn him that the claim might have time limits and that he needed advice.
Duty to warn about rights under the LTD policy - Although cases like Minkin v Landsberg  EWCA Civ 1152 were often cited as authority in support of a legal duty to warn, they were in fact decisions about the scope of a solicitor's duty based on a particular retainer. A solicitor's obligation to bring to a client's attention risks which became apparent to the solicitor when performing his retainer did not involve the solicitor in doing extra work or in operating outside the scope of his retainer, Credit Lyonnais SA v Russell Jones & Walker  EWHC 1310 (Ch) applied. The risks in question were all matters that came to his attention when performing the tasks that the client had instructed him to carry out and which therefore, as part of his duty of care, he had to make the client aware of. Neither Credit Lyonnais nor Minkin were authority for the proposition that a solicitor was required to carry out investigative tasks in areas that he had not been asked to deal with, however beneficial to the client that might have turned out to be. As the judge had expressly rejected the submission that it was necessary for the respondent to examine the LTD policy as part of its retainer, the judge had been correct to reject the case based on a duty to warn about rights under the LTD policy (see paras 41-43 of judgment).
Duty to warn that advice was needed - The alternative formulation of the duty to warn contradicted the circumstances in which it was said to have arisen and the appellant's likely reaction to any such warning. Consideration of the LTD claims had not been postponed; negotiations about the severance agreement in which the LTD claims featured were ongoing and continued, and the LTD claims were being dealt with by the employer. Neither the expansion of the respondent's retainer to include negotiations on the severance agreement, nor the specific advice not to include any reference to the LTD claims in the 21 May letter had triggered a duty to warn of the need to obtain advice on the LTD claims and any relevant time limits (paras 45-47).
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25 Oct 2018
Court of Appeal (Civil Division)
Patten LJ, David Richards LJ, Asplin LJ
LTL 25/10/2018 :  10 WLUK 407 :  PNLR 9
Dominic Chambers QC