Wilks v Perkins Mainman (A Firm) & Anor

A solicitor's duty to advise is shaped by the client's instructions, the circumstances and the client's apparent characteristics. An experienced businessman may not need unsolicited explanations appropriate for an inexperienced client. A solicitor's reference to a possible third-party offer in correspondence as a negotiating tactic does not, without more, amount to advice that litigation will produce that outcome. An issue pleaded but not materially pursued at trial cannot ordinarily found criticism of the judge for failing to determine it.

Mr Wilks, a former director and 50 per cent shareholder of Warwick Limited, instructed solicitors during a dispute with the company's other shareholder. The solicitors commenced proceedings under section 459 of the Companies Act 1985. Mr Wilks later discontinued them and claimed his abortive costs, alleging negligent advice that litigation was the only option and a failure to advise about the likely valuation of his shares. The High Court dismissed the claim. The appeal concerned whether the first complaint had been properly pursued at trial and whether the solicitors owed a duty to give further valuation advice.

Appeal dismissed unanimously. Carnwath LJ gave the substantive judgment; Jonathan Parker LJ and Ward LJ agreed.

1. The complaint that Mr Mainman had advised that there was no option other than litigation appeared in the pleadings, but it was not materially pursued at trial. The case advanced by counsel focused on the effect of the Jewson offer and the likely valuation of the shares. Mr Wilks accepted in cross-examination that doing nothing was not an option, and that evidence was not corrected in re-examination or closing submissions. The judge was therefore entitled to treat the issue as not requiring separate determination. Carnwath LJ observed that, even if the point had been raised, it had no real prospect of success, but the merits did not need to be decided.
2. The scope of a solicitor's duty of care is variable. It depends principally on the client's instructions, the circumstances and characteristics of the client apparent to the solicitor: Pickersgill v Riley [2004] UKPC 14, at paragraph 7. An experienced businessman may not require the explanations that would be appropriate for an inexperienced client.
3. The judge was entitled to find that the reference to the Jewson offer in correspondence was intended to put pressure on the opposing shareholder and did not amount to advice to Mr Wilks that the court was likely to value his shares at the proposed figure. Mr Mainman had no reason to suspect that Mr Wilks held that expectation. The judge's acceptance of the evidence, after hearing both witnesses and reviewing their dealings, provided no basis for appellate intervention.
4. The appeal was dismissed with costs, to be assessed if not agreed.

1. High Court: Dismissed Mr Wilks's professional negligence claim. The lower judgment's citation is not stated in the judgment.
2. Court of Appeal (Civil Division): Dismissed the appeal unanimously: [2005] EWCA Civ 738. Costs were ordered to be assessed if not agreed.