Every summer, many members of 4 New Square review the year’s cases to update Jackson & Powell on Professional Liability. Helen Evans KC and Hugh Evans edit the solicitors’ and barristers’ chapters.
Below, Helen and Hugh set out the core emerging themes they have noticed from the lawyers’ liability case law.
Professional indemnity insurance coverage
Unexpected and serious gaps keep emerging in professional indemnity cover and insurers’ remedies arising from such cover. This year’s problems have included:
- Claimants being left with the benefit of no cover where a firm’s liabilities were novated to an LLP (Leggett v AIG [2025] PNLR 16;[1]
- Claimants finding that insurance payments made to a professional before insolvency in respect of their claim were not actually earmarked for them in the insolvency (Wood v Desai [2025] PNLR 7;[2] and
- Insurers sued directly by a solicitor’s former client being unable to bring a contribution claim (Riedweg v HCC International [2025] PNLR 9).[3]
Some common themes emerge from these cases, including over-technical statutory language causing unexpectedly narrow outcomes[4] and law firms’ reorganisations potentially having unintended coverage consequences.
Suing the wrong defendant
The clear guidance from cases such as Brooks v AH Brooks [2011] 3 All ER 982 has been that claimants need to sue the defendant entity – e.g. a partnership or LLP- that existed when their cause of action accrued. Often, claimants sue the current entity in the belief that “successor practice” arrangements in professional liability cover provides them with a cause of action against the successor practice, when they do not. .
The Scottish case of Andrew Marr International Ltd v Mackinnons [2025] SLT 295[5] provides a new twist on this old dispute. There, the court was willing to recognise a tripartite novation of the retainer to the new defendant entity from the fact the claimant had chosen to sue it.
Of course, whether new entity would actually then have any insurance cover is a matter overlapping with Leggett v AIG.
Weak or hopeless claims
There has been mixed sympathy for litigators who find themselves running hopeless cases. There is much to be said for lawyers not feeling compelled to “dump” clients even when serious cracks emerge, and in Williams-Henry v Associated British Ports [2025] 4 WLR 78 the court declined to find solicitors liable in wasted costs for running a weak claim.
However, there are cases where solicitors’ failure to engage with obvious problems will lead to the conclusion that no reasonable practitioner would have conducted the litigation as they did – such as Robinson v Air Compressors & Tool Ltd [2025] EWHC 1469 (KB).
Sometimes, courts even give short shrift to privilege problems preventing solicitors from fully explain their conduct, with the judge in Robinson describing the issue as a “distraction” or a “mere fig leaf” [34].
Finally, in the striking case of Vanquis Bank v TMS Legal [2025] EWHC 1599 (KB), the claimant lender said that been inundated with claims which were submitted recklessly and indiscriminately and in breach of the defendant solicitor’s duties to its clients. Although it acknowledged that the solicitor’s business model was to make money for itself, it argued that the solicitors also intended (at least in part) to cause damage to Vanquis. Vanquis therefore accused TMS of causing loss by unlawful means- and the court declined to strike this “novel” case out. The case is one of many numerous attempts in recent years to adapt economic tort claims to the professional indemnity area. [6]
Breach of undertaking
Some four year ago, the Supreme Court held that the court’s supervisory jurisdiction to enforce undertakings against officers of the court did not apply to LLPs.[7] The result is that applicants trying to enforce undertakings against such entities have to bring breach of contract claims (or complain to the SRA).
Attempts to take shortcuts by bringing breach of contract claims followed by summary judgment applications have proved risky. In two cases this year claimants tried this approach, and in both they fell flat: Social Money v Attwells LLP [2025] PNLR 12 and Ultimate Bridging Finance Ltd v 4 Fairweather Close [2025] PNLR 13. Impediments included arguments over whether the undertakings were ambiguous, the need for disclosure and defences based on agency.
All mixed up
Although solicitors do not themselves run their clients’ affairs, their work even on litigation matters can lead to them becoming “mixed up” in their clients’ wrongdoing to such an extent that a court will make a Norwich Pharmacal order requiring them to deliver up documents or information about their clients.
Although the application of this relief to solicitors is not new, 2025’s PNLRs contain the latest chapter in the Filatona Trading dispute ([2025] PNLR 5), where solicitors were said to have become unwittingly involved in a suspicious document being used to try and set aside an arbitration award.
Data misuse?
It is not uncommon for lawyers to be hit with data protection objections by their own clients or opponents. These issues are often resolved internally or through the Information Commissioner and rarely reach court.
In Kul v DWF [2025] EWHC 1824 claimants went so far as to sue lawyers acting for defendant insurers over processing their data in respect of road traffic claims. The defendant insurers had used the information to make arguments of “fundamental dishonesty” against the claimants. The court held that whilst the lawyers had processed the claimants’ data without consent, they did so because their clients had concerns about how claims involving the same claimant law firm and medical experts were being pursued, and suspected fraud. The data processing was therefore for a specific and legitimate purpose.
Loss of a chance
The calculation of damages in loss of a chance claims continues to pose challenges, particularly where there are multiple contingencies or the claimants also have to give credit for benefits. This year’s case law makes plain that:
- Over-complicated arguments on quantification involving multiplying numerous contingencies are not finding favour (Barrowfen Properties v Patel [2025] EWCA Civ 39); [8]
- Courts often prefer an impressionistic rather than nit-picking approach to what might hypothetically have happened if a professional defendant had not been negligent (Gough v Cannons [2025] CSOH 25).
What’s expected of clients?
Although a lot of case law on s. 32 of the Limitation Act 19280 (deliberate concealment) has focused on defendants’ poor conduct in recent years[9], there is something of a resurgence of interest in what claimants need to do to investigate potential claims.
However, it is plain that limitation rules attributing to claimants such knowledge as they ought reasonably to have obtained do not start from the premise that claimants are required to distrust everyone they do business with (DLA Piper v Henshaws Farming LLP [2025] PNLR 21). Clients are not required to exist in a state of perpetual suspicion that something has gone wrong.
AI and lawyers
Misuse (or suspected misuse) of AI has only been before the courts so far in the context of wasted costs and the High Court’s Hamid jurisdiction to review the conduct of lawyers- which can lead to contempt of court charges being laid.
The courts are clearly concerned about what supervision and systems are in place to keep control over this rapidly evolving technology (R (Ayinde) v LB Haringey [2025] ACD 87)[10].
It can only be a matter of time before thoughtless or unsupervised use of AI gives rise to negligence liability- and lawyers should be focusing on understanding what their teams are doing and how the technology they are using operates. One issue to watch is the extent to which the courts will be prepared to countenance work traditionally done by professionals being done by AI instead.
© Helen Evans KC and Hugh Evans 4 New Square Chambers, September 2025
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
Helen Evans KC was appointed silk in March 2022 and has recently been shortlisted for both Chambers & Partners’ Silk of the Year for Professional Negligence and the Legal 500’s Silk of the Year for Professional Discipline.
Helen is a co-editor of the solicitors’ and barristers’ chapters in Jackson & Powell on Professional Liability and the chair of the appeal panel of the Chartered Institute of Management Accountants.
Hugh Evans is also the co-editor of the solicitors’ and barristers’ chapters in Jackson and Powell, and is a general editor. He has published over thirty articles in academic journals, and a few books. But mostly he practises in professional liability.
[1] See also Amanda Savage KC and Ed Grigg’s article about this case.
[2] Although not a lawyers’ claim, it illustrates a worrying gap in how professional negligence cover generally where a defendant becomes insolvent.
[3] See Helen Evans KC’s prior article about this case.
[4] The Third Parties (Rights Against Insurers) Act 2010 and the Civil Liability (Contribution) Act 1978.
[5] See Hugh Evans’ brief commentary on this case and its implications.
[6] See also King v Stiefel [2022] 1 All ER (Comm) 990.
[7] See Harcus Sinclair LLP v Your Lawyers Ltd [ 2022] AC 1271.
[8] See also Shail Patel KC and John Williams’ article about this case.
[9] See e.g. Canada Square v Potter [2024] AC 679.
[10] See Helen Evans KC, Ben Smiley and Melody Hadfield’s article about lawyers and AI.
