Pearless De Rougemont & Company v Pilbrow

Where a client asks a solicitors’ firm to see a solicitor, and the firm supplies a non-solicitor adviser without explaining that person’s status, the engagement may be a contract to provide legal services by a solicitor. If no solicitor performs the work, the firm has failed to perform the contract and cannot recover its fees, even if the work was competent and the client suffered no demonstrable disadvantage. Solicitors may generally delegate work within the firm, but that depends on the client’s actual or implied consent. The issue is one of non-performance rather than merely defective performance. Delay in raising the point does not bar relief where the client learned the adviser’s true status only later.

Pearless De Rougemont & Company sued Stuart John Pilbrow in the county court for unpaid legal fees. Mr Pilbrow had telephoned asking to see a solicitor but was referred to Miss Lee-Haswell, who was not a solicitor. He believed throughout the work, and until shortly before the proceedings, that she was a solicitor.

The District Judge, sitting as an arbitrator under CCR Order 19, held that the firm was entitled to payment and rejected the arguments based on misrepresentation, implied contractual terms and negligence. His Honour Judge Lloyd refused to set aside the award for error of law. The Court of Appeal considered whether the contract was to provide legal services generally or legal services performed by a solicitor, and whether the firm could recover fees after the work had been performed by a non-solicitor.

Appeal allowed. Lord Justice Schiemann gave the judgment, with Lady Justice Butler-Sloss agreeing. The award of the District Judge and the order of the Circuit Judge were set aside.

1. The Court proceeded on the basis that Mr Pilbrow had expressly asked to see a solicitor. The receptionist’s lack of responsibility for allocating work did not resolve the issue. When a client asks for a solicitor, the firm must either refer the client to a solicitor, disclose that the proposed adviser is not a solicitor, or alert the adviser so that the adviser immediately makes the position clear.
2. The firm’s failure to follow that course, and its failure to send an appropriate client-care letter, entitled Mr Pilbrow to assume that Miss Lee-Haswell was being put forward as a solicitor. The firm could not rely on the receptionist’s assumption that the adviser would explain her status, or on the adviser’s lack of knowledge that the client wanted a solicitor.
3. The initial contract was, in the circumstances, a contract to provide legal services by a solicitor. No solicitor performed any of the legal services. The firm therefore failed to perform the contract altogether.
4. The right of solicitors to delegate work to others within the firm will often be implied, but it depends on the client’s actual or implied consent. That ordinary practice did not authorise the undisclosed substitution in this case.
5. The distinction between defective performance and non-performance cannot be resolved by an automatic conceptual rule. It is a matter of impression. This case was properly characterised as non-performance, entitling Mr Pilbrow to treat the contract as discharged. The firm was not entitled to recover anything, notwithstanding that the work had been competently performed and that Mr Pilbrow had not been shown to suffer actual disadvantage.
6. The criticism based on delay was misplaced because Mr Pilbrow did not discover Miss Lee-Haswell’s status until about the time of the proceedings. It was unnecessary to decide the issues concerning misrepresentation or the Misrepresentation Act 1967. Mr Pilbrow did not seek restitution of the £800 already paid.

• Court of Appeal (Civil Division) — Appeal allowed; the award of the District Judge and the order of the Circuit Judge were set aside.
• Brighton County Court, Circuit Judge — His Honour Judge Lloyd refused the application to set aside the District Judge’s award for error of law.
• Brighton County Court, District Judge — Sitting as an arbitrator under CCR Order 19, the District Judge held that the solicitors’ firm was entitled to payment and rejected the defence.