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Limiting solicitors’ liability

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11/01/2016

Limited retainer = limited duty

In the recent case of Minkin v Landsberg [1] the client (Ms Minkin) had negotiated settlement of a dispute before consulting a solicitor. Ms Minkin then asked the defendant (the solicitor) to record the settlement in a consent order, in a form likely to be approved by the court. When Ms Minkin later came to regret the terms of her settlement, she claimed that the solicitor should have gone further than merely documenting the settlement and should have advised on the merits of the deal. The Court of Appeal disagreed, acknowledging the existence and validity of a retainer which limited the scope of the solicitor’s duty.

Practical points

The following important practical points arise, which will be of interest to professionals and clients alike.

  • A solicitor’s contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake. A solicitor and client may limit their retainer accordingly.
  • A solicitor’s duty of care under the law of negligence is to carry out those tasks with reasonable care and skill.
  • It is important that clients must be able to instruct solicitors, and solicitors must be able to accept instructions, on a limited basis. Otherwise impecunious clients may not be able access legal services and solicitors might refuse instructions for fear of an unreasonably broad duty.
  • As a matter of good practice, a solicitor should confirm any limitation to the retainer in writing. If it does not, there is an evidential risk and a court may not accept that any limitation was agreed.
  • However, it is implicit that a solicitor will give advice which is reasonably incidental to the work being carried out.
  • To determine what is reasonably incidental, the court will have regard to all the circumstances of the case, including the character and experience of the client.
  • It is possible that the experience of lenders and commercial clients in certain matters may be such that a limitation on the scope of a solicitor’s duty may be more readily implied.
  • Lenders and commercial clients should therefore check their terms of their solicitors’ retainers carefully. Clients should ensure that any retainers are broad enough that their interests – and therefore their potential for future recovery, should it be required – are sufficiently protected.
  • Clarity of the scope of the retainer, and written confirmation of this, is paramount.

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[1] [2015] EWCA Civ 1152