In this article, Melody Hadfield sets out five key principles which determine the ambit of solicitors’ duties and provides insight into how those principles interrelate. Melody has significant experience of solicitors’ negligence claims in a wide range of contexts (including claims concerning conveyancing and other property transactions, corporate restructuring, investments and claims arising from the alleged misconduct of litigation).
Many claims against solicitors involve an allegation that particular advice ought to have been given or particular investigations carried out. There is a wealth of case law concerning the ambit of a solicitor’s duty to their client. A number of principles have emerged from this case law; however, it is not always easy to discern how these principles interact with one another. This article sets out five key principles which determine the ambit of solicitors’ duties and explains the interplay between these principles.
1. The starting point: the solicitor’s retainer
First, a solicitor is under no duty to investigate or advise on matters falling outside his express instructions. As the court put it in Pickersgill v Riley [2004] UKPC 14; [2004] PNLR 31, [8] (citing with approval from Jackson and Powell on Professional Negligence, 5th ed): “In the ordinary way a solicitor is not obliged to travel outside his instructions and make investigations which are not expressly or impliedly requested by the client.”
The decision of the court in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 provides a helpful illustration of this principle. In that case, a solicitor had been instructed to advise the claimant on whether he should exercise an option (to purchase a farm) and the tax implications of doing so. The claimant argued that the solicitor had breached his duties by failing to satisfy himself that the option had been registered and failing to advise the claimant that if the option was not registered, it would be void against a purchaser of the legal estate in the property (p401).
Oliver J framed the issue in these terms: “what is the scope of a solicitor’s duty when he is consulted about a particular aspect of a problem – is he entitled to confine himself to the particular matters for which he is retained to advise or must he consider all the circumstances affecting the underlying data including hypothetical circumstances or risks to which his attention is not directed and upon which his advice is not specifically sought” (p402).
Oliver J held that the solicitor was indeed entitled to confine himself to the particular matter for which he was retained and was under no duty to consider whether the option had been registered (p403).
This principle is also illustrated by the decision of the Court of Appeal in Minkin v Landsberg (trading as Barnet Family Law) [2015] EWCA Civ 1152.In that case, the claimant and her husband had agreed a settlement of their financial dispute following their divorce. Prior to instructing the defendant, the claimant had received legal advice on terms of the settlement. She then instructed the defendant to translate the agreement into a consent order for approval by the court. The defendant was not instructed to advise on the merits of the proposed settlement. In any event, the defendant was not provided with documents relating to the claimant’s and her husband’s financial resources.
The defendant duly drafted a consent order reflecting the agreement reached between the claimant and her husband, which was subsequently approved by the court.
Sometime later, the claimant brought proceedings against the defendant, alleging that the defendant ought to have told her that the agreement may be unfair and that there had been no investigation of her husband’s means and assets ([42]).
The court held that the defendant’s retainer had been limited to putting into a proper form the agreement reached by the claimant and her husband and they had carried out the work required ([41] and [77]).
Jackson LJ said: “The extent of a solicitor’s duty to his/her client is determined by his/her retainer. The starting point in every case is to ascertain what the client engaged the solicitor to do or to advise upon” ([32]).
Contrast the facts of Minkin with the more recent decision of the High Court in Lewis v Cunningtons Solicitors [2023] EWHC 822 (KB). In Lewis, the defendant sought to argue that it had operated under a limited retainer – an argument which was rejected by the court.
In Lewis, the defendant was instructed to assist the claimant with her divorce. Significantly, the retainer letter suggested that the retainer was general as it simply stated that the defendant was retained “in relation to [the claimant’s] divorce and financial matters” ([216]). It was not, therefore, framed as a limited retainer (as had been the case in Minkin).
The claimant ultimately reached a financial settlement with her husband which was significantly below the level she would likely have been awarded by a court.
The court found that the defendant ought to have but had failed to advise the claimant that offers made by her husband were unfair because her husband had a very valuable pension and that she was likely to receive much more if she pursued the matter to court. Although the defendant had not received the husband’s full financial disclosure, they had received information about his pension ([220], [224]).
2. Reasonably incidental matters
As Jackson LJ noted in Minkin, a solicitor’s express instructions form the “starting point” for ascertaining the ambit of their duties. However, the enquiry does not end there.
It has often been said that a solicitor’s duties extend to matters “reasonably incidental” to the task they have been instructed to carry out.
This principle does not involve imposing on solicitors any duty to investigate matters beyond those which they have been instructed to address. Instead, the principle is simply a facet of the solicitor’s duty to (a) bring to their client’s attention information they obtain (or ought, with the exercise of reasonable skill and care, to obtain) during the course of the retainer which may be relevant to the client’s interests (see e.g., Gabriel v Little [2013] EWCA Civ 1513, [73]) or (b) to bring to the client’s attention risks which come to the solicitor’s attention (or which should have come to their attention) whilst carrying out the tasks they have been instructed to carry out (Lyons v Fox Williams LLP [2018] EWCA Civ 2347, [41] – [42]).
