This is an update on our 24 November 2022 article regarding the commencement of a law firm's retainer, following the recent Court of Appeal decision in Carol Miller v Irwin Mitchell LLP [2024] EWCA Civ 53.
Factual Background
Mrs Miller was seriously injured following a fall on holiday in Turkey on 13 May 2014 and rang Irwin Mitchell's free legal helpline to seek initial advice on 19 May 2014. However, Mrs Miller took a considerable amount of time to provide the documents that Irwin Mitchell had requested, and it was not until 25 January 2016 that Irwin Mitchell was in a position to proceed with her claim and so sent her a CFA to sign. A Letter of Claim was sent to Mrs Miller's travel operator on 22 February 2016, who then notified its insurers.
Cover was declined for Mrs Miller's claim by the travel operator's insurers in April 2016 as under the terms of the policy they had delayed in notifying their insurers of the accident. The travel operator then went into administration in July 2016, meaning even if Mrs Miller's claim had been successful, she would not have been paid.
Mrs Miller then brought a claim against Irwin Mitchell in which she argued that she entered into a retainer with them on 19 May 2014 and therefore should have been advised to notify the travel operator of her injuries.
First Instance Decision
Mrs Miller's claim was dismissed at a preliminary issue hearing in the High Court in 2022 where it was held that:
- There was no express or implied retainer between Mrs Miller and Irwin Mitchell until the CFA was sent on 25 January 2016 and therefore Mrs Miller was not owed a duty of care until that date.
- Irwin Mitchell was not under a duty to advise Mrs Miller to notify her travel operator of her accident, to directly advise the travel operator themselves of the accident, or to tell the travel operator to notify its insurer at any time prior to sending the Letter of Claim on 22 February 2016.
Claimant's Appeal
The Claimant appealed the first instance decision on various grounds including that:
- Irwin Mitchell owed her a duty at common law to exercise reasonable care in giving the advice provided to her, or a contractual duty of care under an implied retainer, from 19 May 2014.
- As the helpline advisor had mentioned the limitation period for bringing a claim, Irwin Mitchell was also under a duty to tell Mrs Miller to inform the travel operator of her accident, or to do so themselves.
The Claimant's appeal was dismissed. The Court of Appeal concluded that:
- There was an abundance of evidence showing that the parties did not have an implied retainer. The helpline was a way of attracting prospective clients and the question of a possible retainer would only arise when the relevant legal team at Irwin Mitchell had reviewed the information and documents requested from Mrs Miller.
- There was a voluntary assumption of responsibility by Irwin Mitchell to give limited, preliminary and high-level advice through the helpline on matters such as limitation, and the firm was under a duty to ensure that advice was "accurate and truthful", as it was in this case. However, there was no extension to the duty of the solicitor to advise on matters beyond what was "reasonably incidental".
This decision acts as reasonable comfort for law firms and insurers alike who offer similar legal helplines (both as a benefit as part of insurance policies, but also as a method in attracting new clients and work) as it seeks to set boundaries as to the duties owed to a client/potential client prior to a retainer being entered into. However, it does also act as a stark reminder that a duty of care could, in certain circumstances, be implied from an initial call and, therefore, great care should be taken when legal advisors are dealing with potential clients from the outset.
