Solicitors handling cases on reduced fees have a lower duty of care to their clients the Court of Appeal has suggested in a recent case. A law firm escaped a claim for damages, in part because the judge considered that there was a limit on what lawyers should be expected to do for the low fees paid.

An ex-miner Mr Thomas had appointed solicitors HJFS, to act on a personal injury claim.  He was suffering from Vibration White Finger (VWF) caused by his work as a miner.  He wanted to claim compensation under a Department of Trade and Industry (DTI) compensation scheme.

To claim, miners had to complete a questionnaire and attend a medical examination.  The DTI then made an offer of damages on the basis of the reports.

Claimants could either accept the offer or seek higher damages – known as a ‘services claim’ – if they were unable to complete household tasks such as gardening or DIY, and were obliged to pay others to perform these tasks for them.  Mr Thomas, who had some difficulty with decorating, was told about services claims by his solicitor.  He decided not to claim the additional amount as it would be difficult to get his decorators to complete the required questionnaire and attend an interview.

Under the DTI compensation scheme, lawyers acting for VWF claimants were paid on a tariff which was substantially lower than solicitors’ normal fees.

Seven years later, Mr Thomas brought a negligence claim against HJFS for failing to advise him to seek higher ‘services claim’ damages.

Mr Thomas’s claim was unsuccessful in court and he took his claim to appeal.  The appeal court upheld the trial judge’s decision.  Lord Justice Jackson ruled that Mr Thomas had already made up his mind not to claim the higher damages available and his solicitor was under no obligation to ‘tempt the client by referring to large sums’.

Lord Justice Jackson also took into account the low fees the solicitors were being paid under the DTI scheme. “I have read through their substantial file with admiration, bearing in mind the small amount of costs they received at the end.  There must be a sensible limit upon what we can expect solicitors to do in such cases,” he said.

The Court of Appeal has taken an unusual step in suggesting that a solicitor’s duty of care can be altered by lower levels of pay,” said James Burgoyne, Director – Claims & Technical, Brunel Professions. “This differs from decisions in other cases, where professionals have been held to normal standards of care, irrespective of the fees they receive.  This may mean that future cases will take increasing notice of a solicitor’s fee level when deciding on the standard of care they owe to their clients.

The case has been reported by Barristers’ chambers Hardwicke on Lexology.

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