Carol Miller v Irwin Mitchell LLP

A solicitor may assume responsibility in tort for limited preliminary legal advice without a retainer, including where the advice is gratuitous. The scope of that duty is objective, contextual and fact-sensitive. Accurate advice about the ordinary limitation period for personal injury proceedings does not, without more, create a duty to advise a prospective claimant to notify the prospective defendant so that its insurer can be informed. Such notification is not ordinarily required to preserve the claimant’s cause of action and is not necessarily incidental to limitation advice. A solicitor is not generally required to protect recovery against a prospective defendant’s insolvency or loss of insurance cover absent a particular reason to foresee that risk. The appeal was dismissed. The Court left unresolved the construction of the policy’s annual aggregate excess clause.

Mrs Miller suffered serious injuries during a package holiday and later brought a professional negligence claim against her former solicitors. She alleged that a telephone consultation on 19 May 2014 created a duty to advise her to notify the tour operator of the accident, so that its insurer could be notified.

Following a trial of preliminary issues, HH Judge Cadwallader dismissed the claim by an order dated 27 July 2022. He found that no retainer arose until around 25 January 2016, that no earlier duty to advise about notification existed, and that notification from April 2015 would not have secured insurance cover. The appeal challenged those conclusions, together with the construction of the policy’s excess clause and the assessment of the lost chance of recovery. The central issue was the scope of responsibility assumed through the limited preliminary advice.

The appeal was dismissed unanimously.

1. The alleged implied retainer on 19 May 2014 was not established. Objectively, Mrs Miller was being treated as a prospective client while Irwin Mitchell’s specialist team considered whether to accept the case. A retainer arose only when both sides were willing to proceed, around late January 2016.
2. Applying the approach summarised in Spire Property Development LLP v Withers LLP [2022] EWCA Civ 970, gratuitous preliminary advice can involve a voluntary assumption of responsibility. The scope of the duty must nevertheless be judged objectively and in context. The advice given through the helpline was limited, general and preliminary. It did not amount to comprehensive advice on every step that might protect the claim.
3. No duty arose to advise Mrs Miller to notify Lowcost, or to notify Lowcost itself. Mrs Miller had no legal obligation to give that notification, and it was not necessary to preserve her cause of action. Advice about notification was not reasonably incidental to advice about the limitation period. The observations in Carradine Properties Ltd v DJ Freeman & Co [1955-1995] PNLR 221 concerned a solicitor-client retainer. Crossan v Ward Bracewell & Co [1984] PN 103 turned on unusual facts involving an express misrepresentation about available funding. The risk of Lowcost’s insolvency or loss of insurance cover was not sufficiently foreseeable to impose the alleged duty.
4. The Court also observed that any challenge based on failure to draw an adverse inference faced the very high threshold stated in Efobi v Royal Mail Group Ltd [2021] UKSC 33. In any event, the relevant issue was principally one of law and the available evidence did not justify the proposed inference.
5. Grounds concerning the annual aggregate excess did not arise once the duty claim failed. The Court considered the policy issues to be integrally interdependent and made no final ruling on the construction of General Condition 4 or on the suggested loss-of-chance analysis. It accepted that the judge had evidence supporting his finding that HCC would probably have relied on the clause, but did not determine what might have happened thereafter.

• High Court of Justice, Business and Property Courts in Liverpool, Business List (Chancery Division): HH Judge Cadwallader dismissed Mrs Miller’s professional negligence claim after a trial of preliminary issues by order dated 27 July 2022.
• Court of Appeal (Civil Division): the Court dismissed the appeal in [2024] EWCA Civ 53.