Tomlinson v Lawvue Solicitors & Anor

On applications for strike out or summary judgment, the court must distinguish issues suitable for determination as a matter of law from fact-sensitive questions requiring a trial. A claim should not be summarily disposed of where disputed evidence, the scope of a solicitor’s retainer, causation or recoverable loss requires fuller investigation. Advice may fall within a solicitor’s duty where it is reasonably contemplated or reasonably incidental to the retainer, having regard to all the circumstances and the client’s experience. Claims for distress and inconvenience are generally unavailable for a retainer concerned with legal transactions, and litigation costs must be pursued under the applicable costs rules rather than claimed as damages.

The claimant brought professional-negligence claims against two firms of solicitors arising from the grant of leases and subsequent mortgages over a property converted into two flats without planning permission. The conversion led to enforcement action and alleged financial losses.

The defendants applied for strike out and summary judgment. The court considered the scope of the retainers, alleged advice concerning indemnity insurance and planning permission, causation, recoverable loss, and claims for distress, inconvenience and costs. It also determined applications concerning late evidence, disclosure and notices to prove documents.

1. Relief from sanctions and evidence. Applying the principles in Denton v T H White Ltd [2014] 1 WLR 3926, relief was granted to Lawvue. The delay resulted from an understandable inadvertent failure to communicate an agreed extension, and the prejudice relied upon did not justify preventing the relevant witnesses from giving evidence. The claimant’s strike-out application consequently failed.
2. TW’s application. The dispute over whether TW’s retainer was with the claimant or another person depended on competing evidence and was unsuitable for summary determination. The scope of the retainer and duty required application of the reasonable-contemplation test in Wellesley Partners LLP v Withers LLP [2016] 2 WLR 1351 and the principle that advice reasonably incidental to the work may fall within the retainer, as explained in Minkin v Landsberg [2015] EWCA Civ 1152. Whether advice about indemnity insurance was within the duty, whether it was given, and whether it caused recoverable loss were fact-sensitive issues for trial.
3. Claims for distress or inconvenience were struck out because the lease transaction was not a contract for pleasure, relaxation or peace of mind. Claimed litigation and litigant-in-person costs were also struck out as they were governed by the CPR costs regime.
4. Lawvue’s application. Applying the summary-judgment framework summarised in EasyAir Limited v Opal Telecom Ltd [2009] EWHC 339 (Ch), the court declined to conduct a mini-trial. The alleged effect of the mortgage advice on the claimant’s losses, including mortgage expenditure and lost profits, raised arguable issues of dominant causation, foreseeability and scope of duty. The planning-related expenditure was attributable, on the claimant’s case at its highest, to TW rather than Lawvue and was struck out. Claims for costs, distress, inconvenience and related expenses were also struck out.
5. The court granted TW an order for specific disclosure concerning communications relevant to the identity and scope of the retainer, and granted relief from sanctions for TW’s late notice under CPR 32.19. Costs orders were made on the applications, including 30 per cent of Lawvue’s costs payable by the claimant on application 5 and reciprocal proportionate orders on application 4.

First instance decision. The judgment records that the professional-negligence claim was listed for trial in April 2018.