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Duty of Care – What does it mean?

A Solicitor owes his client the duty to exercise the reasonable care and skill to be expected of a Solicitor

Duty of Care – What does it mean?

A Solicitor owes his client the duty to exercise the reasonable care and skill to be expected of a Conveyancing Solicitor. In the often cited case of Midland Bank v Hett Stubbs (1979), Oliver Jay (as he then was) explained this duty as follows:-

‘Now no doubt the duties owed by a Solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the Court must be aware of imposing upon Solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interests, take it upon himself to pursue a line of enquiry beyond the strict limits, comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession…’

This duty was also described in Saif Ali v Sydney Mitchell & Co (1980), where Lord Diplock said:-

‘No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such there is no reasonably well informed and competent member of that profession could have made. So to the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon.’

Further the extent of the advice required varies depending on the circumstances, including the nature and experience of the client. So in Pickers Gill v Riley (2004) a strong privy council advised that:-

‘It is plain that when a Solicitor is instructed by a client to act in a transaction a duty of care arises. But it is also plain that the scope of that duty of care is variable. It will depend first and foremost upon the content of the instructions given to the Solicitor by the client. It will depend also on the particular circumstances of the case. It is a duty that it is not helpful to try to describe in the abstract. The scope of the duty may vary depending on the characteristics of the client, in so far as they are apparent to the Solicitor. A youthful client, unversed in business affairs, might need explanation and advice from his Solicitor before entering into a commercial transaction that it would be pointless, or even sometimes an impertinence, for the Solicitor to offer to an obviously experienced business man.’

Finally, it is useful to remember the words of Megarry J in Duchess of Argyll the Beuselinck (1972):-

‘In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefits of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence. The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect… On any footing the duty care is not a warranty of perfection.’ In summary it has therefore always been the case that to succeed in a claim for professional negligence, the Claimant must prove three basic elements:-

  • That the professional owed a duty of care
  • That they acted in breach of that duty
  • That the breach was the cause of loss to the Claimant

It is clearly established that the professional is only liable for the loss attributable to the failure which made him negligent, so that if the loss would have occurred in any event without the professional being negligent, the professional will not be responsible for that loss.

David Jones is a Solicitor and Director of MJP Ltd – specialising in Professional Negligence claims

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