Mickaela Fox looks at the implications of a solicitor's duty of care towards the children of a deceased client


In the recent case of Reader & Others v Molesworths Bright Clegg [2007] EWCA Civ 169, the Court of Appeal - Lord Justice Longmore, Lady Justice Smith and Lord Justice Moses - was invited by the appellants to ignore the conceptual basis of the law of tort and find that the respondent solicitors owed a duty of care to the appellants, who it was agreed were not, and never had been, the respondent's clients.



The difficulties facing the appellants were twofold. The case did not fit within Lord Goff's 'acceptable formulation' enunciated in White v Jones [1995] 2 AC 207, where it was held that a solicitor did owe a duty of care to the beneficiaries of a will, notwithstanding the fact that the solicitor's client was the testator. The second and related issue was that the respondent did not cause the appellants' loss.



The respondent was instructed by Mr Reader, the appellants' late father, in a claim for personal injury damages, including psychological injury following a road traffic accident in 1989. Proceedings were issued in July 1991 and liability was admitted. On 24 December 1994, Mr Reader committed suicide. Upon hearing of the death, the respondent discontinued the claim.



The appellants contended that the compromise of their late father's claim precluded their claims for dependency under the Fatal Accidents Act 1976 and issued proceedings against the respondent for professional negligence.



The respondent conceded that it had been negligent to discontinue Mr Reader's claim before it had considered with Mr Reader's personal representative a claim on behalf of Mr Reader's estate. But it contested that it owed a duty to the appellants and that the act of discontinuing Mr Reader's claim had caused them any loss.



The action against the respondent proceeded by way of preliminary issue. So confident were the appellants of their claim that they did not seek to pursue the third-party driver for dependency damages pursuant to the 1976 Act.



The court, at first instance and on appeal, was asked to find, among other thing, that the respondent, on the death of Mr Reader, owed the appellants a positive duty to pursue their claims for dependency damages and that the compromise of Mr Reader's claim had the effect of concluding the appellants' claims under the 1976 Act.



On the duty point, the judge at first instance and the Court of Appeal rejected the appellants' submission that the respondent owed them a duty to pursue a claim for dependency damages and that that duty began on the date of their father's death (that is, before the negligent act). Lady Justice Smith gave the lead appeal court judgment. She began by remarking that because of the court's findings on causation, the duty point was of academic interest only and then went onto hold that there was no duty owed to the appellants in the absence of a retainer.



Notwithstanding her findings on the duty point, Lady Justice Smith went on to add that a solicitor's responsibility for providing a good service, which did not always correlate with the duty of care, would - in the case of a solicitor consulted by a person who had responsibility for bringing a dependency claim on behalf of the dependents - be to advise in such a way to ensure that the claim is brought expeditiously.



As to causation, the appellants argued that their claim under the 1976 Act was either a continuum of their father's personal injury - it was a single cause of action - or that the dependency claim was parasitic upon the personal injury claim. They argued that the effect of the respondent compromising Mr Reader's claim prevented the appellants from recovering damages for dependency from the third-party driver.



The case turned upon the interpretation of section 1 of the 1976 Act and the timing of the compromise. Section 1 permits a dependency claim 'if at the date of the death the deceased could have maintained an action to recover damages'. The Court of Appeal held that the wording of the section was clear: the dependency claim comes into being at the time of death and is a separate cause of action. At the date of Mr Reader's death, he still had a right to bring a claim against the third-party driver. It was some days later when his claim was compromised. In essence, the claim for dependency came into being on 24 December 1994 and that claim, the Court of Appeal held, was a separate cause of action and was not affected by the compromise.



Put simply, the respondent's negligent act of discontinuing Mr Reader's claim had not caused the appellants' loss. The loss was caused at a much later date when limitation in respect of the dependency claims ran out.



The judgment does not do justice to the legal submissions advanced on behalf of both parties and should not be read as an authority for the proposition that a solicitor does not owe a duty of care in the absence of a formal retainer. Indeed, Lady Justice Smith was careful to add that her finding was based on the circumstances of the case.



It was never suggested that the respondent had entered into a retainer with the appellants to pursue the dependency claim. The appellants argued that the respondent owed them a positive duty to act with all reasonable professional skill and care in relation to their rights and potential rights arising from their father's claim against the third party. In support, they relied upon White v Jones. In fact, their situation was very different to the disappointed beneficiary in White v Jones. In that case, the solicitor's duty of care to the beneficiary was co-extensive in time and scope to the duty owed to the testator. Here the appellants were arguing for a duty of care that arose at the date of their father's death.



In addition, the appellants could have sued the third-party driver for dependency damages - limitation was still extant - and this case did not, therefore, fit within the exception created by White v Jones. There was no unjust or unfair consequence of the court not finding that the solicitor owed a duty of care. Here the appellants had a valid claim against another party who had admitted liability.



Mickaela Fox is partner in the Liverpool office of Weightmans