This principle is helpfully illustrated by the decision of the court in Credit Lyonnais SA v Russell Jones & Walker (A Firm) [2002] EWHC 1310 (Ch); [2003] PNLR 2. The claimant company was the lessee of certain premises and wanted to exercise a break option under the terms of its lease. The lease contained a number of conditions which had to be complied with if the break option was to be exercised effectively, including the service of 6 months’ written notice and payment of a sum of £11,500. The defendant was instructed to (a) contact the landlord to see whether the landlord would be prepared to extend the notice period (para [14]) and (b) serve a notice of termination in due time (para [20]).
The defendant failed to inform the claimant that the requirement to pay the termination sum in due time was also a condition precedent to the effective exercise of the break condition and the claimant failed to pay that sum in time.
The court held that the defendant had breached its duties to the claimant. The court stressed that whilst a solicitor is under no obligation to expend time and effort on issues outside the retainer, “if, in the course of doing that for which he is retained, he becomes aware of a risk or potential risk to the client, it is his duty to inform the client” (para [28]).
The court found that the first of the defendant’s instructions (contacting the landlord) did not require a competent solicitor to investigate the terms of the lease and, as such, he could not be expected to learn of the existence of the condition precedent (paras [29] – [30]).
However, carrying out the second instruction did require the defendant to read the lease; further, on reading the lease, the defendant ought to have become aware of the requirement to pay the termination sum and informed the claimant of the same (para [33]).
In summary, a matter will be “reasonably incidental” if it pertains to a risk, issue or information which comes to the solicitor’s attention (or ought to come to their attention) whilst they are carrying out their express instructions. Indeed, in Lewis, the court noted that: “the type of thing that tends to be encompassed within the reasonably incidental concept tends to be a duty to warn or a duty to report something as in Credit Lyonnais where, if somebody becomes aware of an issue in the course of carrying out the retainer, it is his duty to inform the client of that risk” ([33]).
In Lewis, the court held that the defendant’s “reasonably incidental duties” required them to set out for the claimant a comparison between what she would receive through the proposed settlement with her husband and what she was likely to receive if she went to court ([224]). In particular, the claimant should have been told that the court would likely make a pension sharing order and the starting point for the division of that asset would be 50% ([228]).
As the defendant had received information about the claimant’s husband’s pension in the course of carrying out the retainer, it is easy to see why such advice fell within the ambit of the defendant’s duties.
3. Level of detail required
As set out above, in the course of carrying out their retainer, a solicitor may come across numerous matters which pose a risk to their client. The (a) breadth of risks which the solicitor is required to raise with their client and (b) the level of detail of the advice the solicitor must provide will turn on the individual needs of the client.
(a)
In Minkin, Jackson LJ made clear that in determining whether certain advice is reasonably incidental to the retainer, the character and experience of the client ought to be taken into account. His Lordship said: “An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client” ([38]).
Donaldson LJ’s judgment in Carradine Properties Ltd v DJ Freeman & Co [1955-95] P.N.L.R. 219 was to a similar effect: “If a solicitor is instructed to prepare all the documentation needed for the sale or purchase of a house, it is no part of his duty to pursue a claim by the client for unfair dismissal. But if he finds unusual covenants or planning restrictions, it may indeed be his duty to warn of the risks and dangers of buying the house at all, notwithstanding that the client has made up his mind and is not seeking advice about that. I say only that this may be his duty, because the precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice. An inexperienced client will need and will be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client” (emphasis added).
In this passage, Donaldson LJ referred to risks/issues which become apparent to the solicitor in the course of carrying out his express instructions. His Lordship explained that the extent to which such risks should be set out for the client (as part of the solicitor’s “reasonably incidental duties”) depends on the experience of the client. A broader range of risks may need to be flagged to an inexperienced client than to an experienced client.
(b)
In Kandola v Mirza Solicitors LLP [2015] EWHC 460 (Ch), the court stated: “An inexperienced client, or one dealing in matters he is not familiar with, may require more explanation before he can sufficiently understand the risk he is about to take. An experienced client may need less explanation, or even none at all” ([47]).
4. No duty to advise on non-legal matters
In general, a solicitor has no duty to advise on non-legal matters (see e.g., Pickersgill v Riley [2004] UKPC 14, [17];Clark Boyce v Mouat [1994] 1 AC 428, p437). The rationale for this principle is clear: commercial and other non-legal issues fall outside the scope of a solicitor’s expertise.
