Appeal rejected in claim for professional negligence against former solicitor. Miller v Irwin Mitchell

The Court of Appeal unanimously rejected the appeal of Mrs Miller in Carol Miller v Irwin Mitchell LLP [2024] EWCA Civ 53 in a claim brought for professional negligence against her former solicitor.

The case is notable for its discussion of the duty of care and scope of duty concerning legal advice clinics staffed by law students. Useful comments on the complex construction of “pay to be paid” clauses in insurance contracts are also noteworthy.

On 13 May 2014, Mrs Miller was on holiday with her husband in Turkey when she slipped and fell down a set of stairs, badly breaking her leg. Following emergency surgery in Turkey and returning to England, she developed an infection, which ultimately led to her leg being amputated.

Mrs Miller retained the Defendant, Irwin Mitchell, to advise and represent her in a claim against the travel operator, Lowcostholidays Spain SLU (‘LCH’). LCH’s insurer, HCC International Insurance Company Plc (‘HCC’), declined coverage in April 2016 due to a failure to comply with its notification provision. LCH subsequently entered administration in July 2016.

Faced with no prospect of recovery for her personal injury, Mrs Miller brought proceedings against Irwin Mitchell. Her primary case was that she had entered an express retainer on 19 May 2014 when she had a telephone conversation with an Irwin Mitchell Legal Helpline operative. Alternatively, a retainer should be implied. Further, or alternatively, that Irwin Mitchell had a duty at common law in tort.

Mrs Miller’s primary allegation was that following her call to the Legal Helpline, Irwin Mitchell should have advised her to notify LCH immediately. Alternatively, they should have given that advice on 8 April 2015 when they reviewed the documents in her claim. Alternatively, they should have notified LCH on their own initiative.

In his judgment at first instance, HHJ Cadwallader held that:

• There was no express or implied retainer was created by the telephone call to the Legal Helpline in 2014.
• No duty was owed under the contractual retainer until mid-2015.
• There was no duty to notify LCH before the letter of claim was sent.
• Had HCC been notified in 2014 via LCH, the policy would likely have responded to the claim.
• Had HCC been notified in mid-2015 via LCH, HCC would still have declined cover because of late notification.

Mrs Miller raised four grounds of appeal.

Firstly, it was alleged there ought to have been a duty at common law or via an implied retainer following the call to the Legal Helpline in 2014. The Court disagreed. It was material that the Legal Helpline was used as a sifting process for potential clients, and by its nature, some client’s claims would not be taken further. Therefore, no retainer could soundly be implied until the legal team had considered all the documents requested, which did not arrive until mid-2015. By then, it was already too late to prevent HCC from declining coverage.

Where there is no retainer, the principles set out in Spire Properties Development LLP v Withers LLP [2022] EWCA Civ 970 at [58] and [61] should be applied. Irwin Mitchell was found to have voluntarily assumed responsibility for law students acting as legal advisors giving ‘high level’ advice. It was clear that the advice was preliminary and detailed advice would only be possible after the required disclosure was made. A multitude of arguments was advanced on the scope of duty, too many to detail here, save to say it was material to the Court’s decision that the advice was preliminary. No wider duty arose until Mrs Miller provided disclosure in mid-2015.

Secondly, it was alleged that Irwin Mitchell had failed to advise Mrs Miller about her accident after she called the Legal Helpline in 2014. The Court disagreed. It was material that documents requested to enable Irwin Mitchell to advise on her claim were not forthcoming until mid-2015. That was, thereby, the earliest date any duty was owed.

Thirdly, it was alleged that the judge erred in finding no prospect of recovery following LCH entering administration due to the excess clause in LCH’s policy with HCC. This ground did not arise, as the Court of Appeal found there was no duty to advise Mrs Miller to notify LCH of the accident before mid-2015. The Court made some remarks about the construction of “pay to be paid” clauses in insurance contracts of this nature, particularly that “the point of construction is far less straightforward than the Judge appears to have thought.”

Fourthly, it was alleged that the judge erred in finding there was a 0% chance of recovery from HCC had notice been given in mid-2015. The Court, again, didn’t need to deal with this point due to its decision on duty of care and scope of duty. It suffices to say that the Court accepted there was “ample evidence” to justify the Judge’s finding that it was highly likely that HCC would have refused cover in 2016 even if they had been notified in May 2014.

Consequently, the appeal was dismissed.

With thanks to Dan Jacklin, a Pupil at Farrar’s Building. For further information or to instruct any of our Members, please contact our Clerking Team.

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