It can be a temptation for firms to start work and to advise clients before having set up a proper retainer with that client. A recent case has examined the circumstances in which a solicitor might potentially incur a liability before entering into such a retainer. Fortunately the solicitor was held not have owed any duty to the client but there are lessons for practitioners to learn from the decision.
In the case of Miller v Irwin Mitchell LLP (2022), Mrs Miller contacted Irwin Mitchell following an accident on holiday in Turkey in May 2014 having seen a TV advertisement for their legal helpline. She spoke to a helpline advisor at Irwin Mitchell who provided some generic advice on making a personal injury claim against the travel agent and was asked by Irwin Mitchell to provide further documents so they could assess her claim. The matter then went quiet until April 2015 when the solicitors received sufficient documents to complete a conflict approval check. Some work was carried out by the firm in order to establish the viability of the claim (including seeking Counsel's (free) advice on the travel agent's terms and conditions but it was not until January 2016 that Mrs Miller and Irwin Mitchell entered into a Conditional Fee Agreement (CFA). In February 2016 Irwin Mitchell sent a letter of claim to the travel agent but it transpired that the travel agent had failed to inform its insurers of the claim until March 2016, despite having known of the accident since May 2014. The travel agent's insurers declined cover and the travel agent went into administration. Subsequently Irwin Mitchell informed Mrs Miller that her case was no longer viable to pursue and they closed their file in April 2017. Unable to pursue her claim against the travel agent, Mrs Miller issued proceedings against Irwin Mitchell claiming that their negligence and breach of retainer had deprived her of a potentially valuable claim.
The decision at first instance
The central issue before the court was whether, and if so when, an express contract of retainer between Mrs Miller and the firm was formed or an implied retainer was assumed: was it in May 2014 (as contended by Mrs Miller), January 2016 (as contended by Irwin Mitchell) or another date?
HHJ Cadwallader held that no retainer had come into existence in May 2014 as the TV advert from Irwin Mitchell was at best an invitation to treat. Further, the Judge did not accept that there was an implied retainer (which only arises where there is conduct by the parties which is consistent only with the solicitor being retained by the client) at any time. The opening of a file, recording of time and the provision of some high level generic advice about personal injury claims was not sufficient to lead to an implied retainer. His view on this may have been influenced by the fact that Irwin Mitchell wrote to Mrs Miller between May 2014 and April 2015 chasing her for documents and confirming that they had done nothing to protect her right to take legal action against the travel agent.
Ultimately the Judge held that an express retainer did not come into existence until the CFA was signed by Mrs Miller in January 2016 and it was only then that Irwin Mitchell came under a duty to inform the travel agent about the claim and to ask it to notify its insurers. For completeness, the Judge also held that the claim against Irwin Mitchell would have failed on causation grounds in any event because the travel agent's insurance policy would not have responded to the claim.
The Miller case is a welcome endorsement of the principle that, generally speaking, a solicitor is not fixed with liability to a potential client until an express retainer has been agreed between the client and the solicitor.
However, the court's decision does not alter the fact that if a solicitor gives pro-active advice to a client before the retainer is formed and the client relies on that advice to their detriment, the solicitor is still likely to be regarded as being under a duty to take reasonable care in respect of that positive advice.
In addition, care must be taken to ensure that the prospective client is made aware of the fact that formalities are required before a retainer comes into force.
It is also worth noting that Mrs Miller has been granted permission to appeal and it will be interesting to see whether the Court of Appeal takes a different view from the first instance Judge on whether an express or implied retainer had come into existence between Mrs Miller and Irwin Mitchell.