A prospective client of national firm Irwin Mitchell whose leg was amputated after a holiday injury has taken the firm to the Court of Appeal after her claim for breach of duty was dismissed.

Carol Miller’s leg was amputated above the knee following complications from breaking her leg when walking down stairs in Turkey. She claimed the accident was a result of the hotel’s breach of local standards and that Lowcostholidays Spain, the online travel agency Miller’s husband used to book the holiday, was in breach of contract.

Miller called Irwin Mitchell in 2014, before the amputation, and was told about the three-year limitation period. The firm sent her a conditional fee agreement on January 2016 and a letter of claim to Lowcost, the following month. Lowcost’s insurer was not notified of the accident at the time. As a result, it declined to cover Lowcost, which had gone into administration.

Miller’s claim was subsequently dropped. The firm said it was unable to proceed as there was 'no viable source of compensation' for her claim. She took the firm to court for breach of duty, which the firm denied, stating she had lost the opportunity to recover compensation. 

The High Court found in the firm’s favour, concluding ‘no contract of retainer’ had been confirmed and ‘no like duty was assumed’ until 25 January 2016 when the firm informed Miller it was ready to proceed.

Miller argued the firm owed her a common law duty and implied contractual duty after she called the helpline. Robert Weir KC, for Miller, told the Court of Appeal: ‘Mrs Miller was certainly entitled to rely on such advice as she was given. The defendant will have understood the legal advice given would be relied on by the customer.’

‘That advice on limitation was an incomplete and misleading representation that in fact she was safe to [pause] her claim for three years against the defendant.’

He added that ‘the obligation to advise the client to contact’ the tour operator ‘could be described as a general point’ of advice. The court heard that Miller claims Irwin Mitchell breached its duties by failing to advise her to notify Lowcost or notifying Lowcost itself.

Weir added: ‘You cannot control what the tour operator does and does not do but you can alert them, and it is recognised that it is beneficial to do so.’

For Irwin Mitchell, Andrew Warnock KC said no duty of care was owed to Miller when she called the helpline. Quoting ‘the important bit’ in the High Court judgment, Warnock said the ‘limited high-level and generical legal advice about personal injury claims…did not purport and cannot have been understood to be complete or comprehensive legal advice about her claim and was a preliminary to further consideration’.

‘And that finding was rooted in Miss Miller’s own evidence,’ Warnock added.

He said: ‘The correspondence demonstrates, and what the judge accepted on the evidence, is that everybody understood the advice given ...was something that needed to be looked at in more detail.’

He told the court that limitation advice ‘is purely advice on the limitation’. He added: ‘When Mrs Miller first phoned up Irwin Mitchell it was a general diagnosis case for a nasty break…[which] would have been well within the [insurance] excess.’

Judgment was reserved.

 

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