No duty on solicitor to challenge client's decision not to pursue a specific head of claim

Solicitors are not compelled to challenge a client’s decision to abandon a particular head of claim, especially in commoditised litigation, the Court of Appeal has ruled.

Appeal judges in Graham Thomas v Hugh James Ford Simey Solicitors revisited a professional negligence claim in which the appellant had sought damages for vibration white finger (VWF), a mining-related condition.

A low-cost scheme was set up in 1999 to handle claims relating to the condition, and in 2001 the appellant instructed Devon-based firm Ford Simey to put in a claim.

A medical examination supported Thomas’ claim for both general damages and special damages, the latter requiring further questionnaires to pursue.

Thomas met with his solicitor Barbara Kinsey twice, before deciding not to pursue special damages and instead to accept an offer of general damages, which was awarded at £10,3482.

In their first meeting, the Court of Appeal ruling said, Kinsey explained the scheme in general terms. She then sent a standard letter explaining what a claim for special damages would entail.

In the second meeting the special damages process was discussed, including the requirement to complete further questionnaires and for anyone assisting the claimant with domestic tasks to complete questionnaires.

Kinsey’s notes from the meeting record that Thomas did not want to wait to process the special damages claim and was “quite happy to accept” the general damages.

It was also understood that Thomas was concerned about asking those that had helped him with domestic tasks to support his claims as he had paid them cash in hand for the help.

However, in 2008, Thomas saw an advertisement from North West-based personally injury firm Mellor Hargreaves Limited, which claimed that “Thousands of ex miners have had VWF claims settled for much less than they should have received”.

On Mellor Hargreaves’ advice he commenced proceedings against the respondents at Oldham County Court in December 2010, claiming that Ford Simey had provided inadequate advice about the potential claim for special damages in respect of domestic services.

The claim was dismissed on 28 January 2016 on a number of grounds, including that Kinsey’s failure to provide a valuation for the potential claim was not a breach of duty and that her stating that the value of services claims “can be significant” was sufficient.

The judge, Mr Recorder Cameron, ruled: “I do not think it is – or ought to be – the role of a solicitor to tempt his or her client with ‘astronomical’ sums once it appears to have become apparent that a claim for such sums is not practicable”.

On appeal, Lord Justice Jackson upheld the previous ruling. He said: “If a client instructs his solicitor that he does not wish to pursue a particular head of claim and that he does not have evidence to support it, the solicitor is not necessarily under a duty to challenge that decision or try to change the client’s mind.”

Jackson highlighted the fact that the claim was “modest” and being run under a fixed-costs arrangement.

He said: “Neither advocates nor judges should lose touch with reality” when dealing with “high-volume, low-cost” claims scheme such as the one used in Thomas’ case.

“There must be a sensible limit upon what we can expect solicitors to do in such cases,” he added.

The judge expressed admiration for Ford Simey’s file “bearing in mind the small amount of costs which they receive at the end”.

The decision shores up an earlier ruling in Procter v Raleys Solicitors that an “unrealistic standard” should not be applied to litigation conducted under commoditised schemes.

In his conclusion, Jackson said it was “regrettable” that Mellor Hargreaves had waded in on the case and encouraged the claimant to seek a “top up” award.

He said the second firm of solicitors had “turned his head” and made him “prepared to advance incorrect assertions”.

“The justice system exists to enable injured parties to recover compensation for genuine wrongs,” he concluded. “It does not exist to serve artificial claims stirred up by advertisements.”

Hannah Gannage-Stewart, reporter

Hannah.Gannage-Stewart@solicitorsjournal.co.uk