In the recent professional negligence case of Graham Thomas v Hugh James Ford Simey Solicitors, the Court of Appeal had to determine whether a firm of solicitors was negligent in following its client’s express instructions, rather than challenging them.
The claimant was a coal miner who had instructed the defendant firm of solicitors to pursue a personal injury claim on his behalf, for damages for vibration white finger (VWF). Having secured a settlement offer for the claimant’s pain and suffering, the defendant informed the claimant that he may be entitled to claim for certain out of pocket expenses. However, the claimant advised the defendant that he was not interested in pursuing this aspect of his claim as, although he had incurred such expenses, he could produce no evidence of them.
Seven years later, and after seeing an advertisement about the under-settlement of VWF claims, the claimant instructed new solicitors to pursue a claim against the defendant.
The Claimant alleged that the defendant had been negligent in:
- Failing to provide him with an approximate valuation of his expenses claim;
- Failing to inform him of the availability of an interim payment;
- Treating his instructions as conclusive of the matter.
While noting that the defendant had not provided an approximate valuation or advised on the availability of an interim payment, the Court of Appeal nevertheless rejected the claimant’s claim. In so doing, it observed that the claimant was an intelligent and articulate man with whom the defendant had discussed the possibility of claiming for any out of pocket expenses. It further held that in these circumstances, the defendant was not negligent in following instructions and had not been under any duty to probe the matter, in the hope of changing the claimant’s mind.
While this might not seem like a surprising outcome given the circumstances of the case, it is not hard to envisage a different outcome where, for example, there is no obvious justification or explanation for a client’s decision not to pursue a particular head of loss, or where the loss in question is large and/or very clearly apparent. A different outcome might also occur where a client’s instructions are not entirely clear, are conditional or are perhaps in some way ambiguous. In such situations, a solicitor might well be found to have acted negligently and/or in breach of retainer by following a client’s instructions and taking steps which cause a client’s legal rights or remedies to be abandoned or prejudiced.
Ultimately therefore, and while solicitors will ordinarily be expected to respect and follow instructions received from their clients, each case will need to be examined carefully to determine whether it is reasonable to do so and, if it is not, whether the solicitors should bear any liability for the loss of any rights or remedies sustained by their client.
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