UK: Between a Rock and a Hard Place: A Solicitor’s Duty to Advise Where The Law is Uncertain

Last Updated: 18 August 2004

Article by Richard Harrison And Sara Cody.

"Clients, I know, want two inconsistent things. They want confident advice on which they can act and they want cautionary advice about the risk of doing so. It is a solicitor’s unhappy lot to have to try to satisfy both requirements simultaneously." (Sedley LJ). This quote brings into sharp focus the inconsistent demands which are often placed upon solicitors, particularly evident when a solicitor is asked to advise on areas of the law which are uncertain. We examine recent case law suggesting that in certain situations, a solicitor will have to be particularly careful that both his reasoning and the risks of a particular course of action have been clearly communicated.

It is well established that a solicitor is required to exercise reasonable care and skill in advising clients, although the standard is described as that of a reasonably competent solicitor, not a particularly meticulous or conscientious one (Midland Bank v Hett, Stubbs and Kemp (1979)).

Although solicitors are not expected to possess an encyclopaedic knowledge of the law, they are expected to research any points which, in the circumstances, were relevant to the transaction in question or would have appeared to be relevant to a reasonably prudent solicitor. On the whole, ignorance will amount to negligence. On the other hand, incorrect advice may not necessarily be culpable, provided it is consistent with the standard of a reasonably competent solicitor.

Queen Elizabeth’s School Blackburn Limited v Banks Wilson Solicitors (a firm) (2001) adds to the general duty imposed upon solicitors by holding that, where there is potential for a dispute or argument over advice given by a solicitor, the solicitor has a duty to notify his client.

In this case, the solicitor in question was negligent in failing to advise his client that there was significant scope for dispute about the meaning of a covenant restricting the height of a new building, to be built by the school on land it had acquired from a neighbour. The key to this decision was the solicitor’s knowledge of the surrounding circumstances. Although he was only asked to advise on the meaning of a restrictive covenant, he was aware that both the holder of that covenant and planning authorities were unhappy with building plans made by the school.

The Court of Appeal found that the solicitor advising should have informed the school that there was significant scope for dispute as to the meaning of the covenant, rather than merely stating that litigation was never certain, as he had in fact done. This was notwithstanding the fact the solicitor was only asked to advise on the likely interpretation of the clause, not the risks of litigation. Counsel for the school relied on Dixey & Sons Limited v Parsons (1964) to argue that, even if the solicitor’s view about the covenant was not negligent, he had a duty to warn the client of the risk that his view was wrong. In Dixey there was deemed to be "an obvious danger that a different view might be taken". This case appears to take this further, imposing upon solicitors a duty to warn clients of the potential risks attendant in courses of action they propose to take, whenever there is potential for a contrary interpretation or dispute.

The decision has been criticised as the solicitor was held liable in negligence for his advice on interpretation, regardless of the fact that his view was a reasonable one. Indeed, following Saif Ali v Sydney Mitchell (1980), solicitors are not under a duty to be right, just to exercise reasonable skill and care. It appears that exercising skill and care now involves advising on potential litigation, even on ostensibly noncontentious matters. There is a difference, for example, between asking what a restrictive covenant or a clause in a contract means, and asking whether there is a risk of litigation and, if this risk eventuates, whether your client will win. These are, we consider, completely separate issues.

So where does this leave the standard of care imposed upon solicitors, where there are issues of interpretation or the law is uncertain. Certain principles can be distilled from relevant case law:-

  • Where there is scope for disagreement over the meaning of a clause or covenant and a solicitor is aware of a potential dispute, the solicitor is under a duty to give more cautious advice than simply to advise on a clause's effect alone. Even if a solicitor is correct in his interpretation, if the circumstances are such that there is a plausible contrary interpretation then the client is entitled to be advised of this, notwithstanding the fact the client has not asked for advice specifically on litigation risks (Queen Elizabeth).
  • Adherence by a solicitor to a practice which is generally accepted within the profession will not render him immune from the risk of a negligence claim. The solicitor must be able to prove that the application of the practice or process to the case in question was justifiable in all the circumstances. Solicitors can protect themselves by showing that they directed their mind to the question of whether this accepted practice was appropriate, given the circumstances of their client's case (Patel v Daybells (2001)).
  • Robust advice can be given (depending on the facts of the case) but due care should be taken and there should be reference at least to evidence which justifies the conclusions in the advice given (Kay LJ, Griffin v Kingsmill (2001)).
  • In short, solicitors need to ask themselves two questions when giving advice, even in non-contentious situations:-
  • Is there an obvious danger of a different view being taken; and
  • Is there a significant risk of this issue reaching court.
  • If the answer is yes to either of these questions, the client needs to be fully appraised of the risks of taking the course of action they propose. This is not to be confused with advising on the merits of that course of action itself, however, which is often a difficult distinction to draw. We explore whether solicitors have a duty to advise on the commercial wisdom of a transaction in our article "Pickersgill v Riley".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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