Court of Appeal Clarifies Duty of Care and Insurance Policy Interpretation in Miller v Irwin Mitchell LLP [2024] Case

Citation: [2024] EWCA Civ 53
Judgment on


The Court of Appeal case Carol Miller v Irwin Mitchell LLP [2024] EWCA Civ 53 explores the significant legal principles surrounding the establishment of duty of care in the context of professional negligence, along with the complexities involved in insurance policy interpretation. This case delivers clarity on the nature of legal advice at preliminary stages and the consequential responsibilities of legal practitioners. It also touched upon the ‘loss of chance’ doctrine in the context of a professional negligence claim.

Key Facts

Carol Miller sustained serious injury in Turkey on a holiday booked through Lowcost, and subsequently sought to claim against the holiday operator, Lowcost, for personal injury damages. She engaged the legal services of Irwin Mitchell, and the primary contentions were whether Irwin Mitchell had a duty to advise Miller to report the accident to Lowcost at an earlier date, or to do so on her behalf, and consequently whether the delay prevented a successful insurance claim against Lowcost’s policy held with HCC.

The determination hinged on whether a retainer existed, implied or otherwise, whether a duty of care existed at common law independent of a retainer, and the appropriate interpretation of the insurance policy excess clause potentially impeding the liability of HCC to indemnify Lowcost.

The court relied on several legal principles in reaching its decision:

  1. Assumption of Responsibility and Duty of Care: The Court recognised that a duty of care may arise outside of a retainer if a solicitor assumed responsibility by providing advice which the recipient was intended to rely upon. However, this duty was assessed to be limited to the accuracy of the advice actually provided and did not extend to matters beyond the scope of advice given during a preliminary contact through a legal helpline.

  2. Implied Retainer: The Court considered whether an implied retainer existed based on the conduct of both parties. It held that Mrs. Miller was only considered a potential client of Irwin Mitchell and that an implied retainer had not arisen prior to January 2016.

  3. Construction and Interpretation of Insurance Contract: The Court assessed the insurance policy’s excess clause. The ‘pay to be paid’ clause was interpreted, with the judge finding that the insurer’s indemnity obligation would not be triggered until the insured had paid and exhausted the excess amount stated in the policy.

  4. ‘Loss of Chance’ Doctrine: The Court evaluated whether Mrs. Miller lost the ‘chance’ of a possible recovery against HCC. It confirmed that establishing a ‘loss of chance’ does not revolve around the balance of probabilities but rather focuses on the real and substantial, rather than a speculative, chance of recovery.

  5. Conduct of Insurers: The Court entertained the idea that had the loss of a chance been properly considered, the outcome might have depended on whether the insurer would have acted in good faith or taken every available point to refuse indemnification.


The appeal was dismissed on the basis that:

  • Irwin Mitchell did not owe Mrs. Miller a duty to give specific advice about notifying Lowcost of her accident outside the terms of their retainer.
  • Irwin Mitchell’s initial advice via their Legal Helpline was deemed general and did not create a broader duty to advise on proactive steps like notifying the insurer.
  • The annual aggregate excess clause, as interpreted by the Court, formed an effective bar to Lowcost’s policy paying out on Mrs. Miller’s injury claim.
  • The loss of a ‘real chance’ of recovery from Lowcost’s insurers was speculated but not decided upon as it was deemed unnecessary due to the outcome on the duty of care and policy interpretation issues.


In Miller v Irwin Mitchell LLP, the Court has delineated boundaries on the scope of duty a solicitor owes when providing preliminary legal advice without a retainer. The judgment brings to light the limitations of duties assumed in informal legal advice settings and the significance of precise policy terms in insurance recoveries. Moreover, the case exemplified the Court’s reluctance to find a solicitor liable for failures that extend beyond the expressly communicated scope of their advice, and it sheds light on the complexities in proving the loss of a substantial chance when it comes to professional negligence and insurance claims.

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