In applying this principle, it is necessary to distinguish between legal issues and those issues which are truly non-legal.
It is clear that questions which fall within the scope of other professional disciplines will be non-legal matters falling outside the scope of a solicitor’s duty. For example, a solicitor will not be required to advise on matters of valuation (see County Personnel (Employment Agency) v Alan R Pulver & Co [1987 1 WLR 916, p923).
Likewise, advice as to the likely changes in interest rates and property prices (i.e., investment advice) will fall outside the scope of a solicitor’s duty (see Investors Compensation Scheme Ltd v West Bromwich Building Society (No.2) [1999] Lloyd’s Rep. P.N. 496, p516).
Further, in general, solicitors are not required to give advice on matters of value judgment which are not inherently legal issues. In particular, it has been held that if a solicitor is engaged to carry out a particular transaction or step, they are not required to give unsought advice on, legal considerations aside, the wisdom of the transaction (Lennon v Englefield [2021] EWHC 1473 (QB), [93]).
In Lennon, the defendant solicitors acted for the claimant in connection with the sale of her property. Throughout the transaction, a third party – Mr Englefield – acted as an intermediary for the claimant. Unbeknownst to both the claimant and the defendant, Mr Englefield was in fact a former solicitor who had been struck off and imprisoned for theft of a sum of £900,000 from his firm’s client account. The claimant instructed the defendant to pay the proceeds of sale into an account in the name of a company owned by Mr Englefield. The defendant did so. Unfortunately, Mr Englefield failed to remit a substantial proportion of the monies to the claimant.
The claimant sued the defendant, alleging, inter alia, that the defendant ought to have advised her against authorising the transfer of the sale proceeds to Mr Englefield.
Dismissing the claim, the court held that: “If the vendor’s solicitor is given clear instructions where to send the proceeds of sale … it is not part of her retainer to proffer advice to the client about the commercial wisdom of the step they have instructed her to take” ([93]).
5. The exception: inexperienced or vulnerable clients
As a limited exception to the principle set out above, a solicitor may be under a duty to give advice on the wisdom of a proposed transaction, where, (a) the client is inexperienced or vulnerable and (b) in the course of carrying out their retainer, facts come to the solicitors’ attention to show very obviously that the proposed transaction is a very unwise one for the client.
In Neushul v Mellish & Harkavy [1967] 1 WLUK 347 it was said that: “a solicitor carrying out a transaction for a client was not justified in expressing no opinion when plainly the client was rushing into an unwise, not to say disastrous, adventure“.
In that case, the defendant solicitor acted for a widow who wished to lend a substantial sum of money to a third party. The defendant had previously acted for the third party and knew of material facts showing that the third party was untrustworthy. However, he did not inform the claimant of these matters, nor did he express any view on the wisdom of the proposed loan to the third party. The loan was never repaid. The claimant sued the defendant and the court held that he had breached his duties.
More recently, in Niprose Investments Ltd v Vincents Solicitors Ltd [2024] EWHC 801 (Ch) and [2025] EWHC 14 (Ch), the High Court refused to strike out an allegation that solicitors owed their clients a duty to advise them against entering into a property transaction. The defendant solicitors had acted for the claimants in connection with their respective purchases of units in an off-plan property development scheme. The scheme involved the payment of large up-front sums (described as “deposits”) of 25% or 50% on exchange of contracts with a further instalment to be paid, in some cases, prior to completion of the development and a balancing payment on completion. In return, the claimants were to acquire a long leasehold interest in individual units on completion. The claimants were also promised guaranteed rental income, derived from an underlease for a 5-year period, which was to be granted on completion.
The development failed and the claimants lost their up-front payments. They brought proceedings against the defendant, alleging, inter alia, that the defendant ought to have advised them not to enter into the transactions.
The defendant accepted that where it is plain that a client, particularly an inexperienced one, is rushing into an “unwise, not to say disastrous, venture” a solicitor may be under a duty to advise their client on whether (legal considerations aside) the transaction is a prudent one ([2024] EWHC 801 (Ch),[34]).
However, the defendant argued that the claimants had not pleaded any facts which could justify the application of this principle. The defendant therefore sought to strike out the claim and applied for reverse summary judgment in the alternative.
The Court accepted that the claimants had failed to plead “any particular characteristics, or vulnerabilities, of individual claimants” ([2024] EWHC 801 (Ch), [69]); nor had the claimants pleaded any features of the scheme that made the scheme particularly unusual such as to give rise to the exceptional duty to advise the claimants against entering into the schemes ([2024] EWHC 801 (Ch), [73]).
However, the court considered nonetheless that “there may be some traction” in the claimants’ allegation of breach of duty and held that the claimants ought to be afforded an opportunity to amend their statements of case ([2024] EWHC 801 (Ch), [76]).