Thomas v Hugh James Ford Simey Solicitors

In professional negligence claims, a solicitor’s duties are defined by the retainer and assessed by a realistic standard. An adult client of full capacity may abandon a head of claim. Where the client instructs the solicitor not to pursue it and says that supporting evidence is unavailable, the solicitor is not necessarily required to challenge that decision, quantify the claim or explain interim payments. Client autonomy is important, particularly in modest claims conducted under high-volume fixed-cost schemes. Solicitors must still exercise reasonable skill and care, but need not pursue avenues of enquiry that the client has closed down.

The claimant instructed the defendant solicitors to pursue compensation under the Claim Handling Arrangement for Vibration White Finger. He accepted general damages but did not pursue special damages for services after telling the solicitor that supporting evidence was unavailable and that he was not concerned to proceed. He later brought a professional negligence claim, alleging failures to value the services claim, explain interim payments and challenge his decision. Mr Recorder Cameron dismissed the claim. The Court of Appeal considered whether the established facts amounted to a breach of duty.

Appeal dismissed. Lord Justice Jackson, with whom Lord Justice Henderson agreed, held that the judge’s findings did not establish a breach of duty.

1. Scope of the retainer. The contract of retainer defines the scope of a solicitor’s duties. The issue was whether the solicitors had to continue advising on a head of claim after the client had closed down that avenue. The court distinguished the broader retainer issues discussed in Minkin v Landsberg [2015] EWCA Civ 1152; [2016] 1 WLR 1489.
2. Client autonomy. An adult client of full capacity is entitled to abandon a head of claim for good reasons or bad. Where the client instructs the solicitor not to pursue the claim and states that supporting evidence is unavailable, the solicitor is not necessarily under a duty to challenge the decision or try to change the client’s mind. Once the services claim had been closed down, its valuation and the availability of an interim payment ceased to be relevant.
3. Realistic standard. Solicitors conducting high-volume, low-value claims under a fixed-cost scheme must exercise reasonable skill and care, but cannot be expected to turn over every stone or pursue enquiries that the client has closed down. Raley Solicitors v Barnaby [2014] EWCA Civ 686 and Procter v Raleys Solicitors [2015] EWCA Civ 400; [2015] PNLR 24 were distinguished because the solicitors’ treatment in those cases was perfunctory. Procter was also applied as recognising the need for a realistic standard.
4. Application. The solicitors had advised the claimant about special damages, met him, explored the issue and recorded his decision not to proceed. The subsidiary quantum ground therefore did not arise.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the conclusion that the solicitors were not in breach of duty.
2. County Court, Leeds Combined Court Centre: Mr Recorder Cameron dismissed the claimant’s professional negligence claim after finding no breach of duty.