Introduction
In limited circumstances solicitors have a duty to advise their client that they may have been negligent. Allegations of breach of that duty normally arise in the context of claims which are brought after the normal six-year limitation period, and after three years from the date of knowledge. One may think that such claims would be rare, but in my experience they are not that unusual. There are, though, limited reported cases on the issue, and the recent case of Evans v Hughes Fowler Carruthers [2025] EWHC 481 (Ch) is therefore of some interest.
The existing Law
There are three significant cases on this duty. The first is Gold v Mincoff Science & Gold [2001] 1 Lloyd’s Rep PN 423. Neuberger J considered at [98] that a duty on a solicitor to advise that he had been negligent on an earlier occasion would be rare. In that case there should have been an investigation of the draft mortgages the client was going to enter, and that would have led back to the consideration of earlier mortgages, and the client should have been advised that the solicitor may have been negligent in relation to those earlier mortgages and should seek separate legal advice, see [101]-[102]. The Judge relied on the professional duty to give such advice found in the Law Society’s Guide to the Professional Conduct of Solicitors. While the relevant standards have changed, and there is no longer such an express professional duty, the professional duty only informs the common law duty, and this one is now embedded in the law.
The second is short, and it is only really of importance because it is Court of Appeal. Ezekiel v Lehrer [2002] Lloyd’s Rep PN 260 was a strike out application on s32 of the Limitation Act, where the solicitors succeeded because the claimant had known the relevant facts. The obiter passage by Ward LJ at [24] states: “Assuming that the solicitor has the duty to advise his client that he has been negligent, or advise him to seek alternative advise to establish whether or not he has been negligent, that duty can only arise if the solicitor knew or ought to have known that he was guilty of an earlier breach of duty.” At [49] Jonathan Parker LJ agreed with Neuberger J’s observations that such a duty to advise on earlier negligence would only be in a relatively exception case. Harrison J agreed that the appeal should be dismissed.
The final case is Cutlers Holdings v Shepherd & Wedderburn [2023] EWHC 720 (Ch); [2023] PNLR 21. Following the two previous cases, it was held at [136]-[138] that the duty to inform the client to seek independent legal advice only arose where the solicitor either knows or ought to know that there was a conflict of interest. A mere potential for an allegation of negligence was not enough, and there had to be a significant risk that the earlier advice was negligent. On the facts of that case the solicitors should have advised that there was an own interest conflict because there was a significant risk that they had been negligent and should have advised the Claimant to seek independent legal advice, see [161] and [171]. However, there was no causation of loss.
The facts of Evans
Evans v Hughes Fowler Carruthers was a successful appeal by the claimant on an application to strike out her claim. Ms Evans instructed the defendant (“HFC”) and Mr Howard QC in her ancillary relief proceedings which were before Mostyn J. HFC also acted for Lady Mostyn in her divorce from Mostyn J. In April 2012, when his judgment in Ms Evans’ case was in draft, it was alleged that HFC and Mr Howard QC had emails as a result of acting for Lady Mostyn in which the Judge had made disparaging comments about HFC and Mr Howard QC. This gave rise to an obvious conflict, and HFC and Mr Howard QC could not continue to act. Ms Evans instructed Farrers and new Leading Counsel, and a successful challenge was made to set aside Mostyn J’s judgment. This enabled HFC and Mr Howard QC to act for Ms Evans again, and there was a further trial before a different judge and a judgment in May 2013, with consequential matters continuing until 2018.
There were two categories of negligence alleged. The first was that in 2011 and 2012 Ms Evans was not sufficiently advised of the risks of continuing her action before Mostyn J, and in particular she was not told that there was a special arrangement approved by the President of the Family Division that cases involving HFC would, if the clients desired it, be automatically transferred from Mostyn J to another judge. If the allegation was correct, and Ms Evans could prove that she would have sought a different judge, then the costs of the first trial were wasted and would be recoverable in damages.
However, those allegations were statute barred, as the claim was brought in 2021. The Judge below who had struck out the claim held (and this was not appealed) that Ms Evans had actual knowledge by July 2012 that HFC had not advised her to have her case moved to another Judge, and thus she could not rely on section 14A of the Limitation Act 1980. That section does not, of course, require knowledge that the impugned act or omission was negligent.
The second category of negligence was necessary to circumvent this limitation defence. Ms Evans alleged that she was not told that she might bring a claim against HFC for their earlier negligence in 2011.
