Lee Witcomb v J Keith Park Solicitors
[2023] EWCA Civ 326
Carol Miller v Irwin Mitchell LLP
1 February 2024
[2024] EWCA Civ 53
Court of Appeal
A woman sued her solicitors for not telling her to report her accident to the tour operator sooner, meaning her claim against the tour operator failed due to late notification. The court said the solicitors only had a limited duty to give basic legal advice, not to manage every detail of her case before they formally represented her. Even if they *had* told her to report the accident, the chances of her getting money were very slim due to how the tour operator's insurance policy worked.
Key Facts
- •Mrs. Miller suffered a serious leg injury requiring amputation after a fall during a holiday in Turkey.
- •She instructed Irwin Mitchell LLP to pursue a claim against the travel operator, Lowcostholidays.
- •Lowcostholidays' insurer, HCC, denied coverage due to late notification of the accident.
- •Mrs. Miller sued Irwin Mitchell for professional negligence, alleging they should have advised her to notify Lowcostholidays sooner.
- •The High Court dismissed Mrs. Miller's claim.
- •Mrs. Miller appealed, arguing Irwin Mitchell owed her a duty of care from the initial helpline contact.
Legal Principles
Assumption of responsibility in tort: A solicitor can owe a duty of care to a prospective client even without a formal retainer, if they voluntarily assume responsibility for providing advice.
Spire Property Development LLP v Withers LLP [2022] EWCA Civ 970
Scope of duty of care: The ambit of a duty of care owed to a prospective client is determined objectively in context and without hindsight; analogous cases are not necessarily instructive.
Spire Property Development LLP v Withers LLP [2022] EWCA Civ 970
Duty to advise on 'reasonably incidental' matters: A solicitor may be obliged to advise on matters reasonably incidental to those for which they have assumed responsibility.
Spire Property Development LLP v Withers LLP [2022] EWCA Civ 970
Loss of a chance: In a loss of a chance case, the claimant bears the burden of proof to demonstrate a real and substantial chance of a better outcome.
Phillips v Whatley (Privy Council case referenced)
Adverse inferences: To succeed on appeal by arguing the failure to draw adverse inferences, the appellant must show no reasonable tribunal could have omitted to draw such an inference.
Efobi v Royal Mail Group Ltd [2021] UKSC 33
Outcomes
Appeal dismissed.
The Court of Appeal found that Irwin Mitchell did not owe Mrs. Miller a duty of care to advise her to notify Lowcostholidays of the accident on 19 May 2014. While they assumed a limited duty to provide preliminary legal advice on the helpline, this did not extend to advising on notification to the tour operator. The court also upheld the judge's finding regarding the construction of the excess clause in the insurance policy and the lack of a real chance of recovery.
Similar Cases
Anna Christie v Mary Ward Legal Centre & Anor
[2023] EWHC 1814 (KB)
Vitalijus Dziugys v Ersan and Co Solicitors Ltd
[2024] EWHC 434 (KB)
Norman Hay PLC (in Members’ Voluntary Liquidation) v Marsh Limited
[2024] EWHC 1039 (Comm)
Niprose Investments Limited & Ors v Vincents Solicitors Limited
[2024] EWHC 801 (Ch)