ETRIDGE v PRITCHARD ENGLEFIELD (A FIRM)

A solicitor’s failure to advise a client is not presumed to have caused the client’s loss. Causation remains a question of fact, and the claimant bears the legal burden of proving that proper advice would have produced a different result.

Where a solicitor is asked to advise a person who may be subject to undue influence, the solicitor must consider whether the transaction is one into which the client could sensibly be advised to enter if free from that influence. The advice may require the solicitor to recommend against the transaction and to cease acting if the client persists. However, amendments raising such issues may be refused on appeal where they introduce factual and causation questions not considered at trial.

Mrs Etridge claimed damages from solicitors who admitted that they had failed to explain two charges securing borrowing by her husband and relating to the purchase of The Old Rectory. The trial judge found breach of duty but was not satisfied that proper advice would have prevented her from signing the charges, and awarded nominal damages.

On appeal, Mrs Etridge sought permission to amend her pleading to rely on a wider solicitor’s duty derived from the earlier possession proceedings. She also challenged the judge’s approach to causation and damages. The central issues were whether the proposed amendments should be permitted and whether the admitted negligence caused compensable loss.

1. Amendment refused. The proposed amendments raised new factual issues concerning the advice that should have been given, the parties’ likely responses, and causation. The trial judge had made no relevant findings and further evidence might have been called had the issues been pleaded earlier. Permission to amend was therefore refused.
2. Nature of the solicitor’s duty. The wider duty relied upon was not a new development. It reflected the principles in Powell v Powell [1900] 1 Ch 243, approved in Wright v Carter [1903] 1 Ch 27, and recently applied in Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144. A solicitor advising a person who may be subject to undue influence must consider whether the transaction is one into which the client could sensibly be advised to enter if free from that influence. If not satisfied, the solicitor should advise against it and decline to act further if the client persists.
3. Causation. The claim against the solicitors was an ordinary negligence claim. Causation was a question of fact to be determined on the evidence, as explained in Karak Rubber Co Limited v Burden [1972] 1 WLR 602. The legal burden remained on Mrs Etridge. There was no presumption that the solicitors would have given particular advice or that the client would have accepted it and acted upon it.
4. The judge was entitled to conclude that, by the relevant date, the transactions had progressed so far, and the practical pressures were so substantial, that Mrs Etridge had not proved she would have withdrawn. The Court of Appeal would not interfere with that conclusion. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): Appeal from the judgment of His Honour Judge Behrens, sitting as a High Court judge, dated 25 February 1998. The Court of Appeal refused permission to amend and dismissed the appeal with costs.
• Earlier possession proceedings: The judgment records earlier appeals concerning possession orders, including Royal Bank of Scotland v Etridge [1997] 3 AER 628 and Royal Bank of Scotland v Etridge (No 2) [1998] 4 AER 750. Those decisions formed the background to the proposed amendment.