Balogun v Boyes Sutton & Perry (A Firm) (Rev 1)

A solicitor’s duty is defined by the retainer and the client’s express or implied instructions. Ordinarily, the solicitor need not investigate factual matters which the client has instructed do not require attention. The objective standard is that of a reasonably competent practitioner, assessed by the court rather than determined by a witness’s admission. A solicitor advising on a lease must give specific warning of a legal risk only where the transaction presents a real scope for dispute on the relevant point. Where the lease rights are sufficiently broad and no such risk is established, no additional warning is required.

The claimant brought proceedings against his solicitors for professional negligence and breach of contract arising from the acquisition of a 15-year commercial underlease intended for restaurant use. He alleged failures concerning rights to use a ventilation shaft, planning condition 4, the adequacy of plans supplied for a landlord’s licence, and an outdoor seating area.

The court tried preliminary issues concerning breach of duty, primary causation and contributory negligence. The central questions were whether the claimant had instructed the solicitors that ducting was required, whether the underlease created a legal risk requiring advice, and whether further investigations or more detailed plans were required.

1. Claim dismissed. The claimant failed to prove any breach of duty. It was therefore unnecessary to determine causation or contributory negligence.
2. The solicitor’s duty arose from the retainer and was limited by the claimant’s instructions. Applying Pickersgill v Riley [2004] UKPC 14, the solicitor was not ordinarily required to investigate matters outside the express or implied scope of those instructions. The claimant had not told the solicitor before completion that ducting needed to be installed in the ventilation shaft. The solicitor was entitled to accept the instruction that no further work was required.
3. The underlease gave the claimant the right to connect into and use the ventilation shaft. The rights granted by Schedule 1 of the headlease and clause 3 of the underlease were sufficiently broad. Following Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson [2001] EWCA Civ 1360, an additional warning would be required only if there were a real scope for dispute about that right. No such risk existed. The superior landlord’s objection concerned the later proposed chimney, which had not been disclosed to the solicitor.
4. The solicitor was not in breach concerning planning condition 4. The claimant had said that no further work was required and had made his own enquiries of the local authority. Any further enquiry would probably have revealed only the planning register, not the physical condition of the shaft, and would not have put the solicitor on notice that the instructions were factually wrong.
5. The objective standard of reasonable competence was for the court to apply. A witness’s concessions could not determine liability: Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49. The solicitor had already drawn attention to the need for greater detail in the plans. The claimant declined to incur the cost, and the immediate landlord ultimately granted the licence without requiring more detail.
6. No negligence was established concerning the outdoor seating area. The issue was minor, caused no substantial loss, and the claimant had been copied into the relevant correspondence without objection.