On appeal, Adam Johnston followed Bacon J.’s formulation in Cutlers Holdings and concluded that Ms Evans had a real prospect of showing that HFC knew or ought to have known that there was a significant risk that their earlier conduct was negligent. He rejected the point that had impressed the judge below that that the breach was not flagged up by Farrer & Co, Mr Howard QC, or the SRA, as there may have been reasons for that, such as the limitation on the scope of Farrers’ retainer.
I will say something about this test, and also about three further points of note. The first was that the duty arises irrespective of the client’s knowledge. Secondly, the duty to advise was not discharged. While Ms Evans was advised that HCF could play no part in any steps by her to recover the wasted costs of trial, she may not have been told why, which was that there she had a possible claim against HCF. Thirdly, if HFC had a duty to advise about a possible claim in mid 2012, there was logic in advising that the duty persisted for as long as Ms Evans could do something about it.
A significant risk
Why does there have to be actual or ostensible knowledge by the solicitor that there was a significant risk, rather than any risk, that their earlier advice was negligent, and what does this mean? Adam Johnson J concluded at [43] that a fanciful or spurious risk was not enough to trigger the duty, following the conclusion in Cutlers that the risk had to be substantial, without expressly explaining why.
One reason may be that this duty arises only in a relatively exceptional case. Neuberger J held in Gold that it would, otherwise the provisions of the Limitation Act would be evaded in many cases in an artificial way, and that it would give rise to some sort of implied general retainer. Bacon J in Cutler made a parallel with a solicitor having no duty to advise the client of a risk of litigation where the risk was spurious or fanciful.
It makes sense that spurious or fanciful risks should not give rise to any duty. If substantial merely means not spurious or fanciful, which it would appear it does from the reasoning in Cutlers and Evans, then there is no real difficulty with this test. Solicitors’ duties should not be over onerous, and a client needs to know what is really material. Perhaps most significantly, if the risk is spurious or fanciful, or not substantial, the clients will normally have to incur expense in instructing new solicitors.
I would add one point. For the same reasons, the duty should only be imposed if the risk of causation being established was substantial, as well as the negligence. Suppose a solicitor gives negligent advice that the client’s claim has limited prospects of success because he fails to take into account a point of law; the client then comes back six months later for more advice, perhaps because there are new potentially relevant facts, and the solicitor gives the correct advice, including on the point of law. Unless the delay was over the expiry of a limitation period, no loss would normally have been caused by it. The solicitor should have no duty to advise the client on his earlier negligence. Even if he did, it would be causally irrelevant.
The client’s awareness of the facts
In two cases, Cutlers at [134] and [170] and Evans at [47], it has been held that the duty to advise arises irrespective of whether the client is aware of facts which might establish prior negligence. No reasoning was given for this conclusion, but there are good reasons for it.
First, knowledge of the relevant facts, including that the solicitors failed earlier to advise on a point, while giving rise to knowledge for the purposes of section 14A of the Limitation Act, does not necessarily mean that the client knew or should have known that the solicitors were negligent. They may thus not be prompted to act.
Secondly, in many if not most cases the solicitors should also advise that they could not continue to act as there was a conflict of interest. In Evans this did not arise, as the claimant had instructed alternative lawyers while there was a conflict, but subsequently the defendant solicitors were able to act for the client again. There was a special term of the new retainer that Ms Evans would not instruct the solicitors to act in relation to the recovery of the wasted costs of trial, without an apparent explanation of the reason for that.
Finally, the duty to advise goes beyond advice that the solicitors may have been negligent, but extends to advising the clients to seek independent legal advice.
The width of the duty to advise
The duty extends beyond advising that the solicitors may be negligent, and includes a duty to inform the client that they should take independent legal advice. This did not squarely arise in Evans because the claimant was advised to look elsewhere in relation to recovering the wasted costs of trial, the allegation being that she was not advised why. But the point was clearly part of the reasoning in Cutlers, see [161] and [171], and it was also stated in Gold at [102] and Ezekiel at [24].
The reasons for this are not clear from the authorities, but they are relatively obvious. The impugned solicitor cannot advise the client on his own negligence. The client needs advice, and that can only come from other lawyers. One may add that limitation issues will arise at some point in the future, but if the client is not encouraged to seek advice sooner rather than later then it may never be sought in time or at all.
Continuing duty
In Evans it was suggested at [57] that the duty continued until it was too late to do anything about it. This would only be relevant in cases where proceedings are subsequently issued more than six years after the advice should first have been given. Such a duty looks unlikely given the many authorities on it, which we have summarised in Jackson and Powell on Professional Liability, 9th edn, para 11-012.
