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No duty of care is owed to solicitors in respect of past or future fees: McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd

News & Judgments
25 March 2021

Tim Chelmick acted for a barrister in a claim for professional fees which was defended, in part, by way of a counterclaim where it was claimed that counsel was liable for fees that the solicitors would have charged had the matter not settled on unfavourable terms as a result of the alleged negligence of counsel. The liability to the solicitors was said to arise in contract and tort. In the first reported case to do so, the Court considered both the common law position and the effect of the COMBAR/CLLS terms (“the Terms”). The Judge concluded that there was no such duty owed by a barrister to an instructing solicitor either in contract or tort. The Judge found that, under the Terms, services are provided to the lay client, reflecting the traditional relationship between counsel, solicitors and lay clients. He rejected the suggestion that there was a concurrent contractual duty to solicitors. He also rejected the imposition of a common law duty, absent a contractual duty, as the parties were “free to make their own bargain”. The solicitors’ counterclaim was therefore struck out and judgment entered for fees that were due.

This Judgment is naturally of some importance to the legal profession, providing welcome clarity that the introduction of contractual terms for counsel did not alter the common law position that counsel owe duties to their lay clients and not to their instructing solicitors.

Tim was instructed by John Bennett and Jo Batchelor of DWF.

Judgment available here: McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525 (Comm).

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Tim Chelmick

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