Court of Appeal
Miller v Irwin Mitchell LLP
[2024] EWCA Civ 53
2024 Jan 23;
Feb 1
Phillips, Andrews, Falk LJJ
NegligenceDuty of careScope of dutyClaimant seeking to claim damages from travel operator for accident sustained whilst on holidayClaimant calling solicitors’ legal helpline six days after accidentClaimant only entering into retainer with solicitors several months after accidentTravel operator failing to inform insurer of claim within time period specified in insurance policy Whether solicitors’ helpline adviser assuming duty of care to claimantWhether scope of duty of care extending beyond preliminary adviceWhether helpline adviser under duty of care to advise claimant to notify travel operator of claim

The claimant sustained an accident on 13 May 2014 whilst on holiday in Turkey. On 19 May 2014, the claimant rang the defendant solicitors’ free legal helpline and had a telephone conversation with one of its operatives. On 25 January 2016 the defendant informed the claimant that it was ready to proceed with her claim for damages against the travel operator and sent her a conditional fee agreement to sign. In February 2016, the defendant sent a letter of claim to the travel operator requesting that it notify its insurers immediately. The travel operator notified its insurers in March 2016, over 21 months after the accident. The insurer declined cover for the claim on the basis of late notification in accordance with the terms of the insurance policy, and the travel operator subsequently went into administration. It followed that even if the claimant’s claim for damages succeeded, she was unlikely to be paid. The claimant brought a claim in negligence against the defendant, on the basis that she had entered into an express retainer with them on 19 May 2014 when she had called the legal helpline. The judge held that (i) no express retainer was entered into before January 2016, at which date an implied retainer arose, and no duty of care was owed to the claimant until then; (ii) the defendant had been under no duty to advise the travel operator of the accident, or directly to remind the travel operator to notify its insurer at any time prior to sending the letter of claim; (iii) if the claimant had been advised to notify the travel operator of the claim on 19 May 2014 she would have done so, with the result that the operator would then have notified its insurer in a timely manner and within the terms of its insurance policy; however if the notification had happened after 8 April 2015, the insurer would still have declined to cover on the basis of late notification. The claimant appealed contending, inter alia, that on 19 May 2014 when she rang the helpline, the defendant owed her a duty at common law to exercise reasonable care in giving the advice provided on that occasion. Since the adviser chose to inform the claimant that the limitation period for bringing a claim was three years, she had also been under an obligation to advise the claimant to notify the tour operator of the accident if she had not already done so.

On the appeal—

Held, appeal dismissed. The fact that the advice on the defendant’s legal helpline was provided gratuitously was not a bar to a finding of a duty of care, since the firm was operating a “legal helpline” staffed by law graduates who had been trained for that purpose, and it was clearly envisaged that the legal advisers who spoke to callers on that helpline would be providing some legal advice to them. In those circumstances the defendant had assumed a duty to take reasonable care in and about the advice it gave. The defendant would expect the callers to rely on what they were told, it was reasonable for them to rely on it, and there was no disclaimer apart from an explanation that the scope of the helpline was limited to (i) providing general preliminary legal advice and (ii) ensuring that the caller did not already have a solicitor for the matter they were calling about. It followed that there was a voluntary assumption of responsibility by the defendant for the limited task undertaken, namely the provision of preliminary legal advice of a limited and general “high level” nature to a prospective client. Given that the advice given on the legal helpline was general and preliminary, and it was made clear by the legal adviser that it was of that nature, the caller would understand that it was not set in stone, and that detailed advice relating to the specific circumstances of the caller’s case could only follow after the specialist legal team to which they would then be referred had examined the matter in more detail. At the time that the claimant made the call to the defendant’s helpline, the risk that the insurer might refuse cover because the tour operator failed to notify it of the accident was not something which ought to have been, nor would it have been, a matter of such concern that a reasonable solicitor would have felt compelled to tell the claimant to notify the travel operator immediately, in order that it could notify its insurer. It was not the case that simply by informing the claimant that a claimant had three years from the accident in which to issue a claim for damages, the defendant’s helpline operative had assumed a responsibility to advise her to take a step to safeguard against the risk that the tour operator already knew about the accident but nevertheless would not notify its insurer timeously, even if (which was not accepted) that risk would have been within the reasonable contemplation of a legal adviser in her position and at the very first point of contact with the prospective client. Furthermore, what the helpline operative said about the limitation period could not be characterised as providing some kind of reassurance to the claimant that there were no other steps she needed to take to protect her position. Accordingly, there had been no assumption of responsibility as contended for by the claimant in the present case (paras 40–44, 72–76, 94, 95, 96).

Spire Property Development LLP v Withers LLP [2023] 4 WLR 56, CA applied.

Robert Weir KC, William Thorpe and Thomas Westwell (instructed by Bond Turner, Liverpool) for the claimant.

Andrew Warnock KC and Andrew Spencer (instructed by Kennedys) for the defendant.

Isabella Marshall, Barrister

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