Atkins v Dunn & Baker (a firm)

A solicitor who has prepared and sent a draft Will is not automatically or invariably obliged to chase the client for further instructions or execution. Whether a reminder is required depends on the circumstances, including urgency, the client’s understanding, vulnerability, and any conflict affecting the proposed dispositions. A reminder may be necessary where a time-sensitive testamentary step is contemplated. Where the solicitor has completed the instructed task, knows of no vulnerability, and the client understands the consequences of inaction, failure to follow up may not fall below the standard of a competent solicitor. The claimant must also establish that a reminder would have created a sufficient prospect of execution and caused the alleged loss. The evidence here did not establish that causal link.

The claimant, the daughter of the deceased, alleged that the defendant solicitors negligently failed to follow up a draft Will prepared after the deceased’s remarriage had invalidated an earlier Will. The deceased died intestate, and his estate ultimately passed to his widow’s daughter. The claimant’s right of action as an intended beneficiary was common ground, following White v Jones [1995] 2 AC 207.

Mr Recorder Hall dismissed the claim, holding that the solicitor was not under a duty to chase the deceased and that, in any event, the claimant had not proved that a reminder would have changed the outcome. The appeal concerned both the existence of a duty to follow up and causation.

The appeal was dismissed unanimously. Lord Justice Pill gave the leading judgment, with Lord Justice Thomas and Lord Justice Jacob agreeing.

1. No automatic duty to remind. A solicitor who has prepared and sent a draft Will in accordance with the client’s instructions is not invariably or inevitably under a duty to follow the matter up. Retainer rules cover varied situations and do not themselves impose such a duty. The solicitor had completed the discrete task instructed.
2. Duty depends on circumstances. There may be circumstances in which a reminder or further guidance is required. These may include an impending deadline, such as execution before a Budget, or circumstances indicating vulnerability or a need for particular assistance. Clients may also change their minds, including where proposed testamentary dispositions create a potential family conflict.
3. Application to the facts. The recorder was entitled to find that the deceased understood the consequences of doing nothing, that no vulnerability was known to the solicitor, and that the client had to decide whether to proceed. In those circumstances, failure to send a reminder did not fall below the standard of a competent solicitor. The standard of care was not reduced merely because the firm was a busy high-street practice.
4. Causation. The recorder’s alternative finding on causation was unimpeachable. The deceased’s signature on the draft Will did not show when or why he signed it. The later note concerning transfer of his Will was ambiguous and did not establish that a reminder would have led to execution. The evidence therefore did not demonstrate a sufficient causal link between the alleged omission and the loss claimed.
5. As causation failed, assessment of damages did not arise. The appeal was dismissed with costs, subject to detailed assessment if not agreed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division) — Appeal from the Exeter County Court dismissed with costs: [2004] EWCA Civ 263.
2. Exeter County Court — Mr Recorder N Hall dismissed the claimant’s negligence claim on 10 July 2003.