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

A solicitor retained to monitor a transaction and protect a client’s position must do more than passively rely on the lead solicitor. The retainer may require active oversight, including keeping informed of progress, checking arrangements against a critical deadline, and pressing the lead solicitor to correct an apparent risk. A communication expressing an intention to complete by a specified date does not necessarily establish awareness that completion on that date is essential. Where delay is mounting, it may put the monitoring solicitor on enquiry. If a solicitor relies on an undocumented telephone call as discharging the retainer, the burden of proving its material contents rests on that solicitor.

This was an appeal by Simpson Curtis, the claimant’s former solicitors, against a judgment of Park J dated 21 June 1999. The High Court awarded Twenty Two A Property Investments Limited £2,125,600.62 and costs for negligence in monitoring a property transaction, and dismissed Simpson Curtis’s counterclaim for unpaid fees.

The transaction failed when completion did not occur by the contractual deadline. The central issues were the scope of Simpson Curtis’s retainer, whether its monitoring obligations required it to identify and correct the lead solicitors’ failure to appreciate the deadline, and whether the judge was entitled to draw the relevant factual inferences.

The Court of Appeal unanimously dismissed the appeal. Potter LJ gave the judgment, with which Jonathan Parker LJ and Kennedy LJ agreed.

1. Scope of the retainer. The retainer required Simpson Curtis to work closely with the lead solicitors to protect the client’s position and actively pursue progress. It required more than a passive monitoring role. Simpson Curtis had to keep informed of what the lead solicitors were doing and proposed to do, identify risks against the approaching deadline, and be prepared to influence and press them to put matters right.
2. Effect of the Thursday communication. A message stating that the parties were working towards completion on the deadline, even when accompanied by a completion statement made up to that date, did not confirm that the vital importance of completion on that date was appreciated. In the circumstances of mounting delay, it was insufficient to remove the need for enquiry.
3. Evidence and factual findings. The trial judge was entitled to distinguish honesty from accuracy and general competence from the conduct shown in this transaction. The judge was also entitled to infer from the surrounding evidence that the relevant warning had not been given. Where Simpson Curtis relied on an undocumented telephone call as fulfilling its instructions, the burden of proving the call’s materiality and contents lay on Simpson Curtis. That burden was not discharged.
4. Causation and disposition. The findings that a timely warning would have enabled completion were not challenged. No separate issue of causation arose on the appeal. The findings of breach of retainer and negligence were upheld, and the appeal was dismissed with costs to be assessed if not agreed.

• Court of Appeal (Civil Division) — Twenty Two A Property Investments Limited v Messrs Simpson Curtis (A Firm) & Ors [2000] EWCA Civ 295 (21 November 2000): appeal dismissed with costs to be assessed if not agreed.
• High Court (Chancery Division) — Park J, 21 June 1999: judgment for Twenty Two A Property Investments Limited for £2,125,600.62 and costs; Simpson Curtis’s counterclaim for unpaid fees dismissed.