Another year gone, another set of resolutions. I won’t dwell upon how long they will stand. One thing that remains steadfast in the capital is the amount of construction work. One of the largest builders is Shepherd and their workers are getting back to work on several large sites in London.
Shepherd have also been busy, however, in the field of litigation, in particular in a claim against their former Solicitors. Said Solicitors have now become Pinsent Masons LLP. Shepherd have been arguing that its Solicitors should have advised them about how a change in the law affected their extant contracts, by virtue of a form of ‘ongoing’ duty since they often had dealings with their solicitors. The case was complicated by the fact that Pinsent Masons LLP had evolved out of the three firms which Shepherd had contracted with. Nevertheless, Shepherd argued that the net effect was that a ‘Single Contract’ existed between the parties.
This issue came before Akenhead J on the 19th of January last year as part of a strike out application. Pinsent Masons argued that their duties were governed by contract, which did not require them to review previous advice on a regular basis as was contended by Shepherd.
The judge agreed with Pinsent Masons. He held that the contract was the framework which set out the parties’ obligations and on these facts little further need be added. There was no obligation to provide advice when such advice had not been expressly requested or paid for.
Whilst many lawyers flocked to read the judgment and found good cheer therein, it must be noted that there are instances when some form of continuing duty could be implied for a professional. These would include when, for example, an architect produces plans which would need to be reviewed upon material developments (subject to disclaimers), or where there is a family solicitor on a retainer with an understanding that advice would be given from time to time.
The case raised the spectre of lawyers somehow regularly having to review previous advice with ongoing clients. This simply does not reflect the current law on professional liability. It was an argument which even Shepherd could not construct. [If you thought that sounded bad then be grateful I deleted my Shepherd’s pie joke.]
However, do you think there is now a potential liability in the following hypothetical scenario...
A solicitor or barrister is involved at the pleadings stage and gives preliminary advice. He or she is then re-instructed some months later at the next stage in proceedings e.g. an interim hearing. Since doing the pleading, there has been a case in the Supreme Court which wholly alters the client’s prospects. Even if not asked to advise, would you say there is a duty on the lawyer to advise on the Supreme Court case? What if the interim hearing was also affected by it? At what stage, if any, would you expect there to be a duty to advise on the altered prospects?