Defining the scope of legal helpline duties and solicitors’ duties to start acting and advising on a case

Irwin Mitchell has successfully defended a claim arising from principles as to when and how solicitors’ retainers are formed and when duties of care are assumed.

The specific question in issue was whether a solicitor, when first approached by a potential client in a personal injury claim via a legal helpline call, is under a duty to advise the potential client to give a tour operator, as a potential defendant, formal notice of a claim.

The Court of Appeal considered the judgment of HHJ Cadwallader (sitting as a High Court Judge) dated 27 July 2022, and upheld the decision: Irwin Mitchell’s legal helpline was to give general and preliminary advice only. Irwin Mitchell did not assume a duty to provide specific advice during that initial call.

Background

Whilst on a package holiday to Turkey in May 2014, the claimant fell and fractured her leg on some stairs. She underwent surgery whilst in Turkey and the accident was notified to the hotel and the in-resort tour operator via their email inbox.

Upon her return to the UK, on 19 May 2014, the claimant contacted Irwin Mitchell’s legal helpline. The legal helpline operator provided some initial limited advice, including that the time limit for pursuing a personal injury claim is three years. The operator then explained that the claimant’s call would be transferred to Irwin Mitchell’s specialist team who would be in touch to discuss matters further.

Irwin Mitchell’s specialist travel team attempted to telephone the claimant the following day and wrote to the claimant, requesting various documents. Irwin Mitchell’s written correspondence stated that it had taken no action in connection with her claim and that it required the documents before it could decide whether it could accept the instruction. Various chasers of this nature were issued for around a year until April 2015, when the claimant provided Irwin Mitchell with the tour operator booking documents.

Irwin Mitchell considered the prospects of establishing a claim against the tour operator. It then wrote to the claimant in the summer of 2015 to confirm that it would be willing to act on her behalf. The claimant sadly required a lower leg amputation in November 2015, having suffered from a number of infections and matters stalled whilst the claimant recovered.

Eventually, in February 2016 (just under two years after the accident), Irwin Mitchell issued a Letter of Claim to the tour operator, citing that the stairs upon which the claimant fell were dangerous and in breach of local standards. The tour operator sent the Letter of Claim to its insurers, who declined to provide an indemnity as the tour operator had been aware of the accident in May 2014, but did not notify its insurers at the time. Shortly after, the tour operator went into administration and the claimant had no viable defendant to pursue her claim against.

The claim against Irwin Mitchell

The claimant therefore sought to pursue a negligence claim against Irwin Mitchell contending that it ought to have advised her to inform the tour operator of the accident, or indeed had a duty to do so themselves at the time of the original helpline call. Had that happened, the tour operator would have informed its insurers in time and insurers would have met the claim. However, a nuance with this claim was that the tour operator had already been notified of the accident via its resort email inbox, but had failed to notify its insurers of that communication.  

Irwin Mitchell defended the claim on the basis that the initial helpline was for prospective clients to obtain preliminary generic advice and act as a sifting process for Irwin Mitchell as to potential clients. Further, and in any event, until the claimant delivered the requested documents, it could not provide specific advice as to a claim against the tour operator. Irwin Mitchell relied upon correspondence in which it stated it had not taken any action in respect of the claimant’s claim.

First instance judgment

HHJ Cadwallader held that at the time of the original helpline call, Irwin Mitchell did not owe the claimant a duty of care to provide specific advice as to any claim on the basis that no retainer had been entered into. HHJ Cadwallader considered:

1. Express retainer: No express terms had been agreed. Irwin Mitchell had not accepted the case – it said it would refer it internally to consider and be in touch.
2. Implied retainer: An implied retainer should only be implied where the parties’ conduct is such as to be consistent only with the solicitors being retained. Here, Irwin Mitchell consistently told the claimant it needed the documents to consider whether it was able to accept the claimant’s case. The claimant’s evidence was that she understood the advice given on the initial helpline call was generic.
3. Common law duty: At the time of the helpline call, the relationship between the claimant and Irwin Mitchell was that of a solicitor and a potential client. All advice was limited and generic and could not have been understood to be complete or comprehensive. Whilst the claimant was entitled to rely on the advice that was provided, that did not extend to a duty on Irwin Mitchell to provide any particular or case specific advice.

The court concluded that Irwin Mitchell was not under a duty to advise the claimant to formally report the accident to the tour operator, or offer to do so itself, until serving the Letter of Claim. The claim was dismissed.

Insurance law questions as to notification provisions and the operation of excesses in insurance policies were also considered in the underlying judgment, but the claimant did not pursue an appeal of those findings before the Court of Appeal.

The Appeal

On appeal, the claimant’s case was refined to focus solely on the initial helpline call on 19 May 2014 and the advice given during that call. The focus was on HHJ Cadwallader’s finding that had the claimant notified the tour operator at this stage, the tour operator would not have been in breach of its notification requirements and there was a 100% chance that her claim would have been accepted. The claimant alleged that Irwin Mitchell had a duty to advise her to notify the tour operator at this stage, and its failure to do so resulted in there being no viable defendant for her to pursue the personal injury claim against.

In support of this argument, the claimant’s legal team contended that Irwin Mitchell’s advice that she had three years in limitation to pursue a personal injury claim gave her a misleading impression that she could “relax”, when in fact Irwin Mitchell allegedly ought to have advised her to inform the tour operator.

The Court of Appeal unanimously dismissed the appeal in its entirety. It found:

1. No duty of care existed at the time of the helpline call and the advice given was preliminary and general

It was acknowledged there was no express or implied retainer between the claimant and Irwin Mitchell, but it was argued that there was a duty of care. Referring to the summary as to the scope of duty of care in Spire Property Development LLP v Withers LLP [2022], the Court of Appeal upheld the principle that the advice, having been provided gratuitously, is not a bar to finding a duty of care.

However, the advice given on the May 2014 phone call was general and preliminary and this was made clear by the legal adviser. The claimant would have understood that detailed advice relating to the specific circumstances could only follow after the specialist legal team, to which they would then be referred, had examined the case in more detail.

The Court of Appeal held that it could not see how, by informing the claimant she had three years from the accident in which to issue a claim for damages, the legal helpline advisor had assumed a responsibility to advise the claimant in respect of notification of the tour operator or its insurers of the incident. This was particularly so in circumstances where it had not been resolved that a claim could be made. 

The Court of Appeal also rejected the characterisation that some form of reassurance was given to the claimant that there was no other steps she needed to take to protect her position and she could “relax”. 

2. No duty to advise on risks of an opponent’s insolvency

Upholding the principles of Pearson v Sanders Witherspoon [2000], the Court of Appeal noted that, in general, a solicitor is not even obliged to advise a client to take steps to safeguard against the risk of unenforceability of a judgment due to insolvency of its opponent, unless they are put on notice of difficulties. In this case, at the time of the helpline call on 19 May 2014, Irwin Mitchell understood the claim to be that of a broken leg. It did not develop into a lower leg amputation until 18 months’ later. Therefore, the value of the claim would likely have fallen within the tour operator’s excess.

Accordingly, the risk that the insurer might refuse cover because the tour operator failed to notify it of the accident is not something which ought to have been a matter of such concern to a solicitor. In that context, a reasonable solicitor would not have felt compelled to advise the claimant to notify the travel operator immediately so that the travel operator could notify its insurer.

Comment

The Court of Appeal’s decision provides a welcome clarification as to the scope of duty solicitors assume when operating a legal helpline and/or when engaging with clients generally before a retainer comes into effect. If generic advice is offered, that advice must be correct. But the offering of general advice does not come with an assumption of a wider scope of duty.

Paul Castellani and Chloe Bingham of Kennedys represented the successful respondent. Counsel for the successful respondents were Andrew Warnock KC and Andrew Spencer of Deka Chambers.