Fonexco Group Ltd & Ors v Manches (a firm) & Anor

A solicitor’s duties are defined by the scope of the retainer. There is no general obligation to investigate or pursue every matter affecting a client’s interests. A solicitor must not commence proceedings without specific authority.

The standard is that of the reasonably competent solicitor. A solicitor may ordinarily rely on properly obtained advice from competent counsel or a competent foreign lawyer, while retaining an obligation to exercise independent judgment.

Where contractual time has been waived and later made essential by reasonable notice, breach ordinarily arises only when the new deadline expires or the other party clearly repudiates beforehand. The court also held that the Hague Convention did not itself create additional methods of service in Italy.

The claimants alleged that their solicitors negligently or contractually failed to issue and serve English proceedings against Telit before Telit commenced proceedings in Trieste. They also alleged that the solicitors failed to challenge the jurisdiction of the Italian court.

The court rejected the alleged general retainer, and the claim based on failure to challenge jurisdiction was abandoned. The principal issues were whether the solicitors had been specifically instructed to issue proceedings immediately and whether competent solicitors should have issued and served proceedings before the contractual completion deadline.

The court also considered causation, including the fastest lawful method of service in Italy and whether service could have preceded the Italian proceedings.

1. Disposition. The claim was dismissed. The evidence established that the solicitors had been instructed to prepare proceedings for use if completion failed on 3 February 2000, not to issue and serve them immediately.
2. Scope of retainer. A solicitor’s duties depend upon the terms and limits of the retainer. There is no general retainer requiring a solicitor to consider every aspect of a client’s interests. The court applied Midland Bank Trust Co. Ltd. v Hett, Stubbs & Kemp [1979] Ch 384.
3. Authority to commence proceedings. A solicitor is not authorised to commence proceedings without specific authority. The pleaded obligation to issue proceedings and challenge the Italian jurisdiction without specific instructions therefore failed.
4. Professional standard. The relevant standard is that of the reasonably competent solicitor. The court applied the professional-negligence approach in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. A solicitor may generally rely on properly obtained advice from competent counsel or a competent foreign lawyer, provided the advice is not obviously or glaringly wrong. The court applied Locke v Camberwell Health Authority [2002] Lloyd’s Rep PN 23.
5. Contractual timing. The agreement’s original completion date had been waived, and the later notice made time essential on 3 February 2000. Applying Charles Rickards Ltd. v Oppenheim [1950] 1 All ER 420, the court held that Telit had not repudiated the agreement before that date. Immediate proceedings would therefore have been unjustified and potentially prejudicial.
6. Service and causation. The court preferred the evidence that service in Italy required compliance with Italian law. Article 10 of the Hague Convention preserved existing methods of service but did not itself create a postal method. The fastest probable route involved an Italian lawyer, authorisation from a public prosecutor, an Italian translation and service by an Italian bailiff. The court’s causation findings were unnecessary to the result but indicated that service before 9 February 2000 might have been possible only if the process had begun on 1 February.

This was a first-instance decision. The judgment records a trial of preliminary issues ordered by Master Rose on 12 March 2009.