In the loop

Professional advisers have a duty to advise clients as to the best course of action in their particular case, but whether this duty extends to repeating the advice depends on the client's circumstances, the Court of Appeal has ruled.

Giving judgment in Littlewood v Radford and Boston [2009] EWCA Civ 1024, Lord Justice Rimer said: 'If a professional person gives clear advice on a particular point to his client as to the need to take a particular step by a particular time, there cannot be any general principle that he is under a duty to keep repeating that advice.'

One of the issues in the case was whether Mr Radford, a surveyor, was under a duty to remind Mrs Littlewood in October of advice given in June/July that, absent an agreement as to the premium, she needed to make an application to the LVT before 8 November to keep alive the claim to extend her lease under the Leasehold Reform Housing and Urban Development Act 1993.

Client expectation

Nevertheless, Rimer LJ went on to confirm the finding of the county court judge that Mr Radford's retainer required him, as the deadline loomed, to repeat the advice.

'Mrs Littlewood was not a lawyer,' he said. 'While Mr Radford may well have told her in June or July of the importance of the deadline, she was a client inexperienced in the relevant field, and she was just the sort of client who could be expected to rely on a professional adviser such as Mr Radford to remind her, when the time arose, of the need to take appropriate procedural steps in order to protect her position.'

In coming to this view, Rimer LJ agreed that the judge below had been right to regard Staughton J's observations in R.P. Howard Ltd & Richard Alan Witchell v Woodman Mathews and Co (a firm) [1983] BCLC 118 as supporting his conclusion.

In that case, the defendant solicitors were instructed by the claimants in relation to a business tenancy which was expiring. When first instructed in October 1975, the solicitors told their clients of the need to apply to the county court to obtain a new tenancy under the provisions of the Landlord and Tenant Act 1954. Negotiations then took place between the solicitors and the claimants' landlord. Staughton J found that the solicitors were negligent in not reminding their clients of the need to make an application to the court. He said:

'[The claimant] was, as he [the solicitor] must have known, an engineer. He was not a lawyer or a man of any formal business training. He did not, I imagine, have a fully trained legal secretary or a legal department. In short, he was precisely the sort of man who could be expected to rely on his solicitor to remind him when legal steps ought to be taken. It was [the solicitor's] duty to do so.'

This case may be compared with Yager v Fishman & Co and Teff & Teff (1944) 77 Ll L Rep 268, where the Court of Appeal held that, in the absence of specific instructions from a client, it was no part of a solicitor's normal duty to remind an experienced businessman that a date for exercising an option in a commercial lease was approaching.

Experience and dependence

These decisions can be reconciled by reference to the nature of the client, his/her experience in the relevant field and the degree upon which he/she is dependent upon the professional concerned.

Even when the retainer terminates, there may be continuing duties. In the Australian case of MacPherson & Kelley v Kevin J Prunty & Associates [1983] VR 573, a firm of solicitors' instructions were withdrawn shortly before the expiration of the limitation period. The Supreme Court of Victoria did not suggest that the trial judge had been wrong to hold that, after its instructions had been withdrawn, the firm still owed its former client a duty to take such reasonable care as the circumstances required. In failing to warn her or her new solicitors that proceedings had not been issued, and in making a positive decision to refrain from giving any warning of the very situation it had created, it was in breach of its common law duty of care and liable in damages.

Similarly, in Ensor v Archer [2005] PNLR 5, Keith J rejected the argument that a solicitor's duty to clients ceased as soon as instructions were withdrawn.

It follows that professionals should be alert to protect themselves by ensuring that:

• advice as to possible hazards and, particularly, deadlines should be given in writing;
• deadlines should be diarised so that reminders can be sent out to clients, be they sophisticated or inexperienced, in good time to take the necessary steps; and
• clients should be informed of imminent deadlines notwithstanding the withdrawal of instructions.