Twenty Two A Property Investments Limited v Messrs Simpson Curtis (A Firm) & Ors

A solicitor’s monitoring role is governed by the scope of the retainer and may require active protection of the client’s interests. Where a transaction is subject to a critical contractual deadline, the solicitor must remain sufficiently informed to identify risks, make necessary enquiries and, where appropriate, influence or press the lead solicitor to secure timely completion. A communication expressing an intention to complete by the deadline may still require further enquiry if it does not demonstrate awareness of the deadline’s critical nature. An accompanying completion statement does not necessarily remove that obligation.

Twenty Two A Property Investments Limited retained Simpson Curtis, its former solicitors, to monitor a property transaction and protect its interests. The transaction depended on completion by 26 February 1990. The sale failed because the lead solicitors did not appreciate that date was a final deadline, and 22A recovered damages at trial for Simpson Curtis’s negligence and breach of retainer.

Park J gave judgment for 22A for £2,125,600.62 and dismissed Simpson Curtis’s counterclaim for unpaid fees. Simpson Curtis appealed, challenging the scope of its retainer, the findings of breach and the inferences drawn from the evidence. The central issue was whether its monitoring obligation required active intervention to ensure that completion occurred by the contractual deadline.

Potter LJ gave the judgment of the court. Kennedy LJ and Jonathan Parker LJ agreed. The appeal was dismissed unanimously.

1. Scope of retainer. The retainer required Simpson Curtis to work closely with the lead solicitors to protect 22A’s position and actively pursue progress. The description of the role as monitoring did not justify a passive approach. Simpson Curtis had to keep informed of what the lead solicitors were doing and proposing, identify matters at risk, and be prepared to influence or press them where progress was inadequate.
2. Critical deadline. Against the background of mounting delay and the approaching 26 February deadline, Simpson Curtis had a duty to ascertain the position in sufficient detail to ensure that completion was on course. A message stating that the parties were working towards completion on that date expressed an intention but did not confirm appreciation of the date’s vital contractual significance. It should have prompted further enquiry. The accompanying completion statement was insufficient to remove that need.
3. Assessment of evidence. The trial judge was entitled to reject the inference that a lengthy telephone call must have reassured Simpson Curtis that completion would occur on time. Simpson Curtis relied on that call as fulfilling its instructions, but it bore the burden of proving the call’s materiality and contents. The absence of an attendance note and the lack of any positive recollection meant that the judge’s conclusion could not be faulted.
4. Appellate review and disposition. Findings that the solicitor’s conduct on the Thursday and Friday constituted breach were supported by the evidence and were not displaced by findings that he was honest, conscientious, careful and competent generally. Causation was not challenged. The judgment below was upheld, and the appeal was dismissed with costs to be assessed if not agreed.

1. Court of Appeal (Civil Division): In [2000] EWCA Civ 294, the court upheld the findings of breach and dismissed Simpson Curtis’s appeal with costs.
2. High Court, Chancery Division: Park J gave judgment for 22A for £2,125,600.62 and costs, and dismissed Simpson Curtis’s counterclaim for unpaid